872 F.2d 507 (1st Cir. 1989), 88-1398, United States v. Rivera

Docket Nº:88-1398.
Citation:872 F.2d 507
Party Name:UNITED STATES of America, Appellee, v. Ramon RIVERA, Defendant, Appellant.
Case Date:April 10, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 507

872 F.2d 507 (1st Cir. 1989)

UNITED STATES of America, Appellee,

v.

Ramon RIVERA, Defendant, Appellant.

No. 88-1398.

United States Court of Appeals, First Circuit

April 10, 1989

Heard Feb. 8, 1989.

Page 508

George J. Skelly with whom Thomas J. Dougherty, by Appointment of the Court, Lori Weiner Lander and Skadden, Arps, Slate, Meagher & Flom, Boston, Mass., were on brief, for defendant, appellant.

Deborah A. Ramirez, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for U.S.

Before BREYER, ALDRICH and SELYA, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

As the result of an undercover investigation aimed at reaching higher-ups, defendant Ramon (Manny) Rivera was tried on three counts of a four count indictment, count one charging conspiracy with John H. Azulay and Martin A. Chutjian, and others presently unknown, until on or about March 31, 1987, to "possess with intent to distribute a quantity of cocaine" in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Count three charged, "acting in concert and in furtherance of [the count one conspiracy with Azulay and Chutjian] [to] knowingly and intentionally distribute a quantity of cocaine" on or about February 11, 1987, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Aiding and Abetting), and count four, "acting in concert and in furtherance of [the count one conspiracy with Azulay and Chutjian] [to] knowingly and intentionally distribute 500 grams or more" of a mixture containing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Aiding and Abetting). On the afternoon of the first day of its deliberations the jury reported that it had agreed on counts one and four, but was still debating count three, and was willing to return and continue in the morning. The court asked the government if it would be content to drop count three if there were convictions on one and four. The government agreed. The defendant was not asked whether he agreed or not. Upon the jury's returning guilty verdicts on counts one and four, the following order was entered dismissing count three.

This action is taken for the reason that Ramon Rivera has been convicted of Counts I and IV of the indictment and it is not in the interest of justice to further prosecute Count III of the indictment.

After Rivera was sentenced on counts one and four it was discovered that the indictments had been returned by a grand jury whose term had expired, and were invalid. At defendant's request the convictions were vacated. Defendant was re-indicted; count one being the same, except to add Ismael Narvez, also known as "Freddy," as another named conspirator. Count three was the same as before, except to be renumbered count two, with count four, in the same terms as before, becoming count three. Defendant went to trial and was duly convicted on all three counts. On counts one and two he was sentenced to ten years each, and on count three, seven years, all to be served concurrently. In addition, he was sentenced to four years supervised release on counts two and three,

Page 509

with a special assessment of $50 on each count. With new counsel, he appeals.

Defendant asserts that double jeopardy barred count two. The invalidity of count three of the first indictment did not destroy defendant's right to claim double jeopardy thereunder. Benton v. Maryland, 395 U.S. 784, 797, 89 S.Ct. 2056, 2064, 23 L.Ed.2d 707 (1969). We have no doubt that he had such a right. On the government's claim to re-prosecute, one need only ask what the court would have said if counts one and four had not been vacated and the government had come back the next week and said it had decided to retry count three after all. It is no better off because counts one and four collapsed. The government made what turned out to be a poor concession, not a conditional one.

The government argues that, in effect, what occurred was a mistrial. We think this too favorable, but even were it correct, it was the type of mistrial that does not, in the absence of consent, permit reactivation. A mistrial declaration that is not consented to by the defendant must be required by "manifest necessity" or the "ends of public justice," or it is a bar to further prosecution. See Illinois v. Somerville, 410 U.S. 458, 468-71, 93 S.Ct. 1066, 1072-74, 35 L.Ed.2d 425 (1973). There was no possible necessity here.

The more serious question is whether defendant waived the...

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