919 F.2d 61 (7th Cir. 1990), 89-2935, United States v. Marren

Docket Nº:89-2935.
Citation:919 F.2d 61
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James J. MARREN, Defendant-Appellant.
Case Date:September 27, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 61

919 F.2d 61 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

James J. MARREN, Defendant-Appellant.

No. 89-2935.

United States Court of Appeals, Seventh Circuit

September 27, 1990

Opinion Issued Nov. 28, 1990.

Rehearing Denied Nov. 30, 1990.

Page 62

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...

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