U.S. v. Bradley
| Decision Date | 13 July 1990 |
| Docket Number | No. 89-5248,89-5248 |
| Citation | 905 F.2d 1482 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert BRADLEY, Norman Speck, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Alvin E. Entin, Entin, Schwartz, Margules & Lazarus, Miami, Fla., for Robert Bradley and Norman Speck.
Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Eileen M. O'Connor, Anne R. Schultz, and Linda Collins Hertz, Asst. U.S. Attys., Ft. Lauderdale, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before KRAVITCH and JOHNSON, Circuit Judges, and KAUFMAN *, Senior District Judge.
Appellants Robert Bradley and Norman Speck were among twenty-one defendants indicted in the United States District Court for the Southern District of Florida pursuant to a twenty-nine count indictment filed on September 23, 1987 in which various marijuana and cocaine offenses were charged. The indictment contained twenty-one counts charging substantive cocaine-related offenses (Counts 1-3; 12-29). All twenty-one defendants were charged with one or more cocaine-related offenses. In addition, the indictment contained eight counts charging substantive marijuana-related offenses (Counts 4-11). Along with nine other of those defendants, Bradley and Speck were charged with relation to both marijuana and cocaine. 1
Owing to pleas of guilty and the fugitive status of two of the defendants, the case proceeded to trial against nine defendants, only two of whom, Speck and Bradley, were charged in any of the marijuana counts.
Prior to trial and during the first four and one-half days of testimony of the twenty-four day trial, defendants filed various severance motions. Speck and Bradley sought complete severance from co-defendants on the basis of prejudicial spillover. The remaining defendants requested the severing of the marijuana counts from the cocaine counts. 2 The district court did not rule with respect to any of those motions prior to trial. However, on the fifth day of testimony, that court severed the marijuana counts from the indictment pursuant to Fed.R.Crim.P. 14 and continued the trial against the nine defendants in connection with the cocaine counts.
At the conclusion of trial, the jury acquitted Speck on each of the cocaine counts pursuant to which he was charged; however, the jury failed to reach a verdict concerning any of the cocaine counts as to Bradley. In addition, the jury found five of the remaining seven defendants guilty as to at least one of the cocaine conspiracy charges, and failed to reach a verdict as to two others. 3
The trial court set the severed marijuana counts against Bradley and Speck apart for a subsequent trial, and denied appellants' motions to dismiss those charges. Contending as they had below that retrial of those remaining counts is barred by the Fifth Amendment of the Constitution, Bradley and Speck appeal. We affirm.
The evidence adduced by the government at trial was that Bradley and Speck were active participants in extensive marijuana and cocaine smuggling operations from 1984 to 1986. According to that evidence, Speck flew an aircraft containing marijuana from Jamaica into the United States as part of a smuggling operation in 1984. In connection with that operation, Bradley added additional fuel capacity, i.e., plumbed, to a second aircraft involved in the smuggling operation and made other repairs to that aircraft in addition to acting as a "spotter" for both aircraft as they arrived over the United States to determine if law enforcement aircraft were in pursuit. In May, 1985, the participants in the marijuana smuggling operation became involved with cocaine because dealing in cocaine was more lucrative. The cocaine operation ran from May, 1985 until May, 1986. Bradley continued to plumb, and provide repairs to, aircraft involved in the smuggling. In addition, on at least one occasion, Bradley again acted as a "spotter" for aircraft returning to this country with cocaine. The government's evidence also showed that Speck allowed aircraft owned by himself and his brother to be used in the smuggling operation, "plumbed" certain of those planes prior to takeoff, and "checked out" in one of his aircraft one of the pilots who was to fly in the smuggling operation.
Under Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the denial of a double jeopardy motion is an appealable order, prior to trial, under 28 U.S.C. Sec. 1291, if the " 'claim[ ] of former jeopardy' " is "at least 'colorable,' " and is not " 'frivolous.' " Richardson v. United States, 468 U.S. 317, 322, 104 S.Ct. 3081, 3084, 82 L.Ed.2d 242 (1984), quoting Abney, 431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8, and United States v. MacDonald, 435 U.S. 850, 862, 98 S.Ct. 1547, 1553, 56 L.Ed.2d 18 (1978). In Richardson, Justice Rehnquist wrote that "[a] colorable claim ... presupposes that there is some possible validity to a claim." Id. 468 U.S. at 326 n. 6, 104 S.Ct. at 3086 n. 6.
The district court, in denying appellants' motion to dismiss the remaining charges against them, stated that it regarded appellants' double jeopardy claims as frivolous. In United States v. Dunbar, 611 F.2d 985, 986 (5th Cir.1980) (en banc ), the Fifth Circuit, 4 held "that an appeal from the denial of a frivolous double jeopardy motion does not divest the district court of jurisdiction to proceed with trial, if the district court has found the motion to be frivolous." The court commented that "this rule implements a theory of dual jurisdiction" between the district court and the circuit court, noting that "[t]he idea of dual jurisdiction is not a new concept in federal jurisprudence." Id. at 989. Under Dunbar, the court below, after making a written finding that appellants' double jeopardy motion was frivolous, was not thereby divested of jurisdiction over the within case, despite appellants' filing of notices of appeal to this court. Accordingly, the district court could have proceeded to trial herein without awaiting the results of this appeal if that court's decision that the within double jeopardy claim is frivolous were correct. 5 However, in its brief, the government concedes that Bradley and Speck have presented a "colorable" double jeopardy claim, and, consequently, that this court has jurisdiction to hear the instant appeal. In our view, that concession is appropriate, and we therefore treat the double jeopardy claim of appellants as nonfrivolous.
Speck and Bradley contend that retrial of the marijuana counts in this case 6 is barred by the Double Jeopardy Clause of the Fifth Amendment because, under United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971), the district court's severance during trial of the marijuana counts, without their consent, deprived them of their constitutionally protected right to have their trial completed by the jury selected to serve in that trial.
"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, 1078, 47 L.Ed.2d 267 (1976) (footnote omitted). The Supreme Court has long held that the Fifth Amendment's double jeopardy prohibition mandates that "jeopardy attaches when the jury is empaneled and sworn." Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2160, 57 L.Ed.2d 24 (1978), citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Where a criminal defendant requests and is granted a mistrial, double jeopardy provisions do not apply, absent prosecutorial or judicial misconduct which involves "bad faith in order to goad the [defendant] into requesting a mistrial." Dinitz, 424 U.S. at 607-08, 611, 96 S.Ct. at 1079-80, 1081; Jorn, 400 U.S. at 485, 91 S.Ct. at 557. However, "where the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal.' " Jorn, 400 U.S. at 484, 91 S.Ct. at 556, quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949) (footnote omitted). The Constitution protects that valued right "by requiring that a trial judge declare a mistrial without the consent of the defendant only after it determines that mistrial is a manifest necessity." Abdi v. State of Georgia, 744 F.2d 1500, 1503 (11th Cir.1984), cert. denied, 471 U.S. 1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985) (footnote omitted). In other words, in the absence of a motion or consent by the defendant, there can be no new trial unless " 'there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.' " Jorn, 400 U.S. at 481, 91 S.Ct. at 555, quoting Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).
Had the district court completely severed appellants from the trial as they requested, they would clearly presently have no double jeopardy claim absent a showing that the government intended "to subvert" the protections afforded by the Double Jeopardy Clause by "goad[ing them] into moving for a mistrial." Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). See United States v. Posner, 780 F.2d 1536, 1537 (11th Cir.), cert. denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986). However, in this case, the district court did not so do but rather severed the marijuana counts only and continued the trial against all of the defendants, including Speck and Bradley, as to the cocaine charges. When it so did, Speck and Bradley objected to the proposed severance, sought instead a complete severance, rather than just a severance of the marijuana counts, and advised the court...
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