U.S. v. Punelli, s. 89-1051

Citation892 F.2d 1364
Decision Date02 January 1990
Docket NumberNos. 89-1051,89-1356,s. 89-1051
PartiesUNITED STATES of America, Appellee, v. Charles Joseph PUNELLI, Appellant. UNITED STATES of America, Appellee, v. Charles Joseph PUNELLI, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Steven H. Shindler, Des Moines, Iowa, for appellant.

Ronald M. Kayser, Des Moines, Iowa, for appellee.

Before ARNOLD and MAGILL, Circuit Judges, and LARSON, * Senior District Judge.

MAGILL, Circuit Judge.

On September 27, 1988, a grand jury indicted Charles Joseph Punelli (Punelli), charging him with three counts of violating various federal narcotics statutes. The jury trial which commenced on November 28, 1988, ended in a mistrial on December 6, after the district court found the jury to be genuinely deadlocked. On December 15, 1988, a grand jury returned a superseding indictment which charged Punelli with five counts of violating various narcotics laws. Two of those five counts charged new violations of the federal narcotics laws, two restated counts of the original indictment with only changes in the dates of the crimes charged, and one was identical to one of the counts contained in the original indictment. After the district court denied Punelli's motion for a thirty-day continuance on December 29, 1988, the case proceeded to trial for a second time. The jury trial commenced on January 3, 1989. Punelli was convicted one week later on four counts of violating various federal narcotics laws.

Punelli appeals his conviction alleging the district court 1 erred when it denied his motion for continuance and his motion to dismiss the superseding indictment due to prosecutorial vindictiveness. He also alleges the district court erred when it dismissed Count four 2 of the superseding indictment and when it declared a mistrial due to jury deadlock. Punelli argues that: (1) his rights under 18 U.S.C. § 3161(c)(2) were violated when he was forced to go to trial less than thirty days from the date of his arraignment on the superseding indictment; (2) his retrial on January 3, 1989 violated his right under the fifth amendment to be free from double jeopardy; (3) the two new counts charged in the superseding indictment 3 were the product of prosecutorial misconduct; and (4) Count four should have been dismissed due to new evidence submitted in violation of the district court's pretrial ruling or, in the alternative, should not have been submitted to the jury. Because we find the district court's rulings to be without error, we affirm.

I.

On September 27, 1988, a grand jury returned a three count indictment against Punelli. Count one charged Punelli with "knowingly or intentionally distribut[ing] approximately 16 ounces of cocaine" in the Southern District of Iowa on February 10, 1985 in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Count two charged him with "knowingly or intentionally distribut[ing] approximately 8 ounces of cocaine" in the Southern District of Iowa on September 20, 1985. Count three charged him with willfully and knowingly combining, conspiring, confederating and agreeing with "William R. Houck and other divers persons ... to knowingly and intentionally distribute cocaine" from October 1, 1982 until on or about December 1985 in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846.

The jury trial on these charges commenced on November 28, 1988. During the trial, the government elicited testimony involving possible violations of law for which Punelli had not been originally indicted. First, William Robert Houck (Houck), a witness for the government and former associate of Punelli, testified that on February 23, 1985, approximately one hour before his home was burglarized and he was assaulted, he received one-half pound of cocaine from Punelli. Tr. at 139. 4 Second, evidence was received which indicated not only that Punelli distributed cocaine in his home but that his home was directly across the street from a school. Tr. at 122 (Houck testified that a junior high school was located across the street from Punelli's home on Grand Avenue); Tr. at 127 (district court noted "there is already evidence in [the] record of the fact there is a school across the street, and [the court has not] heard any protest of that."); Tr. at 128 (Exhibit 2-A, a map showing Punelli's house is located across street from school, received into evidence); Tr. at 158 (Houck testified he received cocaine at Punelli's Grand Avenue home across the street from the school until Punelli moved in the summer of 1985); Tr. at 462-63 (government witness, John Beghtol (Beghtol), testified he received cocaine at Punelli's home on Grand Avenue); Tr. at 464-65 (Beghtol testified he received cocaine five to six times at Punelli's Grand Avenue house). Third, Beghtol testified he began receiving cocaine from Punelli in the latter part of 1984 and did not end his association with Punelli until early 1986. 5 Tr. at 466.

The case was submitted to the jury on December 5, 1988 after five days of testimony. A juror then asked to be released from the jury panel because of irregular and improper contact by a third party. The district court excused the juror and subsequently sequestered the remaining jurors after the jury had retired for the evening. The following morning, the jury sent a message to the court indicating that it was having difficulty in reaching a decision. The court gave no further instructions other than to order the jury to continue its deliberations.

At 1:45 p.m. on December 6, 1988, after approximately eight hours of deliberations the jury sent a second message stating: "Your Honor, we have come to an impasse on all three counts, and the vote has not changed for four votes. We all believe that we are a hung jury." Tr. at 2 (December 6, 1988). After seeking input from counsel about how to respond to the jury's second message, the court sent a message to the jury stating: "Response to second jury note. Members of the jury, I have your second note. You should continue your deliberations, and in doing so, you should also review and take into consideration Instruction No. 28, 6 one of the instructions to the jury which I previously read and delivered to you." Tr. at 19 (December 6, 1988).

At 5:00 p.m. later that day, after eleven hours of actual deliberations, the jury sent a third note to the court stating: "After debate on Instruction 28, more deliberations and review of instructions to the jury, we are still at an impasse as to a decision on all three counts. The situation has not changed since the last memo. We also feel that this situation is not 7 going to change." Tr. at 20 (December 6, 1988). After consulting counsel about the appropriate response to the third communication, the court declared a mistrial.

The court identified three factors supporting its decision to declare a mistrial. First, the case was not complex. It did not involve a significant number of counts or lengthy testimony. Furthermore, the instructions were straightforward and the jury, which had appeared attentive throughout trial, did not appear to be confused by the instructions. Tr. at 22-23 (December 6, 1988). Second, the jury had appeared to be at an impasse since its first note early in the morning of December 6, 1988. Furthermore, beginning with its second note the jury asked not for directions but to be released. Tr. at 23 (December 6, 1988). The court also noted that it was concerned because the sequestration of the jury caused by evidence of improper contact with one juror placed the jurors in an "unfortunate restricted situation without advance notice." Third, there appeared to be improper contact with at least one of the jurors who had been released on December 5, 1988. The court was concerned that such contact may have tainted the trial. After declaring the mistrial, the court set a new trial date of January 3, 1989. Tr. at 23-24 (December 6, 1988).

On December 15, 1985, the grand jury returned a superseding indictment in five counts. Count one was the same as the conspiracy charge in Count three of the original indictment except that the superseding indictment expanded the conspiracy to distribute cocaine from an end date of December 1985 to June 1986. Count two was the same as the charge in Count one of the original indictment except that the superseding indictment charged that on or about February 17, 1985, instead of February 10, 1985, Punelli "knowingly and intentionally distribut[ed] approximately sixteen ounces of cocaine" in the Southern District of Iowa in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). 8 Count three, which was not present in the original indictment, charged him with "knowingly and intentionally distribut[ing] approximately eight ounces of cocaine" in the Southern District of Iowa on February 23, 1985 in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Count four, which was also not present in the original indictment, charged him with "knowingly and intentionally distribut[ing] approximately eight ounces of cocaine ... within one thousand feet of the real property comprising a public elementary or secondary school" on May 22, 1985 in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 845a(a). Count five was exactly the same as the charge in Count two of the original indictment.

On December 13, 1988, two days before the superseding indictment was returned, Punelli filed a motion for acquittal, a motion to dismiss the original indictment, a motion to continue, and a notice of appeal to this court. 9 The district court scheduled a hearing on the motions for December 21, 1988. On that date, Punelli filed a motion to dismiss the superseding indictment, claiming he had not received a copy thereof until December 19.

At the December 21, 1988 motions hearing, Special Agent Ken Franson (Franson) testified he obtained photographs of Punelli's house on November 27, 1988, the day before the trial had commenced. It was not until he had...

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