U.S. v. Givens

• Decision Date: 05 July 1996
• Docket Number: Nos. 95-3760,s. 95-3760
• Citation: 88 F.3d 608
• Parties: UNITED STATES of America, Appellee, v. Kenneth GIVENS, Robert Turner, and Guinn Kelly, Appellants. through 95-3762.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 608

88 F.3d 608

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.

Submitted March 14, 1996.

Decided July 5, 1996.

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 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 characterization is not quite apposite. This is not, for example, a case in which an attorney represented one defendant and might have to cross-examine a former client who had turned state's evidence. See Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Nor is it a case in which there was evidence that the attorney himself was implicated in his own client's wrongdoing. See United States v. Marren, 919 F.2d 61 (7th Cir.1990). Instead of a conflict between different clients' interests or between a client's interests and his attorney's self-interest, the problem here is a conflict of courtroom roles, of blurred distinctions between the roles of advocate and witness.

Mr. Pleban created such a problem when he interviewed a witness without another person present. Local rules of the United States District Court for the Eastern District of Missouri (E.D.Mo.L.R.2(G)(2), superseded by L.R. 12.02), have adopted the Missouri Rules of Professional Conduct, which provide that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where the testimony relates to an uncontested issue, the testimony relates to the nature and value of legal services rendered in the case, or disqualification of the lawyer would work substantial hardship on the client. Missouri Supreme Court Rule 4, Rule 3.7. While the district court conceivably could have made a finding of hardship that would have enabled Mr. Pleban to testify and represent Mr. Givens, we believe that the court chose the better path in disqualifying Mr. Pleban. (We note, too, that no one objected to Mr. Pleban's disqualification.) The question then is whether Mr. Pleban's contemplated change from attorney to witness made the district court's declaration of mistrial a manifest necessity.

III.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Retrying a defendant after a mistrial implicates double jeopardy because jeopardy attaches when the first jury is sworn. The double jeopardy doctrine, however, does not prevent all retrials after jeopardy attaches. "The double-jeopardy provision of the Fifth Amendment ... does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed." Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Double jeopardy will thus not bar retrial when the defendant's interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice, as, for instance, when an error occurred during the proceedings that would require reversal on appeal, when a jury cannot reach a verdict, or when it becomes apparent at trial that a member of the jury is biased against either the defendant or the government. See Illinois v. Somerville, 410 U.S. 458, 463, 468-71, 93 S.Ct. 1066, 1070, 1072-74, 35 L.Ed.2d 425 (1973); Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. at 837.

The Supreme Court has declined to lay down a rigid formula for evaluating these matters, but has instead adopted one whose value lies in its "capacity for informed application under widely differing circumstances without injury to defendants or the public interest." Id. at 691, 69 S.Ct. at 838. Retrial has therefore long been permitted whenever "taking all the circumstances into consideration, there is a manifest necessity for the act [of mistrial], or the ends of public justice would otherwise be defeated," United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824) (emphasis added), but the level of necessity must be of a "high degree" before a mistrial may be declared. Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 831, 54 L.Ed.2d 717 (1978). "Under [this] rule a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice." Wade v. Hunter, 336 U.S. at 690, 69 S.Ct. at 838.

Mr. Givens did not specifically object to the declaration of mistrial, and the trial court's finding that his other attorney was unprepared to continue in Mr. Pleban's absence was not clearly erroneous. Objections at trial, however, were handled under an "opt-out" rule under which the objections of one defendant were considered to be the objections of all defendants unless a defendant opted out of that objection. Messrs. Turner and Kelly both strongly objected to the declaration of mistrial, thereby preserving their appeal on the double jeopardy issue, and their objections therefore must be attributed to Mr. Givens. But the court had no option but to declare a mistrial as to Mr. Givens because his other attorney was unprepared to continue, and the court had decided, with good reason, that Mr. Pleban could not serve simultaneously as both attorney and witness. The mistrial declaration as to Mr. Givens was therefore manifestly necessary.

Messrs. Turner and Kelly, however, maintain that the court impermissibly declared a mistrial as to them for purposes of judicial economy. Indeed, the record indicates that the court and the government wanted to try these defendants together on all counts for efficiency reasons, and the trial court in fact referred to the existence of the...