U.S. v. Cyphers

• Decision Date: 21 April 1977
• Docket Number: 76-1439,Nos. 76-1438,s. 76-1438
• Parties: 1 Fed. R. Evid. Serv. 956 UNITED STATES of America, Plaintiff-Appellee, v. Skeeter CYPHERS and David Willman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1064

553 F.2d 1064

1 Fed. R. Evid. Serv. 956

UNITED STATES of America, Plaintiff-Appellee, v. Skeeter CYPHERS and David Willman, Defendants-Appellants.

Nos. 76-1438, 76-1439.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 6, 1976.

Decided April 21, 1977.

Chester L. Blair, Richard F. Walsh, Federal Defender Program, Chicago, Ill., for defendants-appellants.

Samuel K. Skinner, U. S. Atty., James R. Streicker, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, PELL and BAUER, Circuit Judges.

BAUER, Circuit Judge.

Following a jury trial, defendants-appellants were convicted of the armed robbery of an Erie, Illinois bank and sentenced to prison terms of eight years each for violating 18 U.S.C. §§ 2113(a) and (d).

Defendant Cyphers argues on appeal that his rights under the double jeopardy clause were violated when he was retried following a mistrial. Cyphers also assigns as error the district court's refusal to permit him access to a presentence report sought for the purpose of impeaching a government witness, as well as the court's admission of testimony concerning a narcotics transaction between Cyphers and a government informer.

Defendant Willman contends that the circumstantial evidence on which he was convicted was insufficient to support the jury's verdict, and that the trial court erred in not questioning the jurors sua sponte as to whether they knew why a fellow juror had been excluded from the panel after the trial had begun.

Finally, both defendants argue that the trial court erred in admitting opinion testimony based on a government expert's microscopic comparison of hair samples.

We affirm the defendants' convictions for the reasons noted below.

I.

Prior to the defendants' first joint trial, Willman moved for a severance stating that the Government was planning to call a witness to testify to an incriminating admission made by Cyphers that would incriminate Willman as well. Under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), such testimony would be inadmissible in a joint trial unless redacted so as not to incriminate Willman. Instead of granting a severance, the district court permitted the Government to instruct its witness to substitute the word "partner" when testifying to Cyphers' references to Willman. The attempted use of redacted testimony failed, however, when the witness mentioned Willman's name during his testimony at trial. Willman moved for a mistrial. Cyphers, however, refused to join his codefendant's motion and objected to proceeding with the trial alone. Cyphers believed that he would be substantially prejudiced by a separate trial because he had already informed the jury that he would rely on a joint alibi defense, and he was concerned that certain defense witnesses, including Willman himself, might not testify at a separate trial.

The district court then advised Cyphers that his objection to proceeding with the trial alone would be construed as a motion for a mistrial and a waiver of any double jeopardy claim he might raise to prevent a retrial. The district court, after receiving assurances from Cyphers that he had consulted with counsel on the matter and understood the possible consequences of adhering to his objection to a separate trial, declared a mistrial as to both defendants.

Prior to the defendants' second joint trial. Cyphers moved to dismiss his indictment on double jeopardy grounds. Adhering to his admonition that he would treat Cyphers' objection to proceeding with his first trial as an implied motion for a mistrial and a waiver of his double jeopardy claim, the district judge denied the motion.

Cyphers argues on appeal that the district court should have dismissed his indictment because he neither moved for, nor caused, the mistrial. He blames the Government's choice of trial tactics for the mistrial and contends that he should not have been forced to make the Hobson's Choice of either waiving his constitutional rights under the double jeopardy clause or else risking substantial prejudice to his defense by withdrawing his objection to being tried alone.

The Government answers that the district court was correct in treating Cyphers' objection to a separate trial as an implied motion for a mistrial and a waiver of his double jeopardy claim. Stressing that the mistrial was necessitated by no prosecutorial overreaching or judicial misconduct, but rather by an inadvertent slip-up of a properly instructed witness, the Government says that, if the district judge had not acted as he did, it would have been faced with the equally difficult choice of having either to dismiss Cyphers' indictment or else to defend against the due process claim that Cyphers would now be raising on appeal had he been forced to trial alone.

We agree with Cyphers that, by standing on his objection to proceeding with the trial alone, he did not forfeit his right to claim double jeopardy on retrial. He was entitled to assert both his right to a fair trial and his "valued right" to have his trial completed before the first jury empaneled to determine his guilt or innocence. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). He should not be penalized for asserting one of his constitutional rights by being forced to waive another. Cf. Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Accordingly, we hold that Cyphers' refusal to proceed to trial alone did not constitute an implied motion for a mistrial and a waiver of his double jeopardy claim.

We disagree, however, with Cyphers' contention that his rights under the double jeopardy clause were violated by the procedure used in this case. A defendant's "valued right" to go to the first jury must at times be subordinated to "the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, supra at 689, 69 S.Ct. at 837. Where a "manifest necessity" exists, trial courts are given wide latitude to declare a mistrial and order a new trial so that the ends of public justice will not be defeated by inadvertent errors ¹ infecting the first proceeding. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 1079-80, 47 L.Ed.2d 267 (1976); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

We believe that, in the circumstances of this case, declaration of a mistrial was manifestly necessary to serve the ends of public justice. Although we cannot say that a reversal would have been a certainty had Cyphers been convicted after being forced to proceed to trial alone, his due process objection to that procedure had sufficient merit for the trial judge, in the exercise of sound discretion, to have determined that the ends of public justice would be better served by declaring a mistrial and ordering a new trial. See Illinois v. Sommerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Moreover, even if not declared at Cyphers' own request, the mistrial was surely ordained for his benefit. He can hardly complain that he was "penalized" by the district court's vigilant regard for his right to a fair trial. See Gori v. United States, 367 U.S. 364, 366-69, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); United States v. Gentile, 525 F.2d 252, 255-58 (2d Cir. 1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1493, 47 L.Ed.2d 753 (1975).

The important consideration, for purposes of double jeopardy analysis, "is that the defendant retain primary control over the course to be followed in the event of . . . error." United States v. Dinitz, supra, at 609, 96 S.Ct. at 1081. The district court scrupulously sought Cyphers' views regarding the procedure to be followed after a mistrial as to his codefendant became necessary. Cyphers was advised by the court that he would be given a new joint trial unless he chose to proceed alone with the first trial. In so doing, the court effectively placed "primary control" over the course to be followed in Cyphers' hands. Cyphers stood on his objection and refused to join the motion for a mistrial, with full knowledge of the practical consequences of his actions.

Because declaration of a mistrial was manifestly necessary to give Cyphers the fair trial procedure he wanted and to serve the ends of public justice, we do not believe that his rights under the double jeopardy clause were violated under the circumstances of this case.

II.

Cyphers next argues that the district court erred in denying his motion for production of a presentence report concerning a government informer who testified to an incriminating admission made by Cyphers while he was in the Metropolitan Correctional Center awaiting trial. Cyphers believes he was denied the effective assistance of his counsel because the federal presentence report may have contained information useful in cross-examining and impeaching the witness. He says that, even if the report was not technically in the hands of the prosecution and thus was immune from production under Rule 32 of the Federal Rules of Criminal Procedure or Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it was available through the good offices of the court and should have been turned over because it was necessary to prepare his defense.

We have previously noted the critical importance of maintaining the confidentiality of presentence reports and have refused to require their production. E. g., United States v. Greathouse, 484 F.2d 805, 807 (7th Cir. 1974). Nevertheless, there may be some circumstances wherein disclosure of a presentence report may be absolutely essential to effective presentation of a defense and therefore required in the interests of justice. E. g., United States v. Figurski, 545 F.2d 389, 391-92 (4th Cir. 1976); Hancock Bros., Inc. v. Jones, 293 F.Supp. 1229, 1233 (N.D.Cal.1968). We need not decide here, however, whether and under what circumstances disclosure of a presentence report might be required, for...