U.S. v. Bauman, 89-2176

• Decision Date: 20 October 1989
• Docket Number: No. 89-2176,89-2176
• Citation: 887 F.2d 546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hiram Lee BAUMAN, Pedro Talamas, and John Cary, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 546

887 F.2d 546

UNITED STATES of America, Plaintiff-Appellee, v. Hiram Lee BAUMAN, Pedro Talamas, and John Cary, Defendants-Appellants.

No. 89-2176.

United States Court of Appeals Fifth Circuit.

Oct. 20, 1989.

Beth McGregor (court-appointed), Bailey & McGregor, Houston, Tex., for bauman.

Frank A. Rubino, Coconut Grove, Fla., for Talamas.

Kent A. Schaffer, Houston, Tex., for Cary.

Scott Bankie, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before DAVIS and SMITH, Circuit Judges, and LITTLE, District Judge. ¹

JERRY E. SMITH, Circuit Judge:

Three defendants seek dismissal of an indictment pending against them after the trial court declared a mistrial. Since all defendants were once put in jeopardy, we must decide whether the fifth amendment to the Constitution bars reprosecution under the facts of this case.

Upon review of the entire record, we conclude that the trial court did not exceed its discretion in finding "manifest necessity" for a mistrial. Accordingly, the double jeopardy clause does not constitutionally bar reprosecution over the defendants' objection, and hence we affirm. A retrial may commence with respect to all defendants.

I.

The appellants and several confederates were indicted on April 15, 1987, for a variety of drug-related conspiracy, distribution, and importation offenses. The events surrounding the trial were well publicized, described by the Houston media as the largest drug trial in the city's history. The district judge decided to try all defendants together and set a trial date well in advance to avoid scheduling conflicts commonly associated with trying numerous co-defendants.

Defendant Hiram Lee Bauman, himself an attorney, was provided court-appointed counsel. Problems developed between Bauman and his attorney, however, leading to substitution of appointed counsel on two separate occasions. The district court permitted Bauman to retain attorney Randy Holzapple, his third appointed counsel, several weeks before trial, with the understanding that the trial date of January 9, 1989, would not be continued. Bauman accepted this condition for substitution of counsel. ²

All defendants appeared in court on the trial date. Because of a so-called "scheduling conflict," however, Holzapple failed to appear. The district court believed, based upon these events, that Bauman had retained Holzapple with full knowledge of the attorney's scheduling problem in order to stall the commencement of the trial. The district court offered Bauman the immediate services of his second court-appointed attorney, who was present in court for unrelated reasons, so that the trial could proceed. Bauman rejected the court's invitation and moved that either the case be continued or he be severed.

Sensing bad faith, the district court interpreted Bauman's actions as a calculated attempt to disrupt the trial. Accordingly, the court rejected Bauman's motion for a continuance or a severance and proceeded with the trial in the absence of Bauman's defense counsel, citing this court's decision in United States v. Mitchell. ³ Bauman vehemently objected to the proceedings, believing himself unrepresented in violation of the sixth amendment. He raised the objection at every available opportunity, even though the court noted his objection for purposes of appeal and requested Bauman's cooperation.

A jury was empaneled and sworn, and the government began to present witnesses. Bauman, however, proved to be a disruptive defendant. Against the instructions of the court, he repeatedly objected to the lack of counsel before the jury and saw fit to interrupt the examination of government witnesses by seeking the court's permission to leave the courtroom.

Two days after trial began, Bauman moved for a mistrial, continuance, or severance based upon a newly-submitted affidavit from Holzapple stating that Bauman was unaware of his scheduling conflict. That same morning, the court received information that attorney Campbell, counsel for two other co-defendants, had been arrested in an unrelated case on charges of conspiring to bribe a justice of the peace and aggravated perjury.

The judge decided to meet with the defendants' attorneys to address the separate problems associated with Bauman's lack of counsel and Campbell's arrest. The defendants offered the court no uniform curative measure for any prejudice which they may have suffered: Campbell moved for a mistrial with respect to his two clients; several other co-defendants sought a mistrial; Bauman desired either a continuance, severance, or "as a last resort," a mistrial; defendants Talamas and Cary lobbied for a severance but opposed a mistrial. The government, not surprisingly, wanted to try all defendants together and thus sought a mistrial to correct any sixth-amendment error or incurable prejudice visited upon the jury.

Before deciding upon a course of action, the district court then interviewed the jurors to assess any possible prejudicial exposure to news coverage. Prudently, the court made no direct reference to Campbell's arrest so as not to exacerbate any problem with jury bias. At this point in the proceedings, three jurors admitted to hearing media references to the trial, but they apparently had not paid attention to any details.

After interviewing the attorneys and jurors, and over the objection of Talamas and Cary, the judge declared a mistrial sua sponte as to all defendants. An order, coupled with more comprehensive written findings, was subsequently entered on January 26, 1989. The court found, inter alia, that Holzapple had known he had a scheduling conflict when he accepted representation of Bauman and had failed, in bad faith, to notify the court and to attend the trial on behalf of Bauman. The court was also concerned that past publicity, coupled with expected future media coverage of Campbell's arrest, would incurably prejudice all defendants.

After declaration of the mistrial, defendants Bauman, Talamas, and Cary unsuccessfully moved to dismiss the indictment on the theory that reprosecution is constitutionally barred. A retrial of all defendants has been stayed pending disposition of this interlocutory appeal.

II.

A.

The double jeopardy clause protects a defendant's "valued right to have his trial completed by a particular tribunal." Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978). It also bars abusive governmental conduct designed to harass a defendant through repetitive prosecution or undertaken for the purpose of increasing the likelihood of conviction. ⁴

However, the double jeopardy clause is not an absolute bar to reprosecution once the jury has been empaneled and sworn. A defendant may, for example, waive double jeopardy protection by consenting to a mistrial before a verdict is rendered. As noted in United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079-1080, 47 L.Ed.2d 267 (1976), "a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error" (citing United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)).

Without the defendant's consent to a mistrial, reprosecution becomes more difficult. Nevertheless, 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. 424 U.S. at 606-07, 96 S.Ct. at 1079. The "manifest necessity" exception, although narrow, frees the trial judge from the "Hobson's choice" of either continuing with a trial that in fairness should be terminated, or declaring a mistrial after jeopardy attaches and reprosecution is barred. See, e.g., Cherry v. Director, State Bd. of Corrections, 635 F.2d 414, 419 (5th Cir. Jan.1981) (en banc) (manifest necessity for mistrial exists where, for example, judge or juror cannot attend because of illness or death), cert. denied, 454 U.S. 840, 102 S.Ct. 150, 70 L.Ed.2d 124 (1981).

B.

For purposes of appellate review, the trial court's finding of "manifest necessity" for a sua sponte declaration of mistrial is to be upheld if the court exercised "sound discretion" in making that determination. See Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 835; Grandberry v. Bonner, 653 F.2d 1010, 1014 (5th Cir. Unit A Aug. 1981). Application of this standard requires appellate courts to give the judge's mistrial order the "highest degree of respect," as he is most familiar with the events that compromised the trial. ⁵ The availability of alternatives less draconian than a mistrial does not necessarily preclude reprosecution, as reasonable judges may differ concerning proper curative measures. Grandberry, 653 F.2d at 1014; Cherry, 635 F.2d at 418-19.

Additionally, we are free to scrutinize the entire record and are not limited to only those findings made contemporaneously with the mistrial order. See Abdi, 744 F.2d at 1503. This plenary review of the record assists us in determining, as required by our prior decisions, whether the trial judge "carefully considered the alternatives and did not act in an abrupt, erratic or precipitate manner." Grandberry, 653 F.2d at 1014.

III.

A.

The Supreme Court has said that the valued right to be tried before a particular tribunal "is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830. However, because the valued right is so important, the government must show "manifest necessity" for any mistrial declared over a defendant's objection. Id.; Baker v. Estelle, 711 F.2d 44, 47 (5th Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 724, ...