U.S. v. Cameron

• Citation: 953 F.2d 240
• Decision Date: 07 January 1992
• Docket Number: No. 91-3447,91-3447
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifton CAMERON and Paul Tinson, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 240

953 F.2d 240

UNITED STATES of America, Plaintiff-Appellee, v. Clifton CAMERON and Paul Tinson, Defendants-Appellants.

No. 91-3447.

United States Court of Appeals Sixth Circuit.

Argued Oct. 1, 1991.

Decided Jan. 7, 1992.

Roger S. Bamberger (argued and briefed), Blas E. Serrano, Asst. U.S. Attys., Cleveland, Ohio, for U.S.

Alan C. Rossman (argued and briefed), Cleveland, Ohio, for Clifton Cameron.

Thomas G. Longo (argued and briefed), Cleveland, Ohio, for Paul C. Tinson.

Before MARTIN and MILBURN, Circuit Judges, and JOINER, Senior District Judge. ^*

JOINER, Senior District Judge.

Clifton Cameron and Paul Tinson appeal the district court's denial of a motion to dismiss indictments charging them with possession of cocaine base with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Their initial trial ended when the trial court declared a mistrial over defendants' objections. Defendants allege that retrial would violate the Double Jeopardy Clause of the Fifth Amendment. We disagree, and affirm the district court's denial of defendants' motion to dismiss.

I.

Defendants were arrested on March 2, 1990, and indicted March 21, 1990. Their trial began with the impanelling of a jury on February 7, 1991, with Judge Battisti presiding. The government presented its evidence, and rested its case on February 12, 1991.

On February 13, 1991, the Cleveland Plain Dealer published a front-page article entitled: "U.S. Probes Battisti's Handling of 1988 Case." Judge Battisti subsequently made the article a part of the record. In pertinent part, the article stated:

The investigation allegedly involves hearings Battisti conducted after he was notified by former U.S. Attorney Patrick M. McLaughlin that a defendant in his court had told an undercover F.B.I. agent he knew someone who could influence the judge.

The defendant, James V. Petrella Sr., 61, was under indictment on federal auto theft charges. Battisti accused McLaughlin of "shabby political maneuvers in a federal court" and claimed Petrella's allegations were unsubstantiated. He laid down new rules in his court concerning any information that might require a judge to remove himself from the case.

Battisti heard the case in which Petrella was convicted and sentenced him to three years probation, the first four months of which were to be served in a Youngstown halfway house.

Before leaving office, McLaughlin confirmed he had asked the Justice Department's Office of Professional Responsibility to investigate Battisti's handling of the Petrella case.

On February 13, 1991, Judge Battisti held a conference of approximately one hour with defendants' attorneys, soliciting their views on how best to proceed with the trial in light of the article. Both defendants and the government stated their opposition to declaration of a mistrial. Judge Battisti decided to voir dire the jury regarding the article, and, if the jurors were aware of the content of the article, to declare a mistrial.

When questioned, five of the jurors revealed that they had either read the article, or heard radio reports on the same topic addressed by the article. In light of the jurors' awareness of an investigation focused upon his handling of a criminal case, Judge Battisti was, appropriately, concerned that the publication of the newspaper article could affect the jurors' impartiality. Prior to declaring a mistrial, the judge found that there was "manifest necessity to declare a mistrial as a result of [the] publicity ... [and that] [t]hese conditions ... might ... tilt [the] entire proceeding one way or another." After declaring a mistrial, the judge further explained his reasoning, stating:

My reasons for this, of course, have to do with the fact that the jurors have--a number of the jurors--have read or heard the publicity that appeared in the Plain dealer [sic] this morning. That article will become a part of the record. I don't think it needs to be explained any further, unless counsel wish for a further explanation from the Court.

It certainly would be unseemly to say the least for me to poll this jury as to whether they're going to have any confidence in the Judge, and believe him, and follow his instructions after reading this sort of thing that they've read this morning, and heard this morning.

(Emphasis added.) Having declared a mistrial, Judge Battisti dismissed the jury, and recused himself from any further consideration of the case.

On March 5, 1991, defendants' case was transferred to the docket of Judge Manos. Defendants filed their motion to dismiss on March 27, 1991. Judge Manos entered an order denying the motion on May 21, 1991.

On appeal, defendants present this court with a single issue; whether Judge Manos erred in finding that Judge Battisti had not abused his discretion in ruling that he was presented with a manifest necessity for the declaration of a mistrial.

II.

This court has jurisdiction to hear defendants' interlocutory appeal from the denial of their motion to dismiss on double jeopardy grounds. 28 U.S.C. § 1291; Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977).

It is within a district court's sound discretion to declare a mistrial. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); Jones v. Hogg, 732 F.2d 53, 56 n. 1 (6th Cir.1984). We review de novo a district court's denial of a motion to dismiss on double jeopardy grounds. United States v. Goland, 897 F.2d 405, 408 (9th Cir.1990). We look to the record of the initial trial. While the Constitution does not require a trial judge to conduct a hearing on the record, the record must support the finding that manifest necessity justified the declaration of a mistrial. United States v. Bates, 917 F.2d 388, 397 n. 12 (9th Cir.1990); Arizona v. Washington, 434 U.S. 497, 516-17, 98 S.Ct. 824, 835-36, 54 L.Ed.2d 717 (1978).

The Constitution directs that no person shall twice be put in jeopardy of life or limb for the same offense, whether by being twice punished or twice tried. U.S. Const. Amend. V.; Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970). The Fifth Amendment's prohibition against twice placing a defendant in jeopardy has been recognized by the Supreme Court as "fundamental to the American scheme of justice," United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion), in reflecting a policy of finality for the benefit of criminal defendants. See Jones, 732 F.2d at 54. Embodied within the policy of finality is the "valued right" granted to a defendant by the Double Jeopardy Clause "to have his trial completed by a particular tribunal." Jorn, 400 U.S. at 484, 91 S.Ct. at 557 (citing Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. at 837). The Court described the basis for the prohibition in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), emphasizing that for the state to be permitted to make repeated efforts to convict an individual would violate an idea "deeply ingrained in Anglo-American jurisprudence." Id. at 187, 78 S.Ct. at 223. Unfettered reprosecution would result in subjecting the accused to "embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Id. at 188, 78 S.Ct. at 223.

The Double Jeopardy Clause, however, will not act as an absolute bar in every case. In some circumstances, a defendant's right to have his case resolved by a particular tribunal will be subordinate to the larger interest of the public in "fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). When a mistrial has been declared, reprosecution is generally permissible if the declaration came at the request or with the acquiescence of the defendant. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In the absence of such consent, reprosecution is not barred where a "manifest necessity" exists to declare a mistrial in the defendant's initial prosecution. Perez, 22 U.S. (9 Wheat.) at 580; Washington, 434 U.S. at 505-06, 98 S.Ct. at 830-31; United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17 (1976) (per curiam). In Perez, Justice Story stated the standard to be applied in determining whether retrial is permissible following a mistrial declared without the consent of the accused:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.

To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

Perez, 22 U.S. (9 Wheat.) at 580. This test has been consistently followed. See Jones, 732 F.2d at 55.

In light of Justice Story's recognition of the impossibility of stating all the circumstances in which a manifest necessity for declaration of a mistrial may arise, the "manifest necessity" test has never been applied in a mechanical fashion, but is viewed as a flexible...