U.S. v. Jarvis, 86-5003

• Decision Date: 25 June 1986
• Docket Number: No. 86-5003,86-5003
• Citation: 792 F.2d 767
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard JARVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 767

792 F.2d 767

UNITED STATES of America, Plaintiff-Appellee, v. Richard JARVIS, Defendant-Appellant.

No. 86-5003.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 8, 1986.

Decided April 21, 1986.

Designated for Publication June 25, 1986.

Gordon Greenberg, Los Angeles, Cal., for plaintiff-appellee.

Richard L. Knickerbocker, Marina Del Rey, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, HUG, and NORRIS, Circuit Judges.

HUG, Circuit Judge:

This is an appeal of the denial of a motion to dismiss the indictment on double jeopardy grounds after the declaration of a mistrial in a prior proceeding. The only issue on appeal is whether the record reflects the kind of "manifest necessity" in the declaration of the mistrial that is required to avoid the bar of double jeopardy. We have jurisdiction of the appeal of this pretrial order pursuant to Abney v. United States, 431 U.S. 651, 659-60, 97 S.Ct. 2034, 2040-41, 52 L.Ed.2d 651 (1977); United States v. Ajimura, 598 F.2d 510, 512 (9th Cir.1979).

On September 4, 1985, defendant Richard Jarvis ("Jarvis") and four others were indicted by a federal grand jury for several narcotics-related offenses. In the indictment, Jarvis is named as the central figure in a scheme to distribute large quantities of cocaine in Southern California.

On November 12, 1985, a jury was empaneled and heard opening statements from the prosecution and from the attorneys for each of the five defendants. Two government witnesses were called and testified. On the second day of trial, after the lunch break, counsel for Jarvis's co-defendants reported to the district court that all the jurors accidentally met Jarvis's four co-defendants at the elevator as they were being transported from the courtroom; the co-defendants were heavily shackled and chained together, and were under the guard of several United States Marshals. The jurors stared at the four defendants and evidenced a concerned reaction.

The attorneys for the four co-defendants argued that this confrontation would have a prejudicial effect on the jurors and would taint the remainder of the trial. All four of Jarvis's co-defendants moved for a mistrial. At the initial hearing on the matter, the Government argued against a mistrial. At this hearing, Jarvis's counsel made the following remark: "This does not affect my client, Mr. Jarvis, who is out on bond but, in a gesture of good faith, I would be happy to proceed alone if the court grants a mistrial."

After hearing arguments, the district court initially denied the mistrial motion, and the trial continued. Approximately two hours later, the district court recessed the proceedings and requested counsel to enter chambers. In chambers, the judge indicated that he was greatly concerned by the defendants' motion for mistrial and requested further research by the Government.

After hearing additional arguments on the matter, the district judge declared a mistrial. In reaching his decision, the district judge stated, "after due reflection I believe that the defendants' rights were compromised." The district court stressed that what the jurors saw would have a detrimental effect on the rights of all of the defendants to be presumed innocent of the charges. The district court further expressly found that Jarvis's right to a fair trial had been jeopardized because the jurors would infer his "guilt by association" with the other shackled defendants.

After the district judge reached this conclusion, Jarvis's counsel asked the judge if he could comment further and Jarvis's counsel then made the following remarks:

Very briefly, your honor, with respect to Mr. Jarvis, the court is well aware, for the sake of the record, Mr. Jarvis did not ask for a mistrial and specifically went against a mistrial. Therefore, Mr. Jarvis will be through a second and subsequent trial not by his request.

Therefore I would ask the court that the remedy for this would be a dismissal as to Mr. Jarvis or to proceed with this jury.

After hearing these comments, the district judge reaffirmed his decision to grant a mistrial. Prior to the rescheduled trial, Jarvis filed a motion to dismiss the indictment on double jeopardy grounds. On January 7, 1986, the district court denied Jarvis's motion, ruling that "manifest necessity" warranted dismissing the jury. This appeal followed.

In a jury trial, "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). Even after jeopardy attaches, however, reprosecution is not barred if the trial was terminated because of "manifest necessity." Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). The record must support the explicit or implicit finding of manifest necessity. United States v. Sanders, 591 F.2d 1293, 1299 (9th Cir.1979).

The degree of deference to be accorded the trial judge's determination of manifest necessity varies with the circumstances of each case. Arizona v. Washington, 434 U.S. at 507-10, 98 S.Ct. at 831-33; United States v. Jaramillo, 745 F.2d 1245, 1248 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2142, 85 L.Ed.2d 499 (1985)....