36 F.3d 386 (4th Cir. 1994), 94-5181, United States v. Sloan

Docket Nº:94-5181.
Citation:36 F.3d 386
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Willie E. SLOAN, Defendant-Appellant.
Case Date:September 29, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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36 F.3d 386 (4th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Willie E. SLOAN, Defendant-Appellant.

No. 94-5181.

United States Court of Appeals, Fourth Circuit

September 29, 1994

        Argued July 11, 1994.

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[Copyrighted Material Omitted]

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        ARGUED: Joseph Blount Cheshire, V, Cheshire, Parker & Manning, Raleigh, NC, for appellant. John Douglas McCullough, Asst. U.S. Atty., Raleigh, NC, for appellee. ON BRIEF: Robert Manner Hurley, Cheshire, Parker & Manning, Raleigh, NC, for appellant. Janice McKenzie Cole, U.S. Atty., Raleigh, NC, for appellee.

        Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

        Reversed by published opinion. Judge MOTZ wrote the majority opinion, in which Judge MICHAEL joined. Judge NIEMEYER wrote a dissenting opinion.

        OPINION

        MOTZ, Circuit Judge:

        The sole question presented here is whether the declaration of a mistrial was justified by "manifest necessity." After five trial days in which twenty government witnesses and nine defense witnesses had testified, the district court, sua sponte and over the objection of appellant, Willie E. Sloan, declared a mistrial. The court concluded that because defense counsel had previously indicated Sloan would testify, Sloan's ultimate decision not to testify required declaration of a mistrial. When the government sought to retry Sloan,

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he moved to dismiss the indictment asserting that the prosecution was barred "on the grounds of double jeopardy." The district court denied that motion and Sloan noted an interlocutory appeal. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Von Spivey, 895 F.2d 176, 177 (4th Cir.1990). Because Sloan's decision not to testify did not create a "manifest necessity" requiring declaration of a mistrial, we must reverse. Further prosecution of Sloan on the charges involved in this appeal is now barred by the Double Jeopardy Clause.

       I.

        On April 13, 1993, a ten-count indictment was returned against Sloan in the Eastern District of North Carolina. Sloan was indicted for acts allegedly committed while he served as President of Local 1426 of the International Longshoremen's Association (ILA). These acts included acceptance of payment from an employer in violation of the Taft-Hartley Act, 29 U.S.C. Secs. 186(b)(1) and (d)(2) (Count I), various embezzlements from the union in violation of 29 U.S.C. Sec. 501(c) (Counts II--IX), and mail fraud in violation of 18 U.S.C. Sec. 1341 (Count X).

        Sloan's trial commenced on December 6, 1993. After the court gave the jury preliminary instructions including the direction that "statements, arguments and questions by the lawyers are not evidence," and "[o]pening statements are neither evidence nor arguments," the prosecutor and defense counsel presented their respective opening statements. Defense counsel's opening statement included, in the government's words, an "Horatio Alger-like" account of the "long history of Willie E. Sloan's rise from humble origins to that of a union President." The portion of the defense opening statement, which the government asserts "became improper when the defense was unable to produce the testimony via the defendant" to support it, is set forth in its entirety in the Appendix to this opinion. Although at trial the prosecutor objected--successfully--several times to other portions of the defense's opening statement (that statement consumes 32 pages of the transcript), no objection was made at trial to any part of the opening statement set forth in the Appendix. At no time in his opening statement did defense counsel state that Sloan would testify.

        During the testimony of the government's eighteenth witness, James Earl Carroll, defense counsel first represented that Sloan would testify. Defense counsel wanted to impeach Carroll with a 1983 conviction for bribery and racketeering, asserting that it was because of Carroll's criminal history, not any private animus, that Sloan did not want Carroll to be a union member. The prosecutor conceded that he could not "disagree with [defense counsel's] reasoning," but that many union members had criminal records, which he had "refrained from bringing out" because there was no union prohibition against members with prior criminal convictions. At that point the following colloquy ensued:

The Court: Do you know--is your client going to testify?

[Defense Counsel]: Yes, sir.

The Court: I think I will sustain [the government's] position on this and you can ask him if it was a factor in his determination.

[Defense Counsel]: In order to understand then, it would not be--your honor doesn't feel like in your discretion that the fact that he has admitted bribery here and he's been convicted of bribery in a federal court would be proper impeachment? I mean, I would agree if he hadn't admitted that he'd done it again.

The Court: It's over ten years old and if your man [Sloan] knows about it, he can certainly testify to the fact, whatever it was.

        In accordance with the district court's ruling, defense counsel did not refer to Carroll's previous bribery conviction when cross-examining Carroll.

        The question of Sloan's testimony arose again during the testimony of the next government witness, Scipio Hawkins, a former member of the ILA executive board. Although Hawkins denied knowledge of any attacks on Sloan or any threats outside of those in one union meeting, he acknowledged that he knew that Sloan had filed four grievances

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and a letter with the executive board asserting that he had been attacked by union members. Defense counsel wanted to use the substance of the grievances and letter to impeach Hawkins. The court ruled that Hawkins could identify the documents, but could not be impeached with their contents. Defense counsel stated that, "I'd like for him [Hawkins] as a member of the executive board to identify these as grievances .... and if he says yes ... I'm going to put [them] into evidence"; the government did not object to this "limited extent of ... cross-examination." The following exchange then occurred:

The Court: His [Sloan's] statement--if he[Sloan] wants to testify as to his reasons [for filing grievances], he's got to take the stand to do so.

[Defense Counsel]: I understand, and he shall.

The Court: I understand that you're telling me that he will. But I think that he [Hawkins] can identify them [the grievances and letter]....

[Defense Counsel]: ... if he [Hawkins] can identify these documents as the fact that he got them, then when you compare Willie Sloan's testimony to Scipio Hawkins' testimony, it clarifies both of their testimony for the jury.

The Court: Well, I think they're probably admissible if they're in your case in chief. If Mr. Sloan testifies that he did that, that he filed grievances, and there's no suggestion of any recent fabrication, I think that's probably it....

        Although defense counsel thus received permission to ask Hawkins to identify the documents, defense counsel never did so. When the trial resumed following the luncheon recess, defense counsel did not ask Hawkins any questions about the documents.

        After the government's final witness testified, the government rested its case-in-chief and dismissed five of the embezzlement counts (Counts V-IX). Extensive argument followed on the defense motion to dismiss the remaining counts; the court ultimately denied that motion. 1 The following day, a Friday, the defense began its case-in-chief. The third time the question of whether Sloan could testify was raised was during the testimony of defense witness, Andrew Canoutas, an attorney who had represented Local 1426 and the Sloan family. The prosecutor at a bench conference stated:

I want to get into the issue of bias of this witness, and the fact that [Canoutas] has filed false affidavits, as a matter of impeachment. I don't want to bring out this court's name or anything else, but I want to show that ... in representing Mr. Sloan in a prior federal civil action, in which[Canoutas] filed a false affidavit, that sanctions were imposed.... [Canoutas] represented his client, and he filed a false affidavit on behalf of his client.

        After indicating that it did not "recall" the prior case, the court did not permit this impeachment of Canoutas reasoning that Canoutas had not been sanctioned for deceitful conduct, i.e., submitting false affidavits, but only for "negligent" conduct, i.e., submitting the affidavits without making an investigation. The prosecutor then stated that he intended to ask any witness who had filed a false affidavit about the affidavit and to "ask character witnesses have they heard that Mr. Sloan had filed false affidavits .... [defense counsel] says his client's going to testify." The court declined to decide the propriety of such questions, preferring to wait until they arose.

        During redirect examination of Canoutas, defense counsel inquired about a deed of trust that Canoutas had prepared for Sloan. When the government's objection was sustained, defense counsel argued that the government had been permitted to ask about the deed of trust on cross-examination "for the

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purpose of making it look as if there was something strange about Mr. Canoutas doing it." The court continued to sustain the government's objection to the question on the grounds of hearsay, and defense counsel argued, "If Mr. Sloan is going to testify to it, wouldn't it be corroborative of Mr. Sloan's testimony." The court responded that Sloan could "testify to it" if he wished to but that, because there was "nothing to corroborate in the record at this point," Canoutas could not be questioned on the matter.

        During the testimony of the ninth defense witness, Buster Smalls,...

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