U.S. v. Aviles-Sierra, 07-2066.

• Decision Date: 11 July 2008
• Docket Number: No. 07-2066.,07-2066.
• Citation: 531 F.3d 123
• Parties: UNITED STATES of America, Appellee, v. Edwin AVILES-SIERRA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

531 F.3d 123

UNITED STATES of America, Appellee, v. Edwin AVILES-SIERRA, Defendant, Appellant.

No. 07-2066.

United States Court of Appeals, First Circuit.

Heard May 9, 2008.

Decided July 11, 2008.

Vernon Benet Miles, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, were on brief for appellee.

Hector L. Ramos Vega, with whom Joseph C. Laws, Jr., Federal Public Defender, and Hector E. Guzman-Silva, Assistant Federal Public Defender, were on brief for appellant.

Before LYNCH, Chief Judge, and LIPEZ and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

Defendant-appellant Edwin Aviles-Sierra was tried on charges of possessing and importing cocaine with the intent to distribute it. His trial ended after he requested and was granted a mistrial. He argues, in this interlocutory appeal from a denial of his motion to dismiss on double jeopardy grounds, that his reprosecution should be barred because the government deliberately provoked the mistrial. The district court concluded, as a factual matter, that the mistrial was not deliberately provoked. Finding no clear error in that conclusion, we affirm.

I.

On November 27, 2006, a canine alert led agents from Immigration and Customs Enforcement (ICE) to find a plastic bag containing cocaine hidden in Aviles's van when he arrived in Puerto Rico aboard a car ferry from the Dominican Republic. Aviles was questioned by ICE agents and arrested. He was indicted on charges of possessing and importing cocaine into the United States with the intent to distribute, in violation of 21 U.S.C. §§ 952(a) and 841(b)(1)(A)(ii).

On the second day of his trial, during the prosecution's case-in-chief, ICE Agent Angelico Santiago-Rivera testified that the defendant had been asked by agents "if he was going to take the blame for it [the cocaine], and he said yes." Defense counsel immediately objected on grounds that he had no prior knowledge of this inculpatory statement by the defendant and that it was not part of the discovery provided by the government prior to trial. He then moved for a mistrial.

The court took the motion under advisement during the lunch break. Upon returning from the recess, the court asked the prosecutor whether he had knowledge of the inculpatory statement. The prosecutor stated that, although he had talked with Agent Santiago about the case, he "did not recall specifically that information being indicated." The court noted that the inculpatory statement did not appear in the agent's written report.

Defense counsel then questioned Agent Santiago, who admitted that he had not included the inculpatory statement in his written report and stated that he did not remember whether he had told the prosecutor about the statement. Defense counsel moved for a judgment of acquittal and renewed his motion for a mistrial on the basis of the discovery violation by the government. In his argument, counsel also cited several previous cases in which, he alleged, the same prosecutor had committed discovery violations.

The prosecutor responded by stating that, "in an effort to protect [his] own credibility, [his] own reputation, as well as that of the agency and the agent, [he was] not opposed to a mistrial if that's what we have to do in order to protect Defendant's interest." Although the court stated that it had "a couple of cases" that would have supported a decision to deny the defendant's motions, the court nevertheless agreed to grant the mistrial motion because both parties had now requested a mistrial.

After the grand jury returned a superseding indictment, Aviles moved for dismissal of the indictment on double jeopardy grounds and because of the prosecution's discovery violation.¹ The memorandum of law accompanying his motion described what Aviles perceived to be the gravity and inexplicability of the discovery violation, and stated that once the agent had testified about the inculpatory statement "a mistrial motion was guaranteed." However, the memorandum stopped short of asserting that the discovery violation was intentional or that the statement had been intentionally withheld — by either the prosecutor or the case agent — and then revealed at trial for the purpose of provoking a mistrial.²

The district court denied the motion to dismiss. In its written decision, the court explained:

The Court cannot find that the United States acted to force Aviles into requesting a mistrial deliberately. The Court asked the Assistant U.S. Attorney in the case if he had heard the statement before that day, and he represented to the Court that he had not. Furthermore, Agent Santiago had not included the statement in his report and when answering questions from defense counsel he testified that he did not remember telling the Assistant U.S. Attorney about the statement. Moreover, even without the statement, the evidence presented at trial was sufficient to support a guilty verdict and any prejudice that Aviles could have suffered because the jury heard the statement would be negligible. Under the circumstances, the Court does not find any bad faith on the United States' part in not disclosing the statement.³

Aviles then filed this appeal.

II.

Although a defendant cannot ordinarily pursue an immediate appeal from an interlocutory order in a criminal case, we permit interlocutory appeals from denials of motions to dismiss on double jeopardy grounds. Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Toribio-Lugo, 376 F.3d 33, 37 (1st Cir.2004). We review the district court's denial of such a motion to dismiss for abuse of discretion. Toribio-Lugo, 376 F.3d at 38. We accept the district court's factual findings unless they are clearly erroneous and review rulings of law de novo. Id.

The Double Jeopardy Clause provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. However, when a defendant consents to a mistrial, double jeopardy does not bar reprosecution unless "the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). As the Supreme Court has explained, mere prosecutorial error is insufficient:

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant's motion for a mistrial cons...