U.S. v. Nichols, 92-8065

• Decision Date: 24 November 1992
• Docket Number: No. 92-8065,92-8065
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Edward NICHOLS, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 972

977 F.2d 972

UNITED STATES of America, Plaintiff-Appellee, v. Michael Edward NICHOLS, Defendant-Appellant.

No. 92-8065

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 24, 1992.

Derek A. Howard (court-appointed), Howard & Kobelan, Austin, Tex., for defendant-appellant.

Richard L. Durbin, Jr., James A. Hensarling, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Appellant Nichols contends that his retrial following a mistrial declared by the district court sua sponte will violate his constitutional protection against double jeopardy. We disagree and affirm the trial court's denial of the motion to dismiss the superseding indictment.

Appellant and his wife were on trial in early January, 1992 on charges of conspiracy and attempt to manufacture methamphetamine when the prosecutor elicited evidence that explosives were found at the place of manufacture. Counsel for appellant objected to this testimony as violating his motion in limine, and the court, after colloquy with the government, apparently accepted defense counsel's charge that this evidence was highly prejudicial and irrelevant and declared a mistrial. The government contested this decision, analogizing the admissibility of explosives to firearms, which had been declared "tools of the drug trade" in many cases. The government also suggested that explosives are often used as booby-traps to protect drug manufacturing operations, although it had no evidence that they were so used in this case. The court was unmoved by the government's arguments and by its attorneys' further requests to look up and produce authorities for the court following the lunch recess. During this discussion, counsel for defendant remained silent. Court-appointed counsel for appellant questioned only how he would be able to subpoena witnesses for a second trial, and the court obliged him by keeping the subpoenas open for a closely following second trial date.

Just before the second trial was to begin, appellant moved to dismiss the government's superseding indictment, asserting that the prosecutor had provoked the mistrial and therefore forfeited the government's right to challenge a double jeopardy defense. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). After hearing argument on this issue, the court concluded that the prosecution had not deliberately elicited evidence of explosives in order to spawn a mistrial, and appellant's motion was denied. He has properly sought an interlocutory appeal.

Nichols contends that the district court erred in denying his motion to dismiss. This court affirms

the factual findings of the district court unless they are clearly erroneous.... [O]rdinarily the denial of a defendant's motion to dismiss with prejudice is not an appealable final decision. Courts of appeal do have jurisdiction, however, to review the denial of a motion to dismiss based on the double jeopardy clause.

U.S. v. Weeks, 870 F.2d 267, 269 (5th Cir.), cert. denied, 493 U.S. 827, 110 S.Ct. 92, 107 L.Ed.2d 57 (1989) (citations omitted); see also United States v. Miller, 952 F.2d 866, 872 n. 5 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992).

"[T]he double jeopardy clause is not an absolute bar to reprosecution once the jury has been empaneled and sworn." U.S. v. Bauman, 887 F.2d 546, 549 (5th Cir.1989), cert. denied, 493 U.S. 1077, 110 S.Ct. 1128, 107 L.Ed.2d 1034 (1990). Double jeopardy may be waived by consent; also, "a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution." Id. (citations omitted). Moreover, "a retrial following a sua sponte declaration of mistrial over a defendant's objection is not prohibited under the fifth amendment where there exists 'manifest necessity' for a mistrial." Id. (citation omitted).

Nichols contends that he neither moved for a mistrial nor consented to it. He argues that there must be no retrial because "no manifest necessity existed when the district court declared the mistrial."

Even though the district court ostensibly "granted" the motion for the mistrial, our examination of the record supports Nichols' contention that he did not move for a mistrial on this point. The question then becomes whether Nichols consented to the sua sponte declaration. We conclude he impliedly consented.

Some courts have held that "[c]onsent need not be express, but may be implied from the totality of circumstances attendant on a declaration of mistrial." U.S. v. Goldstein, 479 F.2d 1061, 1067 (2nd Cir.), cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973) (citations omitted); see also United States v. Phillips, 431 F.2d 949, 950 (3d Cir.1970) (consent inferred from defendant is failure to object to mistrial). This court has not previously explicitly adopted the implied-consent analysis. However, citing Goldstein, this court has stated in dictum that "[w]hen the defendant moves for a mistrial or does not object timely to the declaration of a mistrial, his double jeopardy claim may be vitiated by his consent." U.S. v. Gordy, 526 F.2d 631, 635 n. 1 (5th Cir.1976) (emphasis added). We now adopt Goldstein and the dictum in Gordy as a rule for this circuit.

Trying to explain his failure to object, Nichols asserts that the mistrial came as a total surprise. He argues that the district court "jumped the gun" in declaring the mistrial, and counsel did not have an opportunity to respond without interrupting a federal judge. The record belies this assertion. The Government entered into two discussions with the district judge regarding the propriety of permitting the testimonial evidence of explosives. Defense counsel made no attempt to object to the mistrial or to participate in the discourse. The only inquiries by defense counsel concerned available funds for re-subpoenaing witnesses and scheduling conflicts in a second trial.

As further justification for his failure to object, Nichols makes several references to counsel's inexperience as a criminal lawyer. However inexperienced, counsel was not unfamiliar with the concept of a...