U.S. v. Bates
| Citation | 917 F.2d 388 |
| Decision Date | 02 January 1991 |
| Docket Number | No. 90-10127,90-10127 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Allen BATES; Ricky Lee Archer, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Mark W. Coleman, Asst. Federal Public Defender, Fresno, Cal., for defendant-appellant David Allen Bates.
E. Marshall Hodgkins, Fresno, Cal., for defendant-appellant Rick Lee Archer.
Tommy Hawk, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before CHOY and FLETCHER, Circuit Judges, and FITZGERALD, * District Judge.
Ricky Lee Archer and David Allen Bates appeal the district court's denial of a motion to dismiss indictments charging them with armed robbery. Their initial trial ended when the district court sua sponte declared a mistrial. They allege that retrial would violate the fifth amendment double jeopardy clause. We agree with defendants and reverse.
Archer's and Bates's charges arise from two Modesto bank robberies. The first occurred at Guarantee Savings & Loan on November 18, 1988; the second, at First Interstate Bank, on November 28, 1988. Archer and Bates each were charged with two counts of armed robbery, two counts of using a gun while committing robbery, and one count of being a felon in possession of a firearm.
The government presented much evidence pointing to the defendants as the robbers. Several witnesses identified them from surveillance photos and in person. Other witnesses linked them to the gun and car used in the robberies. The car's owner, who knew Archer, testified that her car had been stolen. The car was not registered to her, however, and the court struck the testimony of three witnesses who connected her to the car's license number.
On December 8, 1988, before the defendants were arrested, San Joaquin County Deputy Sheriff Francine Silva attempted to stop an automobile, later suspected to contain the defendants, for speeding. The car led her on a high-speed chase, and a passenger shot at her with a chrome 9mm handgun later discovered to match the gun used in the bank robberies. The government sought to introduce, under Fed.R.Evid. 404(b), evidence of the shooting to show consciousness of guilt, knowledge, and identity and of the gun, slugs, and casings to show modus operandi, identity, opportunity, plan, and preparation.
After a hearing in limine, the judge ruled that the evidence would be admissible if the government laid a proper foundation. The court stated in its memorandum decision,
[T]here must be positive evidence tying the 9mm gun in question to the defendants during the November 1988 robberies in Stanislaus County. Further, there must be evidence that the defendants were the persons in the car being chased. In other words, the gun, the slugs and the casings cannot be used to establish the identity of the persons in the car being chased.
Memorandum Decision, United States v. Bates, CR No. 89-068 EDP, at 3 (E.D.Cal. Dec. 8, 1989). 1 During the trial, before Silva testified on December 15, the parties discussed the testimony again. The defense attorneys again objected to admitting the evidence. The prosecuting attorney requested that the court first hear the testimony outside the jury's presence "for the purposes of assuaging the concerns of the defense counsel." The court responded, Reporter's Partial Transcript, Conference, at 6 (Dec. 15, 1989).
After this hearing but before Silva testified, the prosecutor discussed the matter with Archer's lawyer. The prosecutor assured him "that he had no intention of eliciting testimony regarding the shooting, let alone the gun, slug or casings that linked Archer to the robberies, unless and until Deputy Silva identified defendants from the stand." Declaration of [the prosecutor] re: Mistrial (Dec. 18, 1989).
Silva testified that while patrolling on December 8, 1988, she attempted to pull over a speeding car, which failed to stop. She caught up with the car and saw that two people were in it. When the car made a U-turn, she was within ten feet of them and got a good look at their faces. In a declaration to the court, the prosecutor says that Silva could have testified to the fact that some shooting took place at this point but that he asked no questions about it and Silva said nothing about it. Silva testified that she continued pursuing the car for about five miles. The following interchange then took place.
You are now excused. I apologize for imposing upon your pre-Christmas activities and I order this matter back on calendar to be reset next Monday at 2:00 o'clock.
Reporter's Partial Transcript, Testimony of Fran Silva, at 8-9 (Dec. 15, 1989). The proceedings were immediately adjourned.
About two minutes later, the government requested an in camera hearing on the mistrial ruling. The court sent a message to the government to put it in writing. About 15 minutes later, the government submitted a letter informing the court that Silva could identify the defendants as the speeding car occupants and that her testimony therefore would not prejudice the defendants. The government asked that the court reconvene to hear this testimony and that the judge reconsider the mistrial ruling. The court did not respond.
Immediately prior to the next hearing on December 18, scheduled by the court to reset the case for trial, the defendants moved in writing for dismissal on double jeopardy grounds. 2 At the hearing itself, counsel informed the court of the motion because they did not want a failure to do so to be construed as a waiver of defendants' rights against double jeopardy.
The same day, the government filed the prosecutor's declaration on the facts surrounding the mistrial. The prosecutor noted his pretestimony belief that Silva could identify the defendants, his offer to examine Silva out of the jury's presence, his discussion with defense counsel, Silva's restraint from mentioning the first gunfire exchange, Silva's assurances after the testimony that she could identify the defendants as the speeding car occupants, and his efforts to correct the error. The prosecutor also explained that he had specifically instructed Silva not to mention the shooting until after she had identified Bates and Archer, that "she should discuss the incident as if it were a simple car chase." The prosecutor reported that Silva indicated that she understood. The prosecutor also stated that he did not understand the court's order to require him necessarily to have Silva identify the defendants before testifying about the shooting but that he took the extra precaution of instructing her to do so. The prosecutor concluded that Silva mentioned the shooting because she apparently misunderstood one of his questions. 3 The prosecutor assured the court that he "did not purposely or contemptuously disobey" the court's order, that he "earnestly attempted to comply" with it, that he "did not intentionally provoke, seek or want a mistrial."
At the hearing on the motion, defense counsel stated that they had asked to speak to the judge immediately after the mistrial was declared in order to object to the mistrial. Defense counsel reiterated that they had filed their motion to dismiss and stated their objection on the record at the December 18 hearing to ensure that the court knew they objected. After defense counsel argued that implied consent could not be found and the prosecutor had partially responded to that contention, the court stated,
Just a moment ... I would say this for the record right now and you are stuck with it. I never gave them any opportunity because you were so manifestly deliberately disobeying the Court's order that I felt you needed to be punished, so you can forget about implied consent.
Reporter's Transcript of Hearing on Motion to Dismiss at 11 (Jan. 8, 1990); see also id. at 14 (). The prosecutor moved on to the prosecutorial error issue and again insisted that he had not intentionally caused the mistrial. The court responded, "Then you are one of the most incompetent attorneys that's ever been in this courtroom." Id. at 11-12.
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