US v. Marren

Decision Date29 August 1989
Docket NumberCrim. No. 87-40045.
PartiesUNITED STATES of America, Plaintiff, v. James R. MARREN, Defendant.
CourtU.S. District Court — Southern District of Illinois

Michael C. Carr, Asst. U.S. Atty., for U.S.

Christopher Heid, Norris City, Ill., for defendant.

MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

This matter is before the Court on defendant Marren's Motion to Dismiss the indictment on the grounds that the double jeopardy provision of the fifth amendment would prohibit his trial. The Court severed defendant Marren from the United States v. Canino, et al., CR 87-40045, trial and declared a mistrial after a hearing on the government's Motion for Disqualification and Severance revealed there was a reasonable possibility that Marren's attorney, Stephen Finta, committed specifically identifiable improprieties in furtherance of the conspiracy for which Marren was on trial, and that the likelihood of public suspicion outweighed the social interests that would be served by Finta's continued participation in the case. Marren essentially asserts in his motion that 1.) the government's disqualification motion was untimely; 2.) attorney Finta did not have sufficient time to prepare for the disqualification motion and the hearing on that motion; 3.) the "manifest necessity" doctrine did not compel a mistrial; and 4.) the Court misapplied the legal standard it chose when disqualifying Finta.

FACTUAL BACKGROUND

On November 14, 1988, this Court heard argument on various motions pertaining to the trial of United States v. Canino, et al., CR 87-40045. James Marren, who was represented by Stephen Finta, was one of five defendants facing trial on charges relating to a marijuana distribution conspiracy. A jury was selected on November 15, 1988, and sworn to try the issues in the case on November 16, 1988. Counsel made opening statements and the government's first witness, Charles Podesta, began his testimony at 10:30 a.m. on November 17, 1988. Podesta's testimony continued on November 18, and the Court declared that a recess would be taken until November 29, 1988, due to the Thanksgiving holiday and prior Court commitments.

On November 29, 1988, the government filed a Motion to Disqualify Stephen J. Finta as attorney of record for defendant Marren and to sever Marren from the Canino, et al. trial. The government alleged in its motion that attorney Finta "knowingly and intentionally participated in activity that furthered the goals of the conspiracy." The government's motion also asserted that Finta's continued representation of Marren would erode public confidence in the integrity of the bar and the legal system. The Court immediately conducted an evidentiary hearing on the government's motion, without objection from Finta or Marren, and ruled that attorney Finta was disqualified from representing Marren. The Court thereafter declared a mistrial as to defendant Marren and severed his trial from that of his co-defendants. Marren subsequently filed a Motion to Dismiss Based Upon Double Jeopardy. The Court will address each argument raised in Marren's motion seriatim.

I. The Government's Motion for Disqualification and Severance was Timely.

Defendant Marren asserts that 1.) attorney Finta had an inadequate opportunity to research the legal issues implicated by the government's motion and insufficient time to procure witnesses for the evidentiary hearing, and 2.) the government is precluded from retrying Marren because it neglected to act on knowledge it possessed prior to the swearing of the jury.

A. The Court was Unaware that Attorney Finta Desired a Continuance.

The Court and defendant Marren apparently agree that "in wikked haste is no profit." G. Chaucer, The Canterbury Tales, Melibee, 1. 2240. Nonetheless, the Court was unaware until now that attorney Finta and defendant Marren wished to continue the hearing on the government's motion. Finta did vaguely state that "I do not have people here today" (Tr. 122) and that his "secretary was going through the files back in the Southern District of Florida." (Tr. 100), but Finta engaged in the following colloquy with the Court when he attempted to conclude the presentation of evidence:

FINTA: But having said that, unless your Honor desires to hear further testimony or facts under these circumstances, we would rest on that:
THE COURT: I'm willing to hear anything you want to present. I don't think it's for me to say, Mr. Finta, what I should hear or not hear. I think it's up to you. Do you have anything further to present to the Court?

(Tr. 122).

Contrary to defendant's assertion that the Court stymied Finta's ability to respond and present evidence, the Court encouraged Finta to introduce any evidence or testimony that would facilitate a fair ruling on the government's motion. At no time did the Court suggest that either the government or attorney Finta would have a limited opportunity to present evidence. If Finta had moved for a continuance to garner evidence and relevant case law, the Court would have happily granted the motion. Finta's statements at the evidentiary hearing undermine defendant's present claim that the Court made a headlong decision to conduct a hearing on the government's unforeseen motion, leaving Finta at a disadvantage. Finta reacted to the government's allegations that he played a nefarious role in Ronald Ball's purchase of a stash house as follows:

I discussed these things in advance at length with Mr. Marren and with other people candidly. These things come as no surprise. We were ready to deal with them when they came up. They weren't earth shattering but we weren't prepared to deal with them necessarily today in terms of having witnesses here and having files here but it is something that we knew the possibility of these things coming up.

(Tr. 121).

Attorney Finta's anticipation of the disclosure of evidence suggesting that he was a participant in the criminal activity for which his client was on trial contradicts his assertions that the Court conducted a peremptory hearing on charges he was unprepared to meet. Defendant's invocation of Local Rule 7, which sets forth the time limits for an adverse party to file a brief responding to dispositive civil motions and all post-trial motions, is of no avail in the context of a criminal trial. The Court is usually confronted with unexpected and often challenging motions in the midst of criminal trials; if defense counsel or the government requests a reasonable extension of time to marshal a response, the Court will always defer a ruling. Attorney Finta never requested a short continuance of the hearing. The Court, which was unfamiliar with the evidence and witnesses Finta believed would refute the government's evidence, was in no position to suggest to counsel what course of action he should take.

B. The Government's Motion was not Untimely.

Defendant asserts that the government is now precluded from retrying him because it failed to act on knowledge it possessed months before the Canino, et al. trial. Assistant United States Attorney ("AUSA") Michael Carr alleged at the hearing that he first knew of Finta's involvement in the Canino, et al. conspiracy on November 23, 1988. Defendant attempts to dispute the government's claim of belated knowledge by referring the Court to an F.B.I. 302 report of witness Robert Wood's statements that were transcribed on February 3, 1988. A "Steve Finta" is identified by Wood as a "front man for James Marren." Document No. 531, Exhibit A, at 9. The Court notes that Finta is mentioned in three sentences on page nine of a thirteen-page report. During the trials resulting from the government's investigation of the entire marijuana smuggling conspiracy, the Court allowed the government to introduce thousands of documents into evidence. Defendant has not identified other evidence in the government's possession that should have alerted the government at an early stage of Finta's alleged wrongdoing. The government asserts that it could not be expected "to glean from this morass the slivers of information" sic implicating Finta. The Court does not find the government's failure to appreciate the significance of this discrete reference to a "Steve Finta" to be unreasonable. The Court observed at the hearing on the government's motion that

I have listened to it all day and I don't ascribe any bad motive to the government in the case, and I'm satisfied that a lot of this did come about at the last minute. I just take judicial notice of the fact that a trial brings on numerous last minute matters and things that have been brewing for months or maybe years will come to a head at the time of trial, and this is probably just another one; when you brief your witnesses and go over these things there is always last minute matters, Mr. Hersch, and you know that, if you are experienced trial lawyers. It happens in every case.

(Tr. 154).

Nothing in defendant's motion persuades the Court to alter its earlier finding that the government's motion was timely and brought in good faith. Obviously, the Court, defendant Marren, and undoubtedly the government regretted that the discovery of Finta's apparent involvement came about after jeopardy had attached. Ronald Ball testified that he had first informed AUSA Carr of Finta's role in the purchase of a stash house on Wednesday, November 23, 1988. (Tr. 57). The Court believes that the government was sufficiently diligent in presenting the evidence of Finta's complicity to the Court as soon as AUSA Carr was apprised of that fact.

II. The Court's Declaration of a Mistrial was Supported by "Manifest Necessity."1

The double jeopardy clause of the fifth amendment bars retrial unless the trial court's declaration of a mistrial was occasioned by "manifest necessity." United States v. DiFrancesco, 449 U.S. 117, 120, 101 S.Ct. 426, 428, 66 L.Ed.2d 328 (1980); Arizona v. Washington, 434 U.S. 497, 505-06, 98 S.Ct. 824,...

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  • US v. Urbana, 89-360-CR.
    • United States
    • U.S. District Court — Southern District of Florida
    • May 10, 1991
    ...an attorney who was allegedly involved in the very conspiracy for which the client is on trial is self-evident." United States v. Marren, 720 F.Supp. 735, 743 (S.D.Ill.1989), aff'd, 919 F.2d 61 (7th Cir. 1990). Because the allegations at issue in this case implicate counsel in the very cons......

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