U.S. v. Calabrese

• Decision Date: 26 May 1981
• Docket Number: Nos. 79-1388,79-1390 and 79-1392,s. 79-1388
• Citation: 645 F.2d 1379
• Parties: 7 Fed. R. Evid. Serv. 1666 UNITED STATES of America, Plaintiff-Appellee, v. Charles Armen CALABRESE, Samuel Ray Calabrese, Charles R. Knowles, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1379

645 F.2d 1379

7 Fed. R. Evid. Serv. 1666

UNITED STATES of America, Plaintiff-Appellee, v. Charles Armen CALABRESE, Samuel Ray Calabrese, Charles R Knowles, Defendants-Appellants.

Nos. 79-1388, 79-1390 and 79-1392.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 5, 1980.

Decided March 26, 1981.

Certiorari Denied May 26, 1981.

See 101 S.Ct. 3008.

James N. Barber of Barber, Verhoef & Yocom, Salt Lake City, Utah, for defendant-appellant Charles Armen Calabrese.

Oscar Goodman, Las Vegas, Nev., for defendant-appellant Samuel Ray Calabrese.

Michael Allen Straud, Aurora, Colo., for defendant-appellant Charles R. Knowles.

John Depue, Dept. of Justice, Washington, D. C. (with Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, on briefs), for plaintiff-appellee United States of America.

Before McKAY, BREITENSTEIN and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

Facts

Defendants Samuel Calabrese, Charles Calabrese and Charles Knowles were convicted of sixteen counts of interstate transportation of stolen property (18 U.S.C. § 2314), one count of engaging in a pattern of racketeering activity (18 U.S.C. § 1962(c)), and one count of conspiring to participate in racketeering activity (18 U.S.C. § 1962(d)). The indictment charged that defendants used a Utah building supply company to obtain building materials on credit with no intention of paying for them. The merchandise was allegedly transported to Nevada and California and sold.

Double Jeopardy

Defendants' first trial ended in a declaration of mistrial. Counsel for a co-defendant who was eventually acquitted attempted to impeach a government witness by inquiring whether the witness had lied in a pauper's affidavit filed in an earlier criminal proceeding. The examination revealed that the attorney had represented the witness in the earlier proceeding and had prepared the affidavit he was using for impeachment.

The trial judge stopped the questioning and conducted a hearing outside the jury's presence. The judge expressed concern that an attorney's impeachment of a former client with information obtained in their professional relationship made the attorney both a witness and an advocate for his position, injured the attorney-client relationship, and would bring disrespect upon lawyers and the court.

After discussion of the courses available to cure the impropriety, counsel for Samuel Calabrese recommended mistrial as the only viable alternative. The attorneys for Knowles and Charles Calabrese joined in the motion, but the latter subsequently withdrew from it. The government opposed the motion. After further discussion of the alternatives, the judge agreed that a mistrial was necessary. Upon later inquiry by counsel, the judge explained that the mistrial "motion was granted sua sponte taking into consideration the previous motions for mistrial that were made." (Record, supp. vol. A, at 42).

Prior to the commencement of the second trial, defendants moved for dismissal of the indictment on double jeopardy grounds. The court denied the motions, reminding counsel that their motions had prompted the mistrial declaration and finding, in any event, that the mistrial had been warranted by manifest necessity.

A defendant may not be retried after a declaration of mistrial unless the defendant requested or consented to the mistrial or unless there was "manifest necessity" for the mistrial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); United States v. Dinitz, 424 U.S. 600, 607-08, 96 S.Ct. 1075, 1079-1080, 47 L.Ed.2d 267 (1976) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824)). Because we find that there was manifest necessity for the mistrial declaration, we need not decide whether any defendant was barred from objecting to reprosecution by requesting or consenting to the mistrial.

We note first that the mistrial declaration was not caused by prosecutorial or judicial overreaching. Cf. United States v. Scott, 437 U.S. 82, 94, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978); United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). The impropriety was introduced by a defense attorney, and the government strenuously opposed the mistrial motion.

The words "manifest necessity" "do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge." Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978) (footnote omitted). The court below was confronted with a kaleidoscope of problems, including a possible violation of the attorney-client privilege, the attorney's role as both an advocate and a witness in the proceedings, and a controversy over the ethical propriety of the attorney's prior representation of the witness. The testimony placed the attorney's ethics in issue because he had prepared the allegedly false pauper's affidavit. The exchange was prejudicial to all defendants because the jury would tend to associate this attorney and his client with co-counsel and their clients. Counsel for Samuel Calabrese and Knowles told the court they felt obligated to call the attorney as a witness on credibility. This would have deepened the conflict between the attorney's role as advocate and witness and would have exacerbated the controversy over the attorney's ethics.

The record reveals that before declaring the mistrial the court considered a number of less drastic alternatives, including severing the trial of the defendant whose attorney had caused the impropriety, permitting him to obtain new counsel, and restricting the scope of cross-examination insofar as it related to disclosure of privileged communications. However, the court was not required to accept a solution which remedied only one of the problems or offered only temporary relief. A severance or substitution of counsel would not have removed the ethical issues raised in the jurors' minds or eliminate the other defendants' interest in impeaching the witness through use of the pauper's affidavit. Limiting the scope of cross-examination would have provided only limited relief, since counsel for two defendants indicated they would be obligated to call the attorney as a witness on the credibility issue. These or other remedial measures would not have necessarily removed the risk of bias created by the questions raised about the attorney's ethics. "(T)he overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected " Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 833, 54 L.Ed.2d 717 (1978). Therefore we sustain the trial court's finding that there was "manifest necessity" for a declaration of mistrial.

Motion for Change of Venue

Prior to trial, Charles Calabrese unsuccessfully moved for change of venue from the District of Utah to the District of Nevada on the grounds that he, another defendant, and witnesses they intended to call resided in Nevada, that the cost of transporting and housing the witnesses would constitute an undue burden, and that the character witnesses enjoyed reputations for integrity in Las Vegas and therefore would be more persuasive to a jury in Las Vegas.

Fed.R.Crim.P. 21(b) permits a court upon motion to transfer a proceeding to another district "(f)or the convenience of parties and witnesses, and in the interest of justice." The decision whether to grant a motion for change of venue rests largely in the sound discretion of the trial judge. United States v. Jobe, 487 F.2d 268, 269-70 (10th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); Wheeler v. United States, 382 F.2d 998, 1001-02 (10th Cir. 1967).

While the factors cited would support the granting of the motion, when weighed in context they do not compel that result. The business enterprise that was alleged to be the front for perpetration of the fraudulent scheme was located in Utah. Eight of the government's witnesses resided in Utah, and the offices of most of the victimized building supply firms were in Utah. Utah was "the location of events likely to be in issue," as well as "the location of documents and records likely to be involved." Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 244, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964). The trial judge did not abuse his discretion in denying the motion for change of venue.

Severance

Samuel Calabrese and Knowles claim that the trial judge abused his discretion by denying their motions for severance.

Contrary to Calabrese's contention, his defense was not directly antagonistic to Knowles' defense, and severance was not required. Knowles, who managed the business in Utah, testified that his inability to pay creditors was caused by the bank's refusal to honor checks written by Samuel Calabrese, who received the merchandise in Nevada. Calabrese's defense was not inconsistent with this testimony. Calabrese testified that he had stopped payment on certain checks because he had received insufficient merchandise to warrant the payment or because he intended to substitute checks for smaller amounts to facilitate collection. Both defendants testified that other payments were completed. Both defendants sought to demonstrate that they lacked the requisite intent to defraud. Neither accused the other of criminal culpability or of possessing the intent to defraud. Therefore, it was not the case that the defenses were irreconcilable, or that " 'the jury (would) unjustifiably infer that this conflict alone demonstrates that both are guilty.' " United States v. Becker, 585 F.2d 703, 707 (4th Cir. 1978) (quoting United States v. Ehrlichman, 546 F.2d 910, 929 (D.C.Cir.1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977)), cert. denied, 439...