936 F.2d 6 (1st Cir. 1991), 90-1657, United States v. DiPietro

Docket Nº:90-1657.
Citation:936 F.2d 6
Party Name:UNITED STATES, Appellee, v. Robyn DiPIETRO, Defendant, Appellant.
Case Date:June 13, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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936 F.2d 6 (1st Cir. 1991)

UNITED STATES, Appellee,

v.

Robyn DiPIETRO, Defendant, Appellant.

No. 90-1657.

United States Court of Appeals, First Circuit

June 13, 1991

Heard Nov. 6, 1990.

Marie T. Buckley, Boston, Mass., for defendant, appellant.

Cerise Lim-Epstein, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, Boston, Mass., for appellee.

Before BREYER, Chief Judge, BROWN, [*] Senior Circuit Judge, and SELYA, Circuit Judge.

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JOHN R. BROWN, Senior Circuit Judge.

At issue here is whether the Double Jeopardy clause of the Constitution 1 bars retrial of a defendant where the court declared a mistrial sua sponte, without objection by the defense, because of serious prejudicial error by the government in the presence of the jury. We hold that it does not, and therefore we affirm.

Robyn DiPietro was charged in a one-count, compound indictment for credit card fraud, 18 U.S.C. Sec. 1029(a)(2) (1988), 2 and aiding and abetting (in the commission of credit card fraud), 18 U.S.C. Sec. 2(a) (1988).

The government presented evidence which showed that, between August, 1986 and December, 1987, a group of about a dozen men and women perpetrated the fraud at Jordan Marsh and Filene's. Four of the participants worked as sales clerks at the stores. Accomplices came to the stores at prearranged times when one of these clerks was working, selected merchandise and brought it to that clerk. The clerk would "ring up" a credit instead of a charge. Thus, two frauds were perpetrated in one transaction, since the ring member obtained not only a fraudulent credit to a credit card account (which would be paid to the credit card issuing bank by the store issuing the credit), but merchandise at no charge. The "customers" all used their own credit cards--American Express, MasterCard, or Visa cards issued by a number of banks engaged in interstate commerce. The amounts of the credits were deposited into the card holders' bank accounts, and participants shared the proceeds of the transactions with the inside clerks. Bank records introduced into evidence indicated that the bank-issuers and credit card holders incurred no losses, but the merchants did suffer monetary losses as a result of the transactions.

After the government rested, DiPietro moved for Judgment of Acquittal, asserting that the government had proved only common law larceny by trick and not the federal crime, because no evidence had been presented that the credit cards were "unauthorized" as defined by the statute. 3 The court denied the motion, stating that the statutory definition would be given in the jury charge. The defense offered no evidence, and again asserted in closing argument to the jury that this element of the crime--the use of unauthorized cards--had not been proved.

In rebuttal argument to the jury, the government asserted that the guilty pleas and convictions of DiPietro's named cohorts constituted evidence that all the elements of the accusations against DiPietro had been proved, thus using their convictions for purposes other than credibility. The court allowed these statements over repeated objections by the defense.

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At sidebar, the defense requested a special instruction that "the fact somebody pleaded guilty does not relieve [the government] of the burden of proof, and it is not any evidence whatsoever that all the elements of the crime were proved." The court agreed to give such an instruction.

During the luncheon recess, the court in its solitude was troubled about the possibly significant error. After the recess, the government filed a Supplemental Request for Jury Instruction to counter the defense's interpretation in closing argument of the term "unauthorized." 4 The court did not rule on the motion, but summoned counsel and the court reporter, and took notes while the reporter read back the government's rebuttal argument. Afterwards, both attorneys withdrew, with no further comment from the court or either attorney. "The court assumed that at this point both counsel knew the court was considering a mistrial," the court stated in its later memorandum opinion denying DiPietro's motion to dismiss on double jeopardy grounds. Defense counsel asserts that she assumed the court was preparing the requested curative instruction.

Determining that the government's error had created severe prejudice to the defendant which could not be erased from the minds of the jurors or cured by any instruction, the court declared a mistrial and excused the jury. The court then explained on the record the error and said "the curative instruction wouldn't have cured the way [the government] argued the case." The defendant made no objection to the mistrial, but renewed her Motion for Judgment of Acquittal and then participated with the court and the government in setting a new trial date.

The defendant notified the court and the prosecutor the next day of her intent to file a Motion to Dismiss on grounds of double jeopardy, and 11 calendar days later filed the motion, which the court denied. The defendant appeals this denial.

We review de novo questions of constitutional law such as a district court's denial of a motion to dismiss the indictment on the ground of double jeopardy.

Appellant claims that the Double Jeopardy clause bars her retrial because the court declared a mistrial sua sponte without prior notice to or consultation with appellant's counsel, without a timely indication of why the mistrial was manifestly necessary, and without affording appellant's counsel a timely opportunity to object.

Unquestionably, "[t]he right not to be put twice to the bar is of a very high

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order." 5 The Fifth Amendment prohibition against double jeopardy is "not against being twice punished, but against being twice put in jeopardy...." 6 It embraces a defendant's "valued right to have his trial completed by a particular tribunal." 7 The complete sentence, however, as formulated by Justice Black in Wade v. Hunter 8 recognizes that the right is not absolute: "What has been said is enough to show that a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." 9

Since United States v. Perez, 10 the Supreme Court has held that the permissibility of a new trial after a mistrial has been declared without the defendant's consent depends on whether there is a "manifest necessity" for the mistrial. 11

We need not reach the question of manifest necessity, however, because the mistrial was not within the Perez doctrine, because not declared without the defendant's consent. The manifest necessity test does not apply when the defendant has requested or effectually consented to the mistrial. 12

The protection of the Double Jeopardy clause is a personal defense that may be waived or foreclosed by a defendant's voluntary actions or choices, including request for or effectual consent to a mistrial. 13

Further, consent to a mistrial may be inferred from silence where a defendant

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had the opportunity to object and failed to do so. 14

For instance, in United States v. Crosley, 15 the failure to timely object to a mistrial barred a double jeopardy defense even though defense counsel stated after the Court excused the jury, "I don't mean any disrespect, I assume the record will reflect I do not agree that the jury should be discharged." The attorney's comment was made only after the court declared a mistrial, waited for the deputy clerk to determine whether the jurors were to report the following day, and delivered a short speech to the jurors about civic responsibility and the American legal system. Thus the court held that even if the comment was an objection, it was not timely. 16

In United States v. Beckerman, 17 the court held that the failure to request a sidebar conference or press an objection to a mistrial justified an inference of accord even though trial court did not solicit opinion of defense counsel, and cut off counsel's attempt to offer "a suggestion." 18

A case very similar to the one at hand is Camden v. Circuit Court. 19 There, the defendant's consent was...

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