88 F.3d 608 (8th Cir. 1996), 95-3760, United States v. Givens

Docket Nº:95-3760 through 95-3762.
Citation:88 F.3d 608
Party Name:UNITED STATES of America, Appellee, v. Kenneth GIVENS, Robert Turner, and Guinn Kelly, Appellants.
Case Date:July 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 608

88 F.3d 608 (8th Cir. 1996)

UNITED STATES of America, Appellee,

v.

Kenneth GIVENS, Robert Turner, and Guinn Kelly, Appellants.

Nos. 95-3760 through 95-3762.

United States Court of Appeals, Eighth Circuit

July 5, 1996

Submitted March 14, 1996.

Page 609

[Copyrighted Material Omitted]

Page 610

Ronald A. Norwood, St. Louis, MO, argued, for appellants. Rodolfo Rivera, St. Louis, MO, on the brief, for appellant Kenneth Givens. Ronald A. Norwood, St. Louis, MO, on the brief, for appellant Robert Turner. Kurt D. Schultz, St. Louis, MO, on the brief, for appellant Guinn Kelly.

James Garvin Martin, St. Louis, MO, argued (Edward L. Dowd, Jr., as U.S. Atty., on the brief), for appellee.

Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Appellants contend that the district court improperly declared a mistrial and subjected them to double jeopardy by retrying them. The district court believed that manifest necessity required a mistrial in the defendants' first trial and therefore rejected appellants' claims of double jeopardy. We reverse the judgment of the district court as to two defendants, affirm as to the other, and remand.

I.

Kenneth Givens, Robert Turner, and Guinn Kelly were members of the Saint Louis Police Department who also worked as security guards at a federal housing project. They were accused of falsifying their time cards to inflate the number of hours that it appeared that they worked at that project. At trial, Captain Harry Hagger, the defendants' supervisor at the police department, was called as a government witness. Capt. Hagger testified about the policies of the police department regarding their officers' employment in part-time jobs, such as working as security guards. He was one of the prosecution's first witnesses and it appears that the defendants were interested in discrediting his testimony.

During Capt. Hagger's cross-examination by Mr. Givens's attorney, C. John Pleban, Mr. Pleban approached the bench and described for the court a conversation that he had had with Capt. Hagger during which no one else was present. Mr. Pleban said that Capt. Hagger had told him previously that Capt. Hagger suggested to Mr. Givens that Mr. Givens resolve the problem of overstated hours on his time cards by putting in extra hours. Under Mr. Pleban's cross-examination, however, Capt. Hagger denied making any such suggestion to Mr. Givens. Mr. Pleban then informed the court that if, on further cross-examination, Capt. Hagger denied the substance of their conversation, Mr. Pleban might have to testify to impeach Capt. Hagger. Counsel for Messrs. Turner and Kelly appeared to agree that they too wanted to elicit this testimony for purposes of impeachment.

The court outlined alternative courses of action and heard and considered the arguments of counsel before deciding to declare a mistrial. The court disqualified Mr. Pleban as Mr. Givens's attorney, and found as a fact that Mr. Pleban's other attorney was unprepared to continue with the trial. While Mr. Givens did not object to the disqualification or the declaration of mistrial, Messrs. Turner and Kelly repeatedly objected to a mistrial and expressed their wish to proceed.

The defendants later moved to dismiss their indictment under the Double Jeopardy Clause of the Fifth Amendment. In rejecting the motion, the court relied on the principles outlined in United States v. Allen, 984 F.2d 940 (8th Cir.1993). After reviewing the alternatives, the court held that mistrial was the one least harmful. The district court believed that "by declaring the mistrial and giving the defendants an opportunity to call Mr. Pleban to provide possible impeachment testimony in the next trial, the Court has acted for the benefit of the defendants." The court declined to proceed with a trial against

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Messrs. Turner and Kelly without Mr. Givens because there was a conspiracy count against all three defendants and because there would have been "overwhelming" prejudice (presumably to the government) if a defendant disappeared and his lead defense counsel took the stand to contradict a government witness. The court therefore concluded that there was manifest necessity for a mistrial and denied the motion to dismiss the indictment.

II.

We should note that the government describes this case as one raising a conflict-of-interest issue, but this...

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