318 F.3d 316 (1st Cir. 2003), 02-1765, U.S. v. Julien

Docket Nº:02-1765.
Citation:318 F.3d 316
Party Name:UNITED STATES, Appellee, v. Garry JULIEN, Defendant, Appellant.
Case Date:February 03, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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318 F.3d 316 (1st Cir. 2003)

UNITED STATES, Appellee,

v.

Garry JULIEN, Defendant, Appellant.

No. 02-1765.

United States Court of Appeals, First Circuit

February 3, 2003

Heard Jan. 10, 2003.

Page 317

William Maselli for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

Garry Julien was charged with conspiracy with intent to distribute cocaine base and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841 (2000) and 18 U.S.C. § 2 (2000). He was tried in December 2001 along with a codefendant, Brian Goodine. The five-day trial ended with a conviction for Goodine but a hung jury for Julien; over Julien's objection, the district court declared a mistrial on the charges against him.

After trial, Julien moved to dismiss the indictment on the basis that a second trial on the charges would violate the Double Jeopardy Clause. U.S. Const, amend. V. The district court denied the motion. At

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the second trial, Julien was convicted on the possession with intent charge. He now appeals the denial of his motion to dismiss the indictment. He also raises insufficiency of the evidence and prosecutorial misconduct claims. We reject all of his claims and affirm the conviction.

I.

We sketch only the basic facts here, and delve into the details, where they are relevant, in the legal analysis. Julien was arrested on March 19, 2001, when the police responded to a report from a motel manager in Saco, Maine about the odor of marijuana coming from a room. When the police entered, they found Julien, Goodine, and two other occupants (Ricardo King and Bertram Leslie). There was drug paraphernalia, cash, and a small quantity of loose marijuana and bagged crack cocaine in the room. On the ground outside the room's open window, police discovered approximately 200 grams of crack cocaine in a plastic bag, as well as some marijuana, razor blades, an electronic scale, and a plate with what appeared to be cocaine residue. Julien, King, and Goodine were indicted; King became a cooperating witness against the others and testified at both trials. Leslie was not charged; he also testified at both trials.

The first trial, with Julien and Goodine as defendants, began on Monday, December 10, 2001. The jury heard some fourteen hours of testimony over the following three and a half days, and began deliberating just before 1 p.m. on Thursday, December 13. The next day at 8 p.m., after sixteen total hours of deliberations, the jury indicated that it was deadlocked on charges against one defendant. The court accepted a guilty verdict as to Goodine and declared a mistrial as to Julien.

Julien moved to dismiss the indictment on double jeopardy grounds on December 21, 2001. In a comprehensive Memorandum and Order issued January 4, 2002, the district court denied the motion. Julien did not take an interlocutory appeal of that denial before the second trial, as he was entitled to do under Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Instead he chose to undergo the second trial before raising the double jeopardy issue on appeal.

Julien's second trial, held before a different judge in March 2002, ended with his conviction on the charge of possession with intent to distribute; there was a hung jury on the conspiracy count. On the government's motion, the indictment on the conspiracy charge was dismissed on June 12, 2002.

II.

Julien's appeal raises four issues. He argues that there was no manifest necessity for the declaration of a mistrial in the first trial; that there was insufficient evidence at the first trial to support a conviction, both as to conspiracy and as to possession with intent to distribute; that the evidence on both counts was insufficient at the second trial; and that certain actions by the prosecution in the two trials constitute government misconduct.

A. Mistrial and Double Jeopardy

The Double Jeopardy Clause requires that no person "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const, amend. V.

For a defendant, there are serious consequences stemming from enduring two trials on a single set of criminal charges. Among other things, the government may gain an advantage at the second trial for having seen the defense case at the first trial. As a result, courts do not lightly grant mistrials after jeopardy has attached.

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See Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Still, a hung jury is the classic instance where a mistrial may be warranted, and that has been so in our jurisprudence for at least 175 years. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) (Story, J.). The government must shoulder the "heavy" burden of justifying a mistrial by demonstrating the "manifest necessity" for a mistrial when the defendant objects...

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