U.S. v. Baggett, 89-7845

• Decision Date: 23 May 1990
• Docket Number: No. 89-7845,89-7845
• Citation: 901 F.2d 1546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lonnie C. BAGGETT, Jr., Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1546

901 F.2d 1546

UNITED STATES of America, Plaintiff-Appellee, v. Lonnie C. BAGGETT, Jr., Defendant-Appellant.

No. 89-7845

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 23, 1990.

W. Gregory Hughes, Mobile, Ala., for defendant-appellant.

J.B. Sessions, III, U.S. Atty. and Richard H. Loftin, Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before FAY, HATCHETT and EDMONDSON, Circuit Judges.

PER CURIAM:

Defendant Lonnie C. Baggett, Jr. (Baggett) challenges the district court's denial of his motion to dismiss the charges against him. Baggett contends that jeopardy attached when the jury was sworn in his first trial, during which a plea agreement was reached after the prosecutor made his opening statement, and to subject him to trial again for the same alleged offenses would violate the Fifth Amendment of the United States Constitution. We reject Baggett's argument, AFFIRM the trial court's ruling, and REMAND for trial.

BACKGROUND

Baggett was charged on January 10, 1989 in a fifteen count indictment with ten drug offenses and one firearms violation. Following various pleadings and motions, Baggett was brought to trial on May 16, 1989. Before the jury was sworn, and before opening statements were made, the parties argued over the availability of certain tape recorded conversations between a confidential informant and Baggett. Counsel for Baggett asserted that the tapes were critical to his being able to effectively cross examine and impeach witnesses, and the prosecution was obligated to turn the tapes over to defendant. The prosecutor argued that the tapes were misplaced by the agents in charge of the investigation and that he was not at an advantage because he did not have the benefit of listening to the tapes while preparing for trial. The court decided to proceed with the initial stages of the trial until the tapes could be located and turned over to counsel for Baggett.

The judge then swore the jury, charging it with its responsibilities. The prosecutor followed with his opening statement. Counsel for Baggett elected to reserve his opening statement until after the government presented its case. Following the prosecutor's opening statement, the court recessed. When the court reconvened, it conducted further inquiry as to what happened to the tapes. After questioning an investigator and the confidential informant, the court concluded that the tapes were unavailable and decided to proceed with the trial, informing counsel for Baggett that he could use the fact that the tapes were missing to his advantage during cross examination of the confidential informant and closing argument. A recess ensued.

During the recess, the government and Baggett reached a plea agreement. Baggett agreed to plead guilty to count VII of the indictment in exchange for the government's recommendation of a downward departure from sentencing guidelines to eighteen months with credit for time served. Under the agreement, Baggett was also to give a statement to a representative of the United States Attorney's office, cooperate with the government, and divulge his knowledge regarding drugs in Conecuh County.

The court made the requisite inquiry to determine whether Baggett's guilty plea was made "voluntarily with the understanding of the nature of the charge and the consequences of the plea." R2-86. Throughout his colloquy with Baggett, the district judge repeatedly referred to his At the sentencing hearing, the district judge heard testimony from two law enforcement officers from Alabama who stated that Baggett was cooperative and truthful in answering questions, but may not have told them everything he knew about criminal activity in Conecuh County. R3-12, 19. The agents further testified that the information with which Baggett provided them merely corroborated what they already knew. R3-11, 19. After hearing this testimony, the district court concluded that it could not "make, under the evidence presented to it, a finding that that assistance that has been proffered to this point is substantial within the meaning of the guidelines, and the Court is simply not authorized to do anything that would warrant a departure to the degree that has been set forth in the plea-bargaining." R3-23. Instead, believing that he had failed to advise Baggett at the time the plea was accepted that the court was not bound by the sentence suggested in the plea-bargain, the district judge allowed Baggett to withdraw his plea and set the matter for trial.

                authority to impose the sentence.  For example, he asked whether Baggett realized that a departure from the guidelines "might not be followable" if the departure does not fit certain circumstances, and that a trial judge may depart upwardly to the maximum the law allows, "anywhere up to 20 years in the penitentiary."    R2-75-77, 85.  The court subsequently accepted the guilty plea to count seven of the indictment and set a date for the sentencing hearing
                

DISCUSSION

The sole issue raised on appeal is whether the district court erred in denying defendant's motion to dismiss on double jeopardy grounds. We review this question de novo. United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989). Counsel for Baggett argues that jeopardy attached when the jury was sworn in the first trial; therefore to try Baggett for the same offenses constitutes a violation of the double jeopardy clause of the Fifth Amendment. The government argues that the court rightfully rejected Baggett's plea agreement and double jeopardy has no application to this case.

"The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense." United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (footnote omitted). "The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Generally, jeopardy attaches in a jury trial when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Downum v. United States, 372 U.S. 734, 734-38, 83 S.Ct. 1033, 1033-36, 10 L.Ed.2d 100 (1963). In the case of a plea bargain, with respect to the offense pleaded to, jeopardy normally attaches when the court unconditionally accepts a guilty plea. United States v. Sanchez, 609 F.2d 761, 762-63 (5th Cir.1980) (per curiam).

The question of when jeopardy attaches, however, only begins our inquiry. Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973). For example, "[w]here, for reasons deemed compelling by the trial judge ... the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment." Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961). One compelling reason for declaring a mistrial is the failure of a jury to agree on a verdict. United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824). Another has been held to exist when after trial has commenced, it is discovered that a critical procedural defect exists in the indictment such that a reversal of conviction on appeal would be mandated. Somerville, 410 U.S. at 468-69, 93 S.Ct. at 1072-73. Likewise, the Supreme Court has held that a defendant may be retried for offenses of which a jury convicts him in the event that the conviction is later overturned on grounds other than insufficiency of the evidence. North Carolina v. Pearce, 395 U.S. 711, 719-20, 89 S.Ct. 2072, 2077-78, 23 L.Ed.2d 656 (1969); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). A defendant also can be retried for the same offenses if during the trial, the defendant himself, or in conjunction with the prosecutor, requests a mistrial which is granted. Dinitz, 424 U.S. at 607-12, 96 S.Ct. at 1079-82; United States v. Bobo, 586 F.2d 355, 364 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979).

In this case, a new trial has been ordered because after being informed that the trial judge would not downwardly depart from sentencing guidelines, Baggett successfully withdrew his guilty plea at the sentencing hearing. Baggett contends that the double jeopardy clause prohibits trial on both the counts that were dismissed as a result of the plea bargain and the...