U.S. v. Brooks, 79-1282

• Decision Date: 05 June 1979
• Docket Number: No. 79-1282,79-1282
• Citation: 599 F.2d 943
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold W. BROOKS, D. O., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 943

599 F.2d 943

UNITED STATES of America, Plaintiff-Appellee, v. Harold W. BROOKS, D. O., Defendant-Appellant.

No. 79-1282.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 18, 1979.

Decided June 5, 1979.

David N. Williams, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.

Thomas A. Tabet, Albuquerque, N. M. (Steven C. Henry, Albuquerque, N. M., on the brief), for defendant-appellant.

Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

McWILLIAMS, Circuit Judge.

This appeal involves a claim of double jeopardy. Harold W. Brooks, D.O., was charged in a fourteen count indictment with violations of the Controlled Substances Act, 21 U.S.C. § 841(a)(1). Brooks' trial ended in a mistrial. Prior to being retried, Brooks moved to dismiss the indictment on the ground that to bring him to trial a second time would violate his Fifth Amendment rights. That motion was denied, and Brooks filed a notice of appeal under the authority of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

A brief statement of the facts and circumstances leading up to the mistrial will bring this matter into focus. The Government's case was based on alleged distributions of controlled substances by Dr. Brooks to certain Government informants. The conversations between the informants and Dr. Brooks were recorded through the use of a Nagra tape recorder placed in the purse of one of the informants.

After the indictment was returned against Dr. Brooks, and before trial, agents of the Drug Enforcement Administration learned of threats that had been made against the informants, and they were also advised that Brooks and his attorney, one Sigmund Bloom, were allegedly willing to pay money to the informants if the latter would either alter their testimony or disappear. The DEA determined to investigate the matter, and as a part of that investigation sent two of the informants to Bloom's law offices, one of the informants having the Nagra tape recorder in her purse. At the meeting, however, Bloom rejected, out-of-hand, the suggestion by the informants that either he, or Brooks, would pay for altered testimony. Bloom did not know, of course, that his conversation with the informants was being recorded, and it is this fact which later triggered the present controversy.

At trial, Ida Martinez, one of the informants, was being cross-examined by Bloom. In response to questioning, Ida Martinez confirmed that all of her conversations with Dr. Brooks were recorded, and she volunteered that her conversation with Bloom in the latter's law office was also recorded. It was at this juncture that the jury was excused, and after extensive argument and considerable testimony concerning the events leading up to the recorded conversation between the informants and attorney Bloom, the trial court declared a mistrial. The trial court's action was in response to Bloom's motion for a mistrial, which motion was personally approved by the defendant, Dr. Brooks. The Government resisted the mistrial request, contending that its investigation of Bloom relating to obstruction of justice was collateral to Brook's trial. As indicated, the trial court granted defense counsel's motion and declared a mistrial "in order to protect the defendant's rights."

In granting the mistrial, the trial court stated that notwithstanding the fact that the Government did not view its investigation of Bloom, the attorney, as part of its investigative file on Dr. Brooks, the Government nevertheless should have revealed, prior to trial, that it had a tape recording...