U.S. v. Leonard

• Decision Date: 08 March 1979
• Docket Number: 78-1719,Nos. 78-1716,78-1718,78-1717,78-1720,s. 78-1716
• Citation: 593 F.2d 951
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pat LEONARD, Johnny Bowline, Louis Butler, Curtis Hallum, Johnny Jones and Trish Leonard, Defendants-Appellants. , and 78-1721.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 951

593 F.2d 951

UNITED STATES of America, Plaintiff-Appellee, v. Pat LEONARD, Johnny Bowline, Louis Butler, Curtis Hallum Johnny Jones and Trish Leonard, Defendants-Appellants.

Nos. 78-1716, 78-1717, 78-1718, 78-1719, 78-1720, and 78-1721.

United States Court of Appeals Tenth Circuit.

Argued Jan. 23, 1979.

Decided March 8, 1979.

Julian K. Fite, U. S. Atty., Muskogee, Okl., for plaintiff-appellee.

Robert D. McDonald, Fort Gibson, Okl., for defendant-appellant Pat Leonard.

Jerry L. McCombs, Idabel, Okl., for defendant-appellant Johnny Bowline.

J. W. Coyle, III, Oklahoma City, Okl., for defendant-appellant Louis Butler.

John E. Shipp, Idabel, Okl., for defendant-appellant Curtis Hallum.

Gene Stipe, Oklahoma City, Okl., for defendant-appellant Johnny Jones.

J. Ron Wright, Muskogee, Okl., for defendant-appellant Trish Leonard.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is a companion case to United States v. Bowline, 593 F.2d 944 (10th Cir.). The United States of America, appellee, and Pat Leonard, Johnny Bowline, Louis Butler, Curtis Hallum, Johnny Jones and Trish Leonard, appellants, are the parties. In the companion case, the government appealed the trial court's order dismissing the conspiracy count of the indictment. The opinion of this court has affirmed the action taken by the trial court and has remanded the case for further proceedings.

The indictment, which is common to both of these cases, contained 15 substantive charges against various of the 36 original defendants. Twelve of these were tried in April 1978. Dismissals were granted as to two, three were found not guilty and seven were found guilty.

This trial started out with nine of the 36 defendants and ended with the trial court's grant of a mistrial because of the failure of the U. S. Attorney to comply with the Jencks Act, 18 U.S.C. § 3500. After the mistrial was granted, the court severed the conspiracy from the substantive counts and also severed the remaining substantive counts as to each defendant from the other. The mistrial was ordered on June 8, 1978. Six of the nine defendants are before us on appeal.

On July 5, 1978, the trial of the substantive counts of the indictment was called. At that time the several appellants moved to dismiss the indictment as to the substantive The question for consideration is then, whether the failure of the government during the six days of trial to comply with the Act of Congress, 18 U.S.C. § 3500, and the trial court's orders, both of which required delivery of Jencks Act material to the appellants, constituted prejudicial misconduct by the U.S. Attorney of sufficient magnitude and consequence so as to preclude a second prosecution.

counts. This was grounded on the proposition that the previous trial had placed all of them in jeopardy notwithstanding that they had sought the mistrial. The consent factor, it is contended, is offset by the overreaching on the part of the United States Attorney as a result of the failure by him to give over the Jencks Act material; that as a result, the appellants were denied the right of effective cross-examination. Also, at the time the mistrial was granted there had been several days of trial attended by great expense, difficulty and harassment.

The defendants say that the record establishes that substantial prejudice flowed from the conduct of the U.S. Attorney in failing to furnish them with witness statements in accordance with the Jencks Act. They complain that the U.S. Attorney was guilty of various practices incident to the withholding of the witness statements; that on occasion he would furnish a statement to one of the attorneys and fail to furnish it to the others. On still other occasions he would fail to give any witness statements. In some instances he postponed the giving of the statements until after the witness had departed. At other times he furnished statements in which he had deleted portions. This latter was revealed to have been information that was irrelevant to the defendants on trial. After discussion, the U.S. Attorney furnished complete copies and the court ruled that the deletions were proper.

The trial court's order had been specific in its requirement that the district attorney deliver witness statements to defense attorneys immediately after direct examination. The mistrial order contains the court's lengthy comments on the persistent failure of the district attorney to comply with its order and with the Jencks Act. This opinion, given from the bench, is transcribed in Volume IX of the record and is appended to this opinion.

The trial judge's ruling declared that there had been prejudice to the defendants as a result of the conduct of the United States Attorney, but that he was reluctant to declare a mistrial. The judge attributed this misconduct not to bad faith but, rather, to the fact that the U.S. Attorney was new in the office and was unfamiliar with all of the rules of criminal procedure, including 18 U.S.C. § 3500, the Jencks Act. The court also noted "that the Government was grudgingly furnishing discovery materials, and I so expressed it in one of my orders." The court attributed the U.S. Attorney's failure to his not being "informed about the law." The court said that the case was not a simple one and that the U.S. Attorney may not have realized its full magnitude, but the court said the law was clear in requiring that statements and reports be furnished to defense counsel at the conclusion of the testimony of the government agent, and that Rule 16 required that the evidentiary materials mentioned therein be provided to counsel.

If the trial court's finding of lack of bad faith is supported by the evidence, that is, of course, the end of the matter. Jeopardy does not take effect and retrial is not barred. But even if bad faith is held to be present, it does not in and of itself carry the day in the absence of a legal consequence.

Ordinarily where defendants Move for a mistrial they thereby elect to terminate the right to continue the present trial. Impliedly they elect to face a retrial. There is one exception to this general rule.

The standards of the Supreme Court for deciding applicability of the mentioned exception which bars a retrial following the granting of a defendant's motion for mistrial question whether actions of the trial court or of the United States Attorney have provoked a motion by the defendant for the The Supreme Court does not appear to have considered the question which is before us, but from what has been handed down it is to be gleaned that the conduct of the United States Attorney, which is necessary to bar a retrial, must have been purposeful or intentional or must have been reckless conduct which rises to the level of purposefulness and must have sought to provoke a mistrial motion from defendants.

mistrial. The result is that generally retrial is the rule. The only exception is where the court's or the United States Attorney's behavior was for the purpose of bringing about a motion for mistrial by the defendant's counsel.

The Supreme Court has ruled that retrial is barred where the conduct was undertaken to harass or prejudice the defendant (and cause a mistrial at defendants' behest). Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), and United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). It is to be inferred from the authorities, in addition, that retrial is likely to be barred where the prosecutor's conduct has resulted in a belief by him that acquittal is likely in any event. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). See also United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964).

The conclusion which we derive from the cases as to the general rule is that one who moves for a mistrial thereby consents to the termination of the present trial and waives his right to be tried by that jury and at the same time consents, however, to being retried. There is an exception that applies where the prosecutor or court acts for the purpose of bringing forth from defendants a mistrial motion. We can see no indication that the Supreme Court has contemplated that there shall be any expansion of the exception. The rule and the exception are discussed in the opinion of Mr. Justice Stewart in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), as follows:

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where "bad-faith conduct by judge or prosecutor," United States v. Jorn, supra, at (400 U.S.) 485, (91 S.Ct., at 557) threatens the "(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant. Downum v. United States, 372 U.S. (734), at 736 (83 S.Ct. 1033, at 1034, 10 L.Ed.2d 100 at 102). See Gori v. United States, 367 U.S. (364), at 369 (81 S.Ct. 1523, at 1526, 6 L.Ed.2d 901, 905); United States v. Jorn, supra, (400 U.S.) at 489, (91 S.Ct. at 559, 27 L.Ed.2d at 558) (Stewart, J., dissenting); cf. Wade v. Hunter, 336 U.S. (684), at 692 (69 S.Ct. 834, at 838, 93 L.Ed. 974).

But here the trial judge's banishment of Wagner from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal.

424 U.S., at 611, 96 S.Ct., at 1081.

Despite the trial court's finding that the U.S. Attorney's actions in this case did not constitute bad faith, our reading of Dinitz and the other cases convinces us that bad faith in the abstract does not help the defendant in any event. It must be bad faith, the impact of which provokes a mistrial request. We cannot say...