U.S. v. Aguilar-Aranceta

• Decision Date: 06 November 1991
• Docket Number: No. 91-1513,AGUILAR-ARANCET,D,91-1513
• Citation: 957 F.2d 18
• Parties: UNITED STATES of America, Appellee, v. Esperanzaefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

957 F.2d 18

UNITED STATES of America, Appellee, v. Esperanza AGUILAR-ARANCETA, Defendant, Appellant.

No. 91-1513.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1991.

Decided Feb. 19, 1992.

Rachel Brill, with whom Benicio Sanchez-Rivera, Federal Public Defender, Old San Juan, P.R., was on brief for defendant, appellant.

Esther Castro-Schmidt, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., and Jose A. Quiles, Chief, Criminal Div., Hato Rey, P.R., were on brief for appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

Esperanza Aguilar-Aranceta appeals from the district court's denial of her motion to dismiss the indictment based on collateral estoppel and double jeopardy considerations. Because we believe the defendant is estopped from presenting a double jeopardy claim, and has failed to present a viable collateral estoppel argument, we affirm the decision of the district court.

FACTS

On September 22, 1990, Esperanza Aguilar-Aranceta, defendant-appellant, went to pick up two parcels at the United States Post Office in Old San Juan, Puerto Rico. Two yellow slips had been left in her mail box prior to that date notifying her that there were two registered parcels addressed to her at the post office. ¹ When the window clerk at the post office counter brought her two packages with return addresses from Medellin, Colombia, defendant stated "no me (sic) family," to which the attendant replied that it was up to her if she wanted to take them or not. ² The window clerk left the packages on the counter and once again the defendant said "no me (sic) family," and once again the clerk replied that it was up to her if she wanted to take them or not. ³ Defendant then proceeded to take the two packages. Immediately upon exiting the building defendant was detained and placed under arrest. The two packages she was carrying had been intercepted by a mail specialist earlier and found to contain approximately 224 grams of cocaine.

Defendant initially appeared before a Magistrate on September 24, 1990. Two days later defendant was afforded a detention hearing after which she was ordered detained without bail pending trial. On October 16, 1990, a hearing was held on appeal from the magistrate's order, and defendant was ordered released to the third-party custody of her mother-in-law, guaranteed by an unsecured $5,000 bond. ⁴

On September 26, 1990, a federal grand jury in San Juan, Puerto Rico, returned a two count indictment against defendant, charging defendant with unlawful possession of approximately 224 grams of cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (count one); and with importation of the same cocaine to the United States from Medellin, Colombia in violation of 21 U.S.C. § 952(a) (count two). Aguilar-Aranceta entered pleas of not guilty as to both counts. Trial began on March 4, 1991, and concluded on March 8, 1991. The jury returned a verdict of not guilty as to importation, but was unable to reach a unanimous verdict as to possession with intent to distribute. Consequently, with the consent of both parties, a mistrial was declared as to count one.

The district court granted the government's request for a new trial. On March 18, 1991, defendant filed a motion to dismiss count one on the grounds that a second prosecution would constitute a violation of her fifth amendment right not to be twice put in jeopardy for the same conduct. This motion was denied by the district court.

Defendant filed a timely notice of appeal along with a motion to stay proceedings in the district court pending resolution in this Court. The motion to stay was granted in an Opinion and Order issued on May 23, 1991. Aguilar-Aranceta now appeals from the denial of her motion to dismiss based upon double jeopardy considerations.

STANDARD OF REVIEW

We review de novo questions of constitutional law such as the district court's denial of a motion to dismiss the indictment on the grounds of double jeopardy and collateral estoppel. Cf. United States v. DiPietro, 936 F.2d 6, 8 (1st Cir.1991).

Legal Analysis

A. The Double Jeopardy Clause

The double jeopardy clause of the fifth amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (citing United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). However, the double jeopardy clause is not an absolute bar to successive trials. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984). The protection embodied in the Double Jeopardy Clause is a personal defense that may be waived or foreclosed by a defendant's voluntary actions or choices, including a request for or effectual consent to a mistrial. DiPietro, supra, 936 F.2d at 9. ⁵ Thus, in the context presently before the court--retrial following the declaration of a mistrial--the key question for double jeopardy purposes is whether the mistrial was declared with the defendant's consent. United States v. Dinitz, 424 U.S. at 608, 96 S.Ct. at 1080. If a mistrial is declared with the defendant's consent, she is deemed to have waived any double jeopardy claim she might otherwise have. If, on the other hand, the defendant wishes to proceed to a verdict by the jury empaneled to try her, and the court declares a mistrial over her objection, the double jeopardy clause will bar the defendant's retrial unless manifest necessity required the court to so act. Id. The only circumstance in which the defendant's consent to a mistrial does not operate as a waiver of her right to claim double jeopardy is where the prosecutor or the judge intentionally provokes the defendant to request the mistrial. Oregon v. Kennedy, 456 U.S. 667, 678, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982) (citing United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)).

In this criminal trial, the defendant consented to the declaration of a mistrial. After the jury deliberated for a number of hours, it returned with notes requesting further guidance as to the definition of "possession with intent to distribute." In response, and with the agreement of counsel for the government and the defense, the judge reread the instruction as to Count One. Later, the jury returned with a note indicating they believed they were deadlocked. ⁶ Once again with the agreement of the defense and the prosecution, a copy of the instruction on their duty to deliberate was sent to the jury along with their note. Finally, on March 8, 1991, the jury indicated that they had reached a unanimous verdict as to Count Two (the importation count), but were deadlocked, 10-2, as to Count One (the count of possession with intent to distribute). ⁷ After an in-chambers discussion during which several options were offered by the judge and discussed among the parties, the judge suggested that the verdict as to Count Two could be taken, a mistrial could be declared as to Count One, and the government would be given until the following Monday (the verdict was taken on a Friday) to determine whether the indictment as to Count One would be pursued in another trial. With no objection from either party as to this course of conduct, a verdict of Not Guilty was returned by the jury as to Count Two, and a mistrial was declared as to Count One. See Tr. Vol. VI p. 31; see also DiPietro, 936 F.2d at 10 (consent to a mistrial may be inferred from silence where a defendant had the opportunity to object and failed to do so). In view of these facts, defendant effectively waived any subsequent double jeopardy claim she might have had. ⁸

B. Collateral Estoppel

Still to be resolved here is the issue of whether the acquittal on the charge of importation (count two) has a collateral estoppel effect on the retrial of possession with intent to distribute (count one). Although collateral estoppel is part of the guarantees of the Double Jeopardy Clause, Ashe v. Swenson, 397 U.S. 436, 442, 445-46, 90 S.Ct. 1189, 1193, 1195, 25 L.Ed.2d 469 (1970), this issue is separate from the application of the "same conduct" test enunciated in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), or the core concept of double jeopardy, as well as from the comparison of the statutory elements of the two crimes. Cf. United States v. DeVincent, 632 F.2d 155, 160 (1st Cir.), cert. denied, 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981) ( [T]he issue of collateral estoppel is separate from the application of the Blockburger test or the core concept of double jeopardy[.] (citing Brown v. Ohio, 432 U.S. 161, 166-67, n. 6, 97 S.Ct. 2221, 2225-26, n. 6, 53 L.Ed.2d 187 (1977)). ⁹

The collateral-estoppel doctrine prohibits the Government from relitigating an issue of ultimate fact that has been determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. at 443, 90 S.Ct. at 1194. ¹⁰ Collateral estoppel need not apply to a whole count but instead can control a single element of a count or a trial. DeVincent, 632 F.2d at 160 (citation omitted). Where a previous judgment of acquittal was based on a general verdict, courts must " 'examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter[s], and conclude whether a rational jury could have grounded its verdict on an issue other than that which the defendant seeks to foreclose from consideration.' " Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194 (citation omitted). The Courts of Appeals have unanimously placed the burden on the defendant to demonstrate that the issue whose relitigation he or she seeks to foreclose was actually...