913 F.2d 1305 (8th Cir. 1990), 90-1766, United States v. Dixon

Docket Nº:90-1766, 90-1792, 90-1821, 90-1835, 90-1836 and 90-1839.
Citation:913 F.2d 1305
Party Name:UNITED STATES of America, Appellee, v. George DIXON a/k/a Willie Mack, Dick and Big Brother, Appellant. Richard Hopkins and Gerald Hopkins-Bey, Intervenors. UNITED STATES of America, Appellee, v. Nathaniel WILLIAMS a/k/a Nate, Appellant. UNITED STATES of America, Appellee, v. Donald LEWIS, Appellant. UNITED STATES of America, Appellee, v. Johnnie D
Case Date:September 12, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1305

913 F.2d 1305 (8th Cir. 1990)

UNITED STATES of America, Appellee,

v.

George DIXON a/k/a Willie Mack, Dick and Big Brother, Appellant.

Richard Hopkins and Gerald Hopkins-Bey, Intervenors.

UNITED STATES of America, Appellee,

v.

Nathaniel WILLIAMS a/k/a Nate, Appellant.

UNITED STATES of America, Appellee,

v.

Donald LEWIS, Appellant.

UNITED STATES of America, Appellee,

v.

Johnnie DENTMAN a/k/a Ace, Appellant.

UNITED STATES of America, Appellee,

v.

Delores BENNETT, Appellant.

UNITED STATES of America, Appellee,

v.

Noble BENNETT a/k/a Turtle a/k/a Little Brother, Appellant.

Nos. 90-1766, 90-1792, 90-1821, 90-1835, 90-1836 and 90-1839.

United States Court of Appeals, Eighth Circuit

September 12, 1990

Submitted June 12, 1990.

Rehearing Denied Nov. 14, 1990.

Page 1306

Burton Shostak, St. Louis, Mo., for appellants.

Mitchell Stevens, St. Louis, Mo., for appellee.

Before McMILLIAN, ARNOLD and WOLLMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Defendants Noble Bennett, Delores Bennett, Johnnie Dentman, Donald Lewis, Willie Mack Dixon, Nathaniel Williams, Richard Hopkins, and Gerald Hopkins-Bey appeal from an order entered in the District Court for the Eastern District of Missouri denying their motions to dismiss an indictment pending against them after the district court declared a mistrial. For reversal defendants argue the district court failed to exercise its sound discretion in finding that "manifest necessity" justified declaration of a mistrial. For the reasons discussed below, we agree with the defendants and hold that the double jeopardy clause bars reprosecution of the defendants. Accordingly, we reverse the order of the district court and remand the case with directions to dismiss the indictment and discharge the defendants.

On April 21, 1989, a federal grand jury indicted some 35 individuals, including defendants,

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charging them with conspiracy to distribute heroin from 1984 to 1989, substantive drug offenses and tax offenses. Noble Bennett, the alleged ringleader of the conspiracy, was charged with one count of continuing criminal enterprise (21 U.S.C. Sec. 848), one count of conspiracy to distribute heroin (21 U.S.C. Sec. 846), two counts of distribution of heroin (21 U.S.C. Sec. 841), two counts of tax fraud (26 U.S.C. Secs. 7201, 7206(1)), and one count of conspiracy to commit tax fraud (18 U.S.C. Sec. 371). Delores Bennett was charged with one count of conspiracy to distribute heroin (21 U.S.C. Sec. 846), two counts of tax fraud (26 U.S.C. Secs. 7201, 7206(1)), and one count of conspiracy to commit tax fraud (18 U.S.C. Sec. 371). Willie Mack Dixon was charged with one count of continuing criminal enterprise (21 U.S.C. Sec. 848), one count of conspiracy to distribute heroin (21 U.S.C. Sec. 846), two counts of distribution of heroin (21 U.S.C. Sec. 841), three counts of tax fraud (26 U.S.C. Sec. 7206(1)), and one count of conspiracy to commit tax fraud (18 U.S.C. Sec. 371). Johnnie Dentman, Donald Lewis, Richard Hopkins, Gerald Hopkins-Bey, and Nathaniel Williams were each charged with one count of conspiracy to distribute heroin (21 U.S.C. Sec. 846).

The trial began on Monday, May 7, 1990. Jury selection began the next day, Tuesday, May 8, 1990. Jury selection was completed and the jury was sworn near the end of the business day, at about 5:15 p.m. The jury consisted of 7 African-American women and 5 white men; there were 4 white male alternates. All defendants are African-American. The district court instructed the jury not to discuss the case among themselves or with others and dismissed them. Due to the lateness of the hour, the district court did not give the jury complete opening instructions, which would have included an instruction cautioning the jury not to read news stories or articles about the case or to listen to radio or television news reports about the case.

Later that evening a local television station broadcast a news report about the case on the 10:00 o'clock news. 1 The news report stated that a jury had been empaneled in the Noble Bennett case and identified Noble Bennett as the "brains" of a multi-million dollar network responsible for the distribution of 80% of the "black tar" heroin in St. Louis. The news report also stated that authorities believed that Noble Bennett was responsible for a drug-related homicide. The news report also indicated that one possible government informant had been granted immunity for his involvement in two homicides and displayed a copy of the immunity letter. The news report further stated that the informant would testify that Noble Bennett had ordered a "hit" on the wife of another informant in an attempt to discourage that informant's testimony. The news report was repeated on the early morning (6:00 o'clock) news the next day, May 9, 1990.

One of the government case agents had videotaped the evening news report. At about 8:00 a.m. on Wednesday, May 9, 1990, the government attorney notified the district court of the news report. The district court viewed the videotape of the news report in the U.S. Attorney's office. Defense counsel had not been notified and were not present when the district court viewed the videotape. Court reconvened at about 9:40 a.m.; the jury was not present in the courtroom. The district judge announced that a local television station had broadcast a news report about the case, that he had viewed a videotape of the news report, that he found the news report to be extremely prejudicial to all defendants and the government, and sua sponte declared a mistrial. Counsel for two defendants made an express objection to the declaration of a mistrial; counsel for another defendant suggested that the district court question the jury. The district court noted the objection to the declaration of a mistrial on behalf of all defendants but refused to conduct a voir dire of the jury. The district court then dismissed the jury and ordered all parties to return on May 14, 1990, to select a new jury and to begin the second trial.

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The district court filed its written findings of fact the next day. United States v. Bennett, No. S1-89-90CR(6) (E.D.Mo. May 10, 1990). The district court concluded that "manifest necessity" warranted the mistrial because the news report had "seriously and incurably" prejudiced Noble Bennett and the other defendants and the government. Slip op. at 3. The district court specifically noted that, due to the late hour on the first day of trial, no cautionary instruction warning the jury not to listen to or watch news reports had been given. Id. The district court also found that, based upon its own experience and observation of the voir dire, questioning the jury about the news report or giving the jury a cautionary instruction to disregard any news reports would not cure the prejudicial effect of the news report. Id. at 3-4. The district court did not elaborate on why polling the jurors or giving a cautionary instruction would not be sufficient to cure any possible prejudice. The defendants filed motions to dismiss the indictment on the ground that a second trial would be barred by the double jeopardy clause. The district court denied the motions to dismiss. The district court initially scheduled the second trial to begin on May 14, 1990, but then stayed further proceedings pending resolution of the double jeopardy issue on appeal. All defendants filed notices of appeal. We consolidated and expedited the appeals.

APPELLATE JURISDICTION

We first consider whether we have appellate jurisdiction. Title 28 U.S.C. Sec. 1291 provides for appeal only from "final decisions" of the district courts. The final decision rule is particularly important in criminal proceedings:

Finality of judgment has been required as a predicate for federal appellate jurisdiction.... Adherence to this rule of finality has been particularly stringent in criminal prosecutions because "the delays and disruptions attendant upon intermediate appeal," which the rule is designed to avoid, "are especially inimical to the effective and fair administration of the criminal law."

Abney v. United States, 431 U.S. 651, 656-57, 97 S.Ct. 2034, 2038-39, 52 L.Ed.2d 651 (1977) (Abney ), citing DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962). Despite the importance of finality, the Supreme Court has held that the denial of a defendant's motion to dismiss on double jeopardy grounds is appealable under the collateral order doctrine:

[Although the] pretrial denial of a motion to dismiss an indictment on double jeopardy grounds is obviously not "final" in the sense that it terminates the criminal proceedings in the district court ...[,] such pretrial orders fall within the so-called "collateral order" exception to the final-judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 [69 S.Ct. 1221, 93 L.Ed. 1528] (1949), and are thus "final decisions" within the meaning of Sec. 1291.

Abney v. United States, 431 U.S. at 657, 97 S.Ct. at 2039; see Richardson v. United States, 468 U.S. 317, 321-22, 104 S.Ct. 3081, 3083-84, 82 L.Ed.2d 242 (1984) (Richardson ) (denial of motion to dismiss on double jeopardy grounds appealable under Cohen collateral order doctrine even when district court must review sufficiency of evidence in first trial). The Abney Court noted that "such orders constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim." 431 U.S. at 659, 97 S.Ct. at 2040. The Court also noted that "the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e...

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