U.S. v. Jaramillo

• Decision Date: 23 October 1984
• Docket Number: No. 84-1091,84-1091
• Citation: 745 F.2d 1245
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Estella JARAMILLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1245

745 F.2d 1245

UNITED STATES of America, Plaintiff-Appellee, v. Estella JARAMILLO, Defendant-Appellant.

No. 84-1091.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 13, 1984.

Decided Oct. 23, 1984.

Valerie Stewart, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Lloyd Charton, Tustin, Cal., Robert J. Hantman, Peckar & Abramson, New York City, for defendant-appellant.

Appeal from the United States District Court for the District of nevada.

Before MERRILL, ALARCON and NELSON, Circuit Judges.

ALARCON, Circuit Judge:

Estella Jaramillo appeals from the denial of her motion to bar her retrial. ¹

I PERTINENT FACTS

Jaramillo was indicted by the Federal Grand Jury for the District of Nevada, sitting in Las Vegas, for (1) aiding and abetting the distribution of a controlled substance in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1), and (2) conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846.

Trial began on December 6, 1983, before District Court Judge Harry E. Claiborne. The jury was selected and sworn on the following day. Later the same day, the jury heard opening statements, and testimony of three of the government's witnesses. During the morning session on December 8, the government began the direct examination of its fourth witness. At the conclusion of the noon recess, Judge Claiborne invited Jaramillo's attorney and the government prosecutor into his chambers and informed counsel that he had just received word that he had been indicted by the Federal Grand Jury for the District of Nevada sitting in Reno, and that he "[didn't] have any alternative but to declare a mistrial in this case." ² Jaramillo's attorney made no comment nor did he suggest that the trial judge consider recusing himself so that the trial could proceed before a different judge.

Thereafter, Judge Claiborne commenced the afternoon session by making the following statement to the jury:

Ladies and gentlemen of the jury, I regret to advise you that I have been advised that I have been indicted by the grand jury in Reno. By reason of that fact--it would be inappropriate for anybody to preside in a trial who is under indictment. For that reason I am declaring a mistrial in this case.

I thank you for the inconvenience of serving as a juror, and I regret the circumstances which cause this trial to be delayed. So, you are excused with my thanks.

After the jury left the courtroom, Judge Claiborne ordered that the matter be set for trial on February 13, 1984. The prosecutor then stated: "Thank you, your honor." Judge Claiborne replied, "I am sorry. I know you were ready to go, but I can't help it. Court will be in recess." Again, Jaramillo's counsel remained silent and On the date Judge Claiborne declared a mistrial, he was the only active judge hearing cases in Las Vegas, Nevada. Senior Judge Roger D. Foley handled a limited load of civil cases.

failed to propose an alternative to the declaration of a mistrial.

On January 12, 1984, Jaramillo filed a motion to bar retrial on double jeopardy grounds because "[t]here was no manifest necessity for declaring a mistrial." In her points and authorities filed in support of this motion, Jaramillo asserted for the first time that "[n]o alternatives to the mistrial were discussed or explored." Jaramillo also argued that "[d]efense counsel was never consulted or given an opportunity to object or suggest alternatives." Oral argument on Jaramillo's motion was heard by Judge Foley on March 19, 1984. He denied the motion on March 20, 1984. On the same date, Jaramillo's motion for a stay pending appeal was granted by Judge Foley.

II ISSUE

We must decide whether the unique circumstances which confronted Judge Claiborne as the result of being indicted while presiding over a criminal trial constituted a manifest necessity for the discharge of the jury and the declaration of a mistrial.

In seeking reversal, Jaramillo contends that the indictment of Judge Claiborne did not establish "the high degree of necessity which would warrant a declaration of mistrial." We disagree.

III ANALYSIS

A. Manifest Necessity

The double jeopardy clause of the fifth amendment of the Constitution protects an accused's "valued right to have his trial completed by a particular tribunal." Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978), quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). To prevent unfairness to the accused, the prosecutor is generally entitled to only one opportunity to require the accused to stand trial. Arizona, 434 U.S. at 504-05, 98 S.Ct. at 829-30. Jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 29, 98 S.Ct. 2156, 2157, 57 L.Ed.2d 24 (1978); United States v. Williams, 717 F.2d 473, 475 (9th Cir.1983). It is clear from this record that jeopardy had already attached before a mistrial was declared.

Even after jeopardy attaches, however, reprosecution is not barred if the trial was terminated because of "manifest necessity." Arizona, 434 U.S. at 505, 98 S.Ct. at 830; Williams, 717 F.2d at 475. The manifest necessity standard was first announced by the Court in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824):

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 ....

Judge Claiborne made no finding of manifest necessity before declaring a mistrial. He stated only that he believed it would be "inappropriate" for him to proceed. He also did not discuss the possible double jeopardy consequences of his action. In Arizona v. Washington, 434 U.S. 497, 516-17, 98 S.Ct. 824, 835-36, 54 L.Ed.2d 717 (1978), the Court held that the trial court's failure to make an explicit finding of manifest necessity was not constitutionally defective. A reviewing court may determine from the record whether the mistrial was required by manifest necessity.

The degree of deference to be accorded the trial judge's determination of manifest necessity varies with the circumstances of each case. Arizona, 434 U.S. at 507-10, 98 S.Ct. at 831-32; Williams, 717 F.2d at 475.

In Arizona v. Washington, 434 U.S. at 508-10, 98 S.Ct. at 831-32, the Court described the standard of review as a continuum with strictest scrutiny applied to the court's determination where the accused claims that the mistrial was caused intentionally by the prosecution and, at the other end, great deference accorded the trial judge's conclusion that a mistrial is required because of a deadlocked jury. In Arizona, the trial court declared a mistrial after defense counsel made an improper opening statement. The Court granted this determination "great deference" so as not to impede the trial judge in the performance of his duty to protect the integrity of the trial. Id. at 513-14, 98 S.Ct. at 834. Even where a decision is given great deference, however, this court may overturn it if it is irrational or irresponsible. Id. at 514, 98 S.Ct. at 834.

The record here does not reveal that intentional prosecutorial misconduct caused the mistrial. The United States Attorney's Office for the District of Nevada which prosecuted Jaramillo was recused from the investigation of Judge Claiborne in June, 1981. The Public Integrity Section of the Department of Justice presented the evidence against Judge Claiborne to the grand jury. Thus, we are not required to review this record under a strict scrutiny standard.

A trial judge's determination that it is inappropriate for him to continue to preside over a criminal case after he has been indicted is arguably analogous to the judge's determination of possible juror bias at issue in Arizona. In both situations, an overly rigid standard of review might cause a judge to proceed with the trial of a case where the integrity of the entire proceeding was seriously clouded in order to avoid declaring a mistrial which might result in a double jeopardy claim. Whether deference or great deference is applied to Judge Claiborne's declaration of a mistrial, we reach the same result in this matter. The extraordinary circumstances of this case required that a mistrial be declared.

Jaramillo argues that the mistrial was not a necessity because the indictment of a presiding judge does not disqualify him or her from completing the case.

In denying Jaramillo's motion to bar retrial, Judge Foley apparently concluded that Judge Claiborne was required to disqualify himself under 28 U.S.C. Sec. 455(a). That statute provides that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. Sec. 455(a) (1982). The purpose of section 455(a) is to protect the courts against even the appearance of partiality. United States v. Poludniak, 657 F.2d 948, 954 (8th Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1431, 71 L.Ed.2d 650 (1982) citing Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980).

Recusal is required under section 455(a) if a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir.1984); Trotter v. International Longshoremen's & Warehousemen's Union, 704 F.2d 1141, 1144 (9th Cir.1...