U.S. v. Roberts, s. 80-1626

• Decision Date: 17 February 1981
• Docket Number: 80-1627,Nos. 80-1626,s. 80-1626
• Citation: 640 F.2d 225
• Parties: UNITED STATES of America, Appellee, v. Neal T. ROBERTS, Appellant. UNITED STATES of America, Appellee, v. James Albert ROBISON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 225

640 F.2d 225

UNITED STATES of America, Appellee, v. Neal T. ROBERTS, Appellant.

UNITED STATES of America, Appellee, v. James Albert ROBISON, Appellant.

Nos. 80-1626, 80-1627.

United States Court of Appeals Ninth Circuit.

Submitted Sept. 22, 1980.

Decided Feb. 17, 1981.

Thomas Henze, Phoenix, Ariz., for Robison.

William H. McLean, Phoenix, Ariz., for Roberts.

W. Ronald Jennings, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

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

Before SKOPIL, POOLE and NORRIS, Circuit Judges.

SKOPIL, Circuit Judge.

INTRODUCTION

Appellants, Neal Roberts and James Robison, appeal the denial of their motion to dismiss the indictment against them. They assert that the retrial of their case was barred on double jeopardy grounds. The district court denied the motion, and the defendants filed an interlocutory appeal pursuant to Abney v. United States, 431 U.S. 651, 662 n.8, 97 S.Ct. 2034, 2041-2042, 52 L.Ed.2d 651 (1977). We affirm.

FACTS

In 1977 Neal Roberts and James Robison were indicted for attempting to blow up a federal building in Arizona. The case was transferred to the Southern District of California, where the trial was held in February 1978. After the jury failed to reach a verdict, the district court declared a mistrial. In May 1978 Roberts and Robison were retried and convicted. In May 1980 this court reversed the convictions. United States v. Roberts, 618 F.2d 530 (9th Cir. 1980). This court held that the prosecutor committed reversible error when, over an objection sustained by the court, he attempted to bolster the credibility of the chief prosecution witness with evidence outside the record. Specifically, the prosecutor made the following closing argument:

(PROSECUTOR): The testimony is open as to Roberts and Mr. Adamson. They are inconsistent. One of them has to be lying....

.... I suggest to you ladies and gentlemen, that John Harvey Adamson had everything to lose by lying. I want you to read the plea agreement that is Government's Exhibit No. 1.... In that plea agreement he has agreed to testify in four matters.... If he was caught lying as to material facts in any one of these matters, then his plea agreement would be called off....

Detective Sellers has been pointed out throughout the trial as sitting in the courtroom during the testimony, particularly of John Harvey Adamson. I would suggest to you that Detective Sellers is not here on vacation. He had a mission to serve and that mission was to sit and listen to the testimony of John Harvey Adamson.

(DEFENSE COUNSEL): If the Court please, there is no evidence of this, and I don't know if Mr. Sellers is here on vacation or not.

THE COURT: Yes, let's stay with the record.

(PROSECUTOR): I submit to you, ladies and gentlemen, that he was here to listen to that testimony and make sure that

(DEFENSE COUNSEL): Object on the same grounds. It's the same. It's not in evidence.

(PROSECUTOR): If Adamson lied, ladies and gentlemen, the plea agreement is called off.

Roberts, 618 F.2d at 533.

This court concluded that the argument constituted improper "vouching" for the credibility of a government witness.

In reversing the conviction this court found that the prosecutor's statements were not harmless and stated that it was not "persuaded that the jury would have convicted the defendants had it not been exposed to improper argument." United States v. Roberts, supra, 618 F.2d at 535.

After the retrial had been scheduled, the defendants filed their joint motion to dismiss on double jeopardy grounds.

PROSECUTORIAL MISCONDUCT

We do not condone the action of the prosecutor in this case. In several cases this court has noted improper conduct by the prosecutors from the District of Arizona, the most recent of which are United States v. Berry, 627 F.2d 193 (9th Cir. 1980), and United States v. Bemis, 620 F.2d 311 (9th Cir. 1980) (memorandum disposition).

We once again direct the attention of the prosecutors to the Supreme Court's admonitions set forth in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935) and reiterated by this court in Berry:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

Berry, supra at 198.

A continuing pattern of such conduct may result in disciplinary action pursuant to Fed.R.App.P. 46 against prosecutors who engage in misconduct. Continued prosecutorial misconduct may show a course of conduct establishing the intent to provoke a mistrial and bring into play double jeopardy considerations.

DOUBLE JEOPARDY CLAIM

The double jeopardy clause has been applied to bar retrial in cases where a reversal or judgment of acquittal is based on insufficiency of the evidence. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). The bar to retrial has traditionally been held inapplicable to reversals or mistrials based on trial error. Id. at 15, 98 S.Ct. at 2149. This distinction is based on the rationale that double jeopardy interests are plainly offended by retrial after unsuccessful attempts to marshal sufficient evidence against an individual. Reversal on mistrials for a defect in the judicial process sufficient to constitute reversible error, however, usually implies nothing about the guilt or innocence of the defendant. Society retains a substantial interest in ensuring that the guilty are punished.

The courts have extended the double jeopardy clause to protect defendants "against governmental actions intended to provoke mistrial requests." United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). The general rule is that:

A motion for mistrial by the defendant normally serves to remove any barrier to reprosecution. Such is not the case, however, when the prosecutor has through bad faith or overreaching "goaded" the defendant into requesting a mistrial.

See, e. g., United States v. Calderon, 618 F.2d 88, 90 (9th Cir. 1980); Moroyoqui v. United States, 570 F.2d 862, 864 (9th Cir. 1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1651, 56 L.Ed.2d 86 (1978).

Although the prosecutor's comments appear to have been intentional and were not harmless, there has been no showing that the comments were deliberately made to provoke a mistrial. United States v. Jorn, 400 U.S. 470, 482, 91 S.Ct. 547, 555, 27 L.Ed.2d 543. Without such a showing, retrial is not barred. See United States v. Calderon, supra, 618 F.2d at 90; United States v. Sanders, 591 F.2d 1293, 1296 n.4 (9th Cir. 1979). See also Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (Rehnquist, Circuit Justice, 1977).

In this context the protection afforded by the double jeopardy clause must be reserved for instances in which "there has been an 'abuse' of the trial process resulting in prejudice to the accused ... such as to outweigh society's interest in the punishment of crime." Jorn, supra, 400 U.S. at 492, 91 S.Ct. at 560 (Stewart, J., dissenting); Mitchell v. Smith, 633 F.2d. 1009 at 1012; United States v. Gentile, 525 F.2d 252, 257 (2d Cir. 1975). Accordingly, we decline to extend the bar on retrial to cases involving gross negligence without the intent to provoke a mistrial. This case does not fall under the court's reasoning in Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1081. The double jeopardy bar does not apply. The district court's decision is affirmed.

NORRIS, Circuit Judge, dissenting:

I respectfully dissent.

The majority takes the position that the double jeopardy clause protects a defendant from retrial after intentional misconduct taints the original trial only if the prosecutor deliberately tried to provoke a mistrial. I do not believe that the protection afforded by the double jeopardy clause is so narrow. This case presents a prime example of intentional prosecutorial overreaching which should bar retrial even without a finding of intent to provoke a mistrial.

The prosecutor's conduct, set forth in the majority opinion, was in blatant disregard of the stricture against vouching for a witness in appealing to the jury to return a conviction. The prosecutor knew he had a tough case; guilt or innocence turned on whether the jury believed the prosecution's witness or the defendant. In going outside the record, exhorting the jury to believe his witness instead of the defendant because detective Sellers had been sitting in the courtroom ready to revoke the witness's plea agreement if he lied, the prosecutor made a mockery of the rules of fair jury argument. Moreover, he completed his transgression in disregard of an admonition by the trial court.

I.

I believe that such flagrant prosecutorial overreaching would bar a retrial following a mistrial. ¹ The Supreme Court has strongly indicated that the double jeopardy clause protects defendants from bad faith prosecutorial misconduct...