897 F.2d 405 (9th Cir. 1990), 89-50447, United States v. Goland

Docket Nº:89-50447.
Citation:897 F.2d 405
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael R. GOLAND, Defendant-Appellant.
Case Date:February 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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897 F.2d 405 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael R. GOLAND, Defendant-Appellant.

No. 89-50447.

United States Court of Appeals, Ninth Circuit

February 26, 1990

Argued and Submitted Dec. 12, 1989.

Page 406

George B. Newhouse, Jr., Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Nathan Lewin, Miller, Cassidy, Larroca & Lewin, Washington, D.C., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before CHOY, TANG, and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Michael Goland takes an interlocutory appeal in a criminal case charging him with violation of federal election laws. His first trial was bifurcated 1 from his codefendants' trial and ended in a mistrial when the jury could not agree on a verdict. Goland appeals the district court's denial of his motion to dismiss on the ground of double jeopardy. We affirm.

FACTS

The criminal charges against Goland arise from the 1986 campaign in California for a United States senate seat. The first superseding indictment charged Goland with five counts, all related to violations of the federal election law. 2 The indictment charged Goland's two codefendants, Lyle Weisman and Sandor Habalow, with four of the five counts. Weisman and Habalow each moved to sever their trials based on their belief that Goland would testify favorably to them if their cases were severed. They also asserted that most of the evidence at a joint trial would concern Goland, not them, and would prejudice them since they were charged with only minor participation in the conspiracy. The district court denied their motions without prejudice, specifically stating that it would reconsider if renewed motions were made later in the trial. The trial began on May 16, 1989. 3 After the government rested, on

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June 13, all three defendants moved for acquittal. The court denied Goland's motion but reserved ruling on the other defendants' motions until no later than the completion of Goland's case. 4 The court stated that it would rule at the same time on Weisman's and Habalow's pending severance motions if necessary.

At the end of the same day, after Goland had begun his defense, the court sua sponte indicated that it likely would sever the codefendants' cases and send Goland's case to the jury before Habalow and Weisman presented their defenses to the same jury. The judge stated, however, that he would only sever the codefendants' trials if Goland assured the court that he would testify for Weisman and Habalow in the event their cases were severed. The trial court apparently believed Goland would do so because Weisman's and Habalow's affidavits supporting their severance motions stated that Goland had agreed to testify favorably to them. 5 Although Goland's and his codefendants' counsel did seek clarification of the court's condition for bifurcation, the record does not indicate that the parties were surprised at the judge's suggestion, and no one objected at that point in the trial.

Goland rested the next morning. He then advised the court that he could make no commitment to testify in his codefendants' cases if they were severed. The judge at that point stated that Weisman and Habalow had not met their burden of showing that Goland would testify for them and that if Goland were not going to do so, there was no need to sever. When asked by the judge for the government's position, the prosecutor agreed that the codefendants had not met their burden and stated that a severance "would be entirely without purpose." The judge then retreated from his prior position saying that severance "would not be totally without purpose," because if Goland were acquitted, he probably would testify for the codefendants in front of the same jury. The prosecutor stated outright whet the judge had only implied--that the jury would almost certainly acquit Weisman and Habalow if it acquitted Goland.

The court next asked the prosecutor what the government's position was on bifurcation rather than severance. The prosecutor responded,

Your Honor, I've discussed the court's suggested procedure with several of the supervisors in my office and it is our office's unanimous view that the procedure suggested by the court is consistent with the rules. It would be contrary to no authority of which we are aware. It would be an innovative way to bifurcate the trial but that [sic] it would be consistent with the due process rights of all the defendants, and we heartily endorse that suggestion.

The court refused to let Goland's counsel reply to the government's position. It bifurcated the trial, based on Weisman's and Habalow's assurances in the original severance motions that Goland had agreed to testify as the best indication it had of Goland's inclination, and on Goland's decision not to testify in his own case.

Goland's counsel stated that he thought the court's rationale should apply to him, too--that Weisman and Habalow could testify on his behalf. The court responded by telling Goland that he had no motion pending. 6 Goland then objected: "[T]he procedure that Your Honor is following prejudices Mr. Goland and I will ... state that on the record." Goland's counsel did not ask to reopen his case to call additional witnesses.

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The government presented a brief rebuttal, which consisted of counsel entering into a stipulation; the court then moved on to jury instructions, and counsel made closing arguments. The court instructed the jury, and the jury began deliberating on June 16. As early as the second day of deliberations, the jury told the judge that it could not agree on any of the counts. On July 7, the court gave an Allen instruction. On July 10, the jury again said that it could not agree on a verdict. 7 With the defendant's apparent consent, the court granted a mistrial. 8 The judge later questioned the jurors, recording that they had voted eleven to one for conviction on counts one, two, three, and five.

The jury reconvened to hear the codefendants' cases. It acquitted Weisman on all three felony counts, acquitted Habalow on two of three felony counts, and could not agree on Habalow's remaining felony count or either codefendant's misdemeanor count.

On August 2, Goland filed a motion to dismiss on the ground of double jeopardy. The court denied the motion after a hearing on August 28; Goland filed his notice of interlocutory appeal the same day. 9 On September 19, the government filed a second superseding indictment.

JURISDICTION

We have jurisdiction to hear an interlocutory appeal of a denial of a motion to dismiss on the ground of double jeopardy under 28 U.S.C. Sec. 1291. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

STANDARD OF REVIEW

We review de novo a district court's denial of a motion to dismiss the indictment on the ground of double jeopardy. United States v. Anzalone, 886 F.2d 229, 230 (9th Cir.1989); United States v. Schwartz, 785 F.2d 673, 676 (9th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986).

DISCUSSION

Goland claims that he should not be retried because to do so would place him in jeopardy a second time. He first argues that the bifurcation was illegal--the prosecuting attorney was clearly wrong in stating that the bifurcation would be contrary to no legal authority. Second, he contends the bifurcation deprived him of his right to have his entire case presented to the jury. In particular, the jury did not get to hear, before it retired to consider the charges against Goland, what Goland alleges would have been favorable testimony from Weisman

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and two other witnesses that his codefendants had planned to call. Third, Goland contends that this denial of his "right to present a codefendant's evidence" was a constitutional violation.

Goland contends that the alleged errors are so great that he should not be retried. A second trial would deprive him of his constitutional entitlement to a fair verdict from the jury empaneled to try him. The mistrial should not deprive him of this right, whether or not his request for the mistrial is deemed a consent to it. In addition, "judicial and prosecutorial overreaching" and "judicial or prosecutorial impropriety" caused the denial of his right to present a defense. According to Goland, the prosecutor either knew or should have known that he was wrong in claiming there was no authority against the bifurcation. In spite of this, the prosecutor urged the judge to bifurcate--under Goland's theory, so that the prosecution could tailor the indictment more closely to the facts discovered at trial, the government having gotten only a hung jury out of a "lopsided" first trial. In addition, the court would not even...

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