U.S. v. Gandolfo

• Decision Date: 18 June 1999
• Docket Number: No. 99-1078,99-1078
• Parties: (8th Cir. 1999) United States of America, Appellee, v. Michael Gandolfo Albanese, Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 389

195 F.3d 389 (8th Cir. 1999)

United States of America, Appellee, v. Michael Gandolfo Albanese, Appellant.

No. 99-1078

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: June 18, 1999

Decided: October 5, 1999

Appeal from the United States District Court for the Western District of Missouri.

Before BOWMAN and HEANEY, Circuit Judges, and LONGSTAFF,¹ District Judge.

BOWMAN, Circuit Judge.

Michael Gandolfo Albanese was charged with conspiring to distribute five or more kilograms of cocaine in violation of 21 U.S.C. 841 (1994). Two prior proceedings having ended in mistrials, Albanese was convicted in a third proceeding and sentenced to 360 months of incarceration. He appeals, claiming that government misconduct caused the second proceeding to end in a mistrial and that the Double Jeopardy Clause therefore barred his subsequent reprosecution. Albanese also challenges the District Court's admission of testimony from a witness compensated by the Government. We affirm.

I.

Albanese was convicted for conspiring with two other men, Nicholas LanFranca and Joseph Riley. In January 1997, Riley arranged to purchase five kilograms of cocaine from Joseph Bartels. Riley intended to rob and kill Bartels instead of paying for the cocaine.

On January 30, 1997, Riley met Bartels at a motel in Platte County, Missouri. While Albanese and LanFranca waited outside the motel in Riley's car, Riley entered the motel room and shot Bartels, seriously wounding him. Bartels was a paid cooperating witness for the Federal Bureau of Investigation (FBI), and FBI agents were monitoring the purported drug transaction from an adjoining room. Agents rushed into the motel room and shot and killed Riley. Other FBI agents then arrested Albanese and LanFranca outside the motel.

Albanese and LanFranca were charged in federal court for their role in the conspiracy, and Albanese was charged in state court for Riley's death. Because LanFranca was on supervised release at the time of his arrest, the Government also moved to have his release revoked. Bartels testified at LanFranca's revocation hearing in March 1997 regarding LanFranca's participation in the conspiracy, and the District Court ² revoked LanFranca's release. LanFranca then pleaded guilty to the federal drug-conspiracy charge and agreed to testify against Albanese.

Albanese's federal criminal trial was scheduled on three separate occasions. The District Court discontinued the first proceeding in December 1997 after voir dire because pretrial publicity regarding Albanese's state murder trial had tainted the venire.³ Albanese then went to trial a second time in February 1998. This trial reached jury deliberations, but the District Court declared a mistrial after the jury could not reach a unanimous verdict. Finally, Albanese went to trial a third time in March 1998. He was convicted and subsequently sentenced. Seeking reversal of his conviction, Albanese appeals.

II.

Normally the Double Jeopardy Clause allows a criminal defendant to be retried after a prior proceeding ends in a hung jury. See Richardson v. United States, 468 U.S. 317, 323-24 (1984); United States v. Perez, 22 U.S. (9 Wheat.) 579, 579-80 (1824). In Oregon v. Kennedy, 456 U.S. 667 (1982), however, the Supreme Court recognized an exception to this rule where the Government engages in conduct intended to provoke a criminal defendant to move for a mistrial, and the defendant successfully moves for a mistrial based on this misconduct. See id. at 679. Albanese claims that government misconduct regarding inconsistent testimony by Bartels, a paid government witness, caused the February 1998 trial to end in a mistrial, and therefore Kennedy bars his retrial and conviction.

Bartels gave inconsistent accounts of LanFranca's role in the conspiracy at LanFranca's revocation hearing in March 1997 and at Albanese's conspiracy trial in February 1998. At LanFranca's revocation hearing, Bartels testified that LanFranca participated actively in the conspiracy and knew of Riley's desire to rob and kill a drug dealer. Specifically, Bartels testified that, during a March 1996 conversation regarding a proposed drug deal, LanFranca stood two feet away from Riley and Bartels and, although not speaking, appeared to back Riley up when Riley suggested robbing and killing a drug dealer. See Transcript of Proceedings (Partial) dated March 3, 1997, at 8, 14-15. At Albanese's February 1998 trial, however, Bartels minimized LanFranca's participation in the drug conspiracy, testifying that LanFranca was "present, but he was not close to [Bartels and Riley] and he was not involved in that specific conversation" when Riley suggested to Bartels that they should rob and kill a drug dealer. See Transcript of [the February 1998] Proceedings, Cross-Examination of Joseph Bartels at 25. According to Albanese, Bartels' inconsistency helped the Government because Bartels' March 1997 testimony would have contradicted, but the February 1998 testimony supported, LanFranca's February 1998 testimony that Albanese knew Riley wanted to rob and kill a drug dealer, while LanFranca himself was unaware of Riley's plan. Cf. Partial Transcript of [the February 1998] Proceedings, Cross-Examination of Nicholas J. LanFranca at 16-20.

Albanese alleges the Government engaged in misconduct when it failed to disclose the inconsistencies in Bartels' testimony. The same Assistant United States Attorney (AUSA) examined Bartels at LanFranca's March 1997 revocation hearing and during Albanese's February 1998 trial. When Bartels offered testimony in the February 1998 trial that was inconsistent with his previous testimony, however, the AUSA did not tell the District Court or defense counsel ⁴ about Bartels' previous testimony. Rather, one of the District Court's law clerks who observed both proceedings told the judge that Bartels' February 1998 testimony contradicted his earlier testimony. The District Court then alerted defense counsel, and--after the AUSA provided defense counsel with a transcript of Bartels' testimony at the revocation hearing--permitted defense counsel to reopen his examination of Bartels and reveal the prior inconsistent testimony to the jury.

Bartels' inconsistent testimony having been revealed, the case went to the jury, which failed to reach a unanimous verdict. Albanese's argument, essentially, is that the hung jury and the resulting mistrial were caused by the inconsistencies in Bartels' testimony that were shown to the jury. Albanese further argues that, because government misconduct produced the inconsistent testimony that caused the February 1998 proceeding to end in a mistrial, Kennedy bars Albanese's subsequent reprosecution.

There are at least three major problems with Albanese's argument. First, Albanese relies only on conjecture when he claims that the events surrounding the revelation of Bartels' prior inconsistent testimony caused the hung jury. Albanese claims we should adopt his hypothesis because, he argues, the only explanation as to why the February 1998 jury would not convict Albanese, while the jury in the state murder trial and the March 1998 jury did convict him, was that only the February 1998 jury was privy to the Government's failure to disclose Bartels' prior inconsistent testimony. Many other factors, however, might explain why the February 1998 jury reached a different conclusion. We do not and as a practical matter cannot know why the February 1998 jury failed to reach a unanimous verdict. See United States v. Felix, 996 F.2d 203, 209 (8th Cir. 1993) (stating that there is no way to know why a jury reaches a particular verdict). Therefore, we hesitate to speculate in the way Albanese urges.

Second, the circumstances in which Kennedy bars retrial are unlike the present case. In Kennedy, the Court was concerned that a prosecutor, believing a case was not going well and fearing the jury might acquit the defendant, would engage in misconduct in the hope of provoking the defendant to move for a mistrial. The Court was reluctant to allow the prosecution to put the defendant in the position of having to choose either to refrain from moving for a mistrial, instead hoping any conviction gained by the misconduct would be overturned, or to move for a mistrial, thus giving the prosecutor another opportunity to try the case. See Kennedy, 456 U.S. at 673-76. In this case, however, Albanese never faced this Hobson's choice: Albanese faced reprosecution only because the jury, for whatever reason, failed to reach a unanimous verdict in the February 1998 trial.

Third, and most importantly, the Government's conduct in this case simply does not rise (or, more accurately, sink) to the level at which Kennedy would bar retrial. Several grounds support this conclusion. First, Kennedy forbids a retrial only if the government intentionally engaged in the conduct that caused the defendant to move for mistrial. See Jacob v. Clarke, 52 F.3d 178, 181 (8th Cir. 1995) (stating that, under Kennedy, a defendant "must prove intentional prosecutorial misconduct"). Albanese does not accuse the Government of intentionally causing Bartels to change his testimony, nor does Albanese offer proof that the Government expected that Bartels would change his testimony. The District Court, in fact, stated it did not believe that the Government engaged in intentional misconduct. See Excerpts of Sentencing Transcript, Appellant's Appendix at 84. This finding is not clearly erroneous.⁵

In addition, Albanese cannot point to any right the Government violated by failing to notify him that Bartels was testifying inconsistently. Bartels gave his prior testimony at a public proceeding, so the Government's failure to turn over a transcript of Bartels' prior testimony violated neither Brady v. Maryland, 373 U.S. 83, 87 (1963), nor the Jencks Act, 18 U.S.C. 3500 (1994). See United States v. Jones, 160 F.3d 473, 479 (8th Cir. 1998) (finding no Brady violation...