U.S. v. Quiala

• Decision Date: 21 April 1994
• Docket Number: No. 91-5330,91-5330
• Citation: 19 F.3d 569
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wilberto QUIALA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 569

19 F.3d 569

UNITED STATES of America, Plaintiff-Appellee, v. Wilberto QUIALA, Defendant-Appellant.

No. 91-5330.

United States Court of Appeals Eleventh Circuit.

April 21, 1994.

Yolanda Morales, Kathleen A. Hamilton, Coconut Grove, FL, for defendant-appellant.

Linda Collins Hertz, Alice Ann Burns, Edward Ryan, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BLACK, Circuit Judge, and DYER and SMITH ^*, Senior Circuit Judges.

DYER, Senior Circuit Judge:

Quiala appeals the denial of his motion to dismiss the indictment on double jeopardy grounds. Following the district court's sua sponte declaration of a mistrial in Quiala's first trial, Quiala was retried and convicted of conspiracy and possession with intent to distribute at least one kilogram of cocaine on board a vessel, in violation of 46 U.S.C.App. Sec. 1903(a), (g), and 18 U.S.C. Sec. 2. Because we find that the retrial of Quiala violated his rights under the Double Jeopardy Clause,

Quiala's conviction is reversed and his sentence vacated.

BACKGROUND

Quiala's first trial on cocaine charges began on July 16, 1990 in Key West, Florida. The captain of a freighter and the crew members, including Quiala, were tried together. The freighter had 3,000 pounds of cocaine concealed in a hidden compartment.

Quiala's trial was bifurcated on July 6, 1990, as a compromise solution offered by the district court upon Quiala's request for a mistrial in the form of severance from his nine codefendants. Quiala had sought severance on the ground that he wished to reveal, through the testimony of Special Agent Haynes in the government's case-in-chief, his original post-arrest statements which would have implicated his codefendants. The district court permitted Quiala to offer his proffered evidence in a bifurcated trial following the return of the jury's verdicts as to the nine codefendants. Quiala again moved for severance and the impaneling of a new jury to consider his case based upon the alleged cumulative prejudice that he claimed had resulted from codefendants' closing arguments. The district court denied the motion.

On July 23, the jury completed its deliberations as to Quiala's codefendants and returned guilty verdicts as to all nine. Quiala's bifurcated trial continued for the remainder of that day, with closing arguments scheduled for the next morning.

Quiala's counsel, Diane Ward, did not appear in court the next morning at 9:30 a.m. when the trial was scheduled to begin. Ms. Ward and court personnel had left Key West for the night of July 23, with plans to return from Miami in the morning. Mechanical difficulties on the airplane leaving Miami for Key West at approximately 8:20 a.m. delayed the scheduled travel to Key West of Ms. Ward, as well as the courtroom deputy, the court reporter and the interpreter.

The problem of the flight's mechanical difficulties which caused the delay was communicated by the courtroom deputy to the judge's secretary. She also left a message on an answering machine at the judge's Key West office. The judge's staff and Ms. Ward took the next available flight, and arrived in Key West at 10:30 a.m. on July 24.

At approximately 10:20 a.m., the district court declared a mistrial based upon defense counsel's failure to appear. The court noted that the earliest that counsel could get to court from the airport was 11:20 or 11:30 a.m., approximately one hour later.

A second trial on the charges against Quiala was scheduled for January 15, 1991. Quiala filed a motion to dismiss the indictment on January 14, 1991, based on double jeopardy grounds. The district court denied the motion. On January 18, Quiala was found guilty of the cocaine smuggling offenses charged in indictment. He is serving a sentence of 235 months incarceration.

DISCUSSION

Standard of Review

We review the denial of defendant's motion to dismiss the indictment under an abuse of discretion standard. United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971); United States v. Chica, 14 F.3d 1527, 1530 (11th Cir.1994).

Analysis

The Double Jeopardy clause of the Fifth Amendment provides that: "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "[W]here the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal.' " Jorn, 400 U.S. at 484, 91 S.Ct. at 557 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)). From the point forward of the jury being empaneled and sworn, "the defendant has a constitutional right, subject to limited exceptions, to have his case decided by that particular jury." Chica, 14 F.3d at 1531 (citing Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978) and quoting United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir.1993) (footnote omitted)).

In Quiala's first trial, the jury was sworn, with testimony presented in the course of seven days of the trial before the jury was discharged and a mistrial declared. The declaration of mistrial did not follow a defense motion. In their opposing arguments, Quiala contends that the district court erred in sua sponte declaring a mistrial, while the government asserts that the mistrial was declared at the behest of the defendant, and, thus, retrial was not barred.

Pending Motion

Retrial of Quiala would not be barred if the district court declared a mistrial based on a pending motion before the court. See United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976); United States v. Buljubasic, 808 F.2d 1260, 1265 (7th Cir.), cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987). A motion made by defendant which states a particular ground for mistrial may present a basis for the district court to grant the motion on that ground as necessitated by circumstances which may develop later in the trial.

The government's arguments in support of its position that the mistrial was either requested or induced by Quiala are unpersuasive. In rejecting the government's argument in this case, we do not foreclose, in the unusual case, exercise of the district court's discretion to grant a mistrial after denial of a motion which states a particular ground that is supported by later events in the trial. In such a case, as in Buljubasic, a trial judge may finally propose to give the defendant what he sought. However, such a circumstance did not exist in Quiala's trial.

The remarks of the trial judge that Quiala had been seeking severance and a mistrial throughout the trial do not establish a proper basis for granting mistrial on the unrelated basis of defense counsel's absence or delay in arriving for trial. There was clearly a lack of consent of the defendant under these circumstances. We find no support in the record for the government's assertion that the district court granted a pending defense motion for a mistrial.

Strategic Decision

The government also contends that the declaration of the mistrial was prompted by defense counsel's strategic decision. A defendant's strategic decision to seek mistrial does not bar retrial absent judicial or prosecutorial provocation. See United States v. Miller, 742 F.2d 1279, 1285 (11th Cir.1984), cert. denied, 469 U.S. 1216, 105 S.Ct. 1194, 84 L.Ed.2d 340 (1985).

We find a total lack of evidence of a deliberate absence from trial by Quiala's counsel. ¹ There is no basis in the record to conclude that Ms. Ward sought to provoke the mistrial on the morning of July 24. Counsel's returning to Miami for the night on July 23 and encountering an unavoidable delay caused by the canceled airline flight on July 24 does not support a deliberate but disguised strategic decision on the part of counsel to have the court declare a mistrial.

Unless induced by the defendant, the unfairness to the defendant of an unresolved accusation results from having his trial aborted before it is completed and being subjected to a second prosecution. See Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978). The defendant's right to be free from a second prosecution for the same offense needs no additional demonstration of prejudice. See Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 1073-74, 35 L.Ed.2d 425 (1973).

Manifest Necessity

Manifest necessity is an essential condition to retrial after declaration of mistrial without the consent of the defendant. See, e.g. United States v. Bradley, 905 F.2d 1482, 1486 (11th Cir.1990), cert. denied, 498 U.S. 1089, 111 S.Ct. 969, 112 L.Ed.2d 1055 (1991); We note that the remarks of the district court state that at 9:46 a.m. the judge was unaware of Ms. Ward's whereabouts.

Abdi v. Georgia, 744 F.2d 1500, 1503 (11th Cir.1984), cert. denied, 471 U.S. 1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985). The delayed arrival of counsel in Quiala's first trial, although causing an inconvenience at the conclusion of the trial, does not demonstrate the high degree of necessity for this court to conclude that a mistrial over defendant's objection was appropriate. See Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. at 831. "[T]he Double Jeopardy Clause does not contain a judicial economy exception." Chica, 14 F.3d at 1532.

[The court]:

I wonder has anyone seen the defense counsel, Ms. Diane Ward? I don't see her in the room. She was due here at nine-thirty this morning.

The judge stated that he had received the messages left by the courtroom...