U.S. v. Marren, 89-2935

Decision Date30 November 1990
Docket NumberNo. 89-2935,89-2935
Citation919 F.2d 61
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James J. MARREN, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Michael C. Carr, Asst. U.S. Atty., Office of the U.S. Atty., Benton, Ill., for plaintiff-appellee.

Christopher Heid, Norris City, Ill., William M. Norris, Miami, Fla., for defendant-appellant.

Before CUMMINGS, COFFEY and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

In September 1987, defendant and nineteen others were indicted on marijuana distribution charges. He was arraigned the following February, and on March 30, 1988, Stephen J. Finta of the Florida bar entered his appearance on behalf of defendant. Trial against Marren and five remaining defendants commenced on November 15, 1988. Three days later the court declared a recess until November 29.

On November 29, 1988, the government filed a motion for disqualification of Finta and for severance of defendant from the others on trial with him. The motion alleged that Mr. Finta had engaged in unethical or criminal activity. The motion was heard on the same day, with two government witnesses testifying that Mr. Finta was involved in the drug conspiracy at issue. Therefore the court disqualified Mr. Finta and declared a mistrial as to defendant Marren, who requested appointment of a new attorney, and on December 28 Christopher Heid was appointed as successor counsel to Marren. The jury trial continued against the other five defendants who were found guilty on January 30, 1989.

Marren was arraigned on a superseding indictment on March 2, 1989, and his counsel filed a motion to dismiss based upon double jeopardy. The motion was denied on August 28, resulting in this appeal.

Timeliness of government's motion for disqualification

When the court ended its trial recess on November 29, Assistant U.S. Attorney Carr explained to the court that he first learned of Finta's role in the alleged conspiracy during a pretrial interview of a government witness on November 23, 1988, the day before Thanksgiving. On that date, Carr learned from government witness Ball that Stephen Finta had been involved in the conspiracy. Carr then contacted government witness Wood at the suggestion of Ball, and Wood said he too had knowledge of Finta's participation in the conspiracy, causing the government to file its motion to dismiss on November 29 when the court recess had ended. Defendant asserts that the government should have brought this information to light sooner because it had a document in its possession for ten months showing that Wood had sold a plane to Finta, who "worked as a front man for James Marren." (App. 30). However, as the district court noted in its memorandum and order denying Marren's subsequent double jeopardy motion to dismiss, thousands of documents had been introduced into evidence, so that a federal prosecutor could not be expected to be aware of this one bit of information with its brief reference to Finta. The court added that there had been no showing of any bad motive in filing the motion for disqualification after jeopardy had attached (App. 6-7). Like the district judge, we accept the government's explanation as to why it was unable to file the motion for disqualification until it did. Adequacy of notice and opportunity to be heard on government's motion for disqualification

Marren complains that the disqualification motion was heard and decided on the same day it was filed. However, Finta admitted at the hearing that he had discussed this matter "in advance at length" with Marren, that it was "no surprise," and that he and Marren "were ready to deal" with the matter when it came up. It is apparent from the record that the government acted as expeditiously as possible and that Finta should have disclosed his involvement at the beginning of the case. Indeed Finta did not ask for a continuance, and instead told Judge Foreman that unless the court wished to hear further testimony defendant would rest. Since Marren was severed from the case when Finta was disqualified, there was no need for the immediate appointment of successor counsel for him. Finta's replacement a month after the mistrial was timely.

Justification for Finta's disqualification

Finta was properly disqualified because identifiable improprieties involving him were shown and because public suspicion would outweigh any interest in his continuing representation. United States v. Hobson, 672 F.2d 825, 828 (11th Cir.1982), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166.

Mistrial based on manifest necessity

The double jeopardy clause of the Fifth Amendment provides that no person shall be twice put in jeopardy for the same offense, but it is well...

To continue reading

Request your trial
5 cases
  • U.S. v. Canino
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 14 January 1992
    ...adjudication. Marren and Finta appealed. This court reviewed that decision of the district court and affirmed. United States v. Marren, 919 F.2d 61 (7th Cir.1990). In so holding, this court found that Finta "was properly disqualified because identifiable improprieties involving him were sho......
  • US v. Urbana, 89-360-CR.
    • United States
    • U.S. District Court — Southern District of Florida
    • 10 May 1991
    ...conspiracy for which the client is on trial is self-evident." United States v. Marren, 720 F.Supp. 735, 743 (S.D.Ill.1989), aff'd, 919 F.2d 61 (7th Cir. 1990). Because the allegations at issue in this case implicate counsel in the very conspiracy charged in the indictment, this court conclu......
  • U.S. v. Simonetti
    • United States
    • U.S. Court of Appeals — First Circuit
    • 9 June 1993
    ...client. 4 Consequently, Lilley could not have vigorously defended Simonetti without a waiver from Skinsacos. Cf. United States v. Marren, 919 F.2d 61, 63 (7th Cir.1990). The district court granted a continuance for several days in an effort to resolve the conflict of interest. Over Simonett......
  • U.S. v. Smith
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 12 July 1993
    ...trial. We have previously held that Mr. Finta was properly disqualified in Marren's first trial and will not revisit that issue. See Marren, 919 F.2d at 61. 11 Additionally, we conclude that Mr. Norris was properly disqualified from Marren's second Five days into trial, Mr. Norris entered a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT