U.S. v. Chica

• Decision Date: 24 February 1994
• Docket Number: No. 93-4560,93-4560
• Citation: 14 F.3d 1527
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel Lazaro CHICA and Ineldo Leo Ramos, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1527

14 F.3d 1527

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Lazaro CHICA and Ineldo Leo Ramos, Defendants-Appellants.

No. 93-4560.

United States Court of Appeals, Eleventh Circuit.

Feb. 24, 1994.

Kathleen J. Cooper and Howard M. Srebnick, Asst. Federal Public Defenders, Miami, FL, for Chica.

Vincent J. Flynn, Coconut Grove, FL, for Ramos.

Roberto Martinez, U.S. Atty., Jose Bonau, Linda Collins Hertz, and Anne Ruth Schultz, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, Circuit Judge, and FAY ^* and JOHNSON, Senior Circuit Judges.

CARNES, Circuit Judge:

I. INTRODUCTION

Following the declaration of a mistrial over their objections, Manuel Lazaro Chica and Ineldo Leo Ramos moved to dismiss the indictment against them on double jeopardy grounds. They appeal the district court's denial of their motions. Because we hold that the declaration of the mistrial was not based on "manifest necessity," we reverse the district court's denial of the motions to dismiss the indictment.

II. BACKGROUND

The appellants, Manuel Chica and Leo Ramos, along with two codefendants, Israel Ramos, Jr., and Jesus Fernandez, were indicted for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Leo Ramos and Chica were also charged with use of a firearm in connection with the drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(2). A joint trial was scheduled for all four defendants.

On March 1, 1993, before a jury was sworn, the prosecutor informed the court that the case agent from the Bureau of Alcohol, Tobacco, and Firearms (ATF), had been ordered to Waco, Texas, immediately. ¹ According to the prosecutor, in this case the agent was "to testify to the firearms being taken into custody and to a statement made by Mr. [Leo] Ramos." Counsel for each of the four codefendants indicated that they would not object to the chain of custody of the weapons, their place of manufacture, or their working condition. As to the statement by Leo Ramos, the prosecutor indicated that he could probably introduce the statement through another witness. The court asked the prosecutor whether he was willing to "let your agent go," to which the prosecutor responded, "I think under the circumstances I will, Your Honor."

Also prior to the swearing of the jury, counsel for appellant Leo Ramos moved for a continuance "based upon the situation in Texas." Counsel argued that, because both cases involved the use of firearms to threaten law enforcement agents, the publicity around the Waco incident might prejudice any jury selected during the pendency of the standoff. The court denied the motion, considering it unlikely that "later on jurors would be more amenable to individuals who point guns and kill law enforcement agents."

After the agent had left for Waco, but before the jury was sworn, counsel for Israel Ramos informed the court that the agent's grand jury testimony, of which counsel had just received a copy, contained evidence favorable to his client and that, therefore, he would need the agent as a witness. The court offered to admit the agent's grand jury testimony, but counsel stated a preference for a live witness. Counsel for Jesus Fernandez stated that he too needed the agent to explore certain exculpatory grand jury testimony. Neither of the two appellants in this appeal, Leo Ramos and Chica, expressed any need for the agent. After a lunch recess, counsel for Israel Ramos renewed his request to continue the trial until the agent's return. The court decided to begin the trial and then recess it if necessary to allow the agent to return:

THE COURT: Why don't we do this. We could always begin the trial and recess. ... I would hope that everyone is praying that this incident in Texas will not last as long as it does. ... [M]aybe they can resolve it efficiently and he can be right back. And he will be available. And if I did that, then there would be no need for a continuance. Agreed?

MR. KAPLAN [COUNSEL FOR ISRAEL RAMOS]: That is true, Judge, but maybe--

THE COURT: That's the solution. So you won't have to bring in the Grand Jury testimony, because it seems like you prefer having the case agent here. And the government can bring in the case agent before the case is finished. And he would be available to be called, by either the government in rebuttal or by the defense, before the defense ends their case. ... And by then I would think that you could fly in the agent just for one afternoon. And he can fly back. And that would resolve any issues. In the event that there is an appeal, there would be no issues as to that. Would you agree or disagree with that, Mr. Kaplan?

MR. KAPLAN: If the Court's schedule in the case was to accommodate the presence of the agent, I would agree with that.

THE COURT: Done.

* * *

THE COURT: He will be here before the jury has a verdict in order for the defense counsel to call him. Do you agree [to] that, Mr. Bonau?

MR. BONAU [PROSECUTOR]: I will make every effort to get him here.

THE COURT: If not, this case will be in recess until that happens.

MR. BONAU: To begin with?

THE COURT: No. We will start; but before the case is over, he will be here [for] the defense to call him as a witness.

The jury was sworn and the trial began. The government's second witness at trial was its confidential informant, Esperanza Padron. To the surprise of all present, including the prosecutor, Padron testified concerning an unrelated drug offense which was inadmissible under a pretrial order. Padron's testimony prejudiced Israel Ramos and Jesus Fernandez, both of whom moved for a mistrial. Neither of the two appellants before this Court were prejudiced by the improper testimony and neither of them joined the motion for a mistrial.

The court granted Israel Ramos' motion and tentatively denied Jesus Fernandez's motion. The court then considered whether to sever Israel Ramos or to declare a mistrial as to the remaining defendants so that all four could be tried together. Both the court and the prosecutor expressed a desire to avoid two separate trials. The court invited the parties to consider the options and any relevant case law and then recessed for the night.

The next morning, the court invited counsel for Leo Ramos and Chica to comment "as to whether you want[ ] to proceed to trial with the remaining defendants or whether it serve[s] the interest of judicial economy to have one trial later on, which, incidentally, of course, would accommodate the case agent, who I assume is still in Waco." The prosecutor requested that "if the Court is going to grant a mistrial, that we have one trial with four defendants and that we would start again as soon as the Court could accommodate us." The court replied, "We might as well wait until the Waco incident is over, don't you agree, if I am going to do that? That way Mr. Kaplan [counsel for Israel Ramos] would have full cross examination rights of the particular agent." Counsel for Fernandez renewed his motion for a mistrial based on Padron's testimony and the court granted the renewed motion. Counsel for Leo Ramos and Chica, however, expressly requested that the trial proceed before the jury that had already been selected and sworn:

THE COURT: Mr. Flynn, anything you want to say?

MR. FLYNN [COUNSEL FOR LEO RAMOS]: No, Your Honor. I am here ready to go.

THE COURT: Mr. Srebnick.

MR. SREBNICK [COUNSEL FOR CHICA]: Your Honor, we would ask the Court to proceed with this jury. We would oppose any effort to start this all over again.

THE COURT: What's the prejudice to your client?

MR. SREBNICK: I believe we are very satisfied with the jury selected. We started the trial, and we are prepared to go forward now, and we would ask the Court to continue along that path.

MR. FLYNN: I would join in that position, Your Honor.

THE COURT: Even though you moved for a continuance originally?

MR. FLYNN: Yes, Your Honor.

* * *

MR. SREBNICK: Your Honor, we did not move for a continuance. We are inclined to proceed.

The court reiterated its desire to try the four codefendants together. The court also noted that the agent who had been called to Waco "would be testifying as to the firearms which implicates particularly Mr. Chica and Mr. [Leo] Ramos, the two who wish to continue in the trial, and perhaps I should have granted a continuance in the first place yesterday." The court concluded that the most appropriate course would be to reset the trial as to all four defendants. The prosecutor suggested the "possibility that we could proceed against the two defendants, Mr. Chica and Mr. Ramos, [Leo] Ramos. That would eliminate the problem of Mr. Kaplan [counsel for Israel Ramos] having to question the agent because we would have a later trial on that where the agent would be available." Although the prosecutor was willing to proceed with the trial against Leo Ramos and Chica, he was also willing to "go along with" the court's declaration of a mistrial as to all four defendants. The court declared a mistrial as to all four defendants and discharged the jury.

Appellant Chica moved to dismiss the indictment against him on double jeopardy grounds and appellant Leo Ramos followed suit. Both argued that jeopardy had attached when the first jury was sworn and that no sufficient justification existed for declaring a mistrial over their objections. The district court initially denied Chica's motion summarily; later it vacated that order, and entered a new order denying the motion. The new order explained that the decision to declare a mistrial as to Leo Ramos and Chica was "essentially an extension of [the court's] original decision to conduct a joint trial." The order said that the agent's absence was a "factor in the Court's decision," because a mistrial would "accommodate the ATF agent and allow both the prosecution and the defense the...