U.S. v. Martinez, s. 81-1363

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Citation: 667 F.2d 886
• Docket Number: 81-1812 and 81-1862,Nos. 81-1363,s. 81-1363
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Franke Eugenio MARTINEZ, a/k/a Frank E. Martin, a/k/a Francisco Martinez, Defendant-Appellant-Cross-Appellee.
• Decision Date: 03 February 1982

Page 886

667 F.2d 886 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,
v.
Franke Eugenio MARTINEZ, a/k/a Frank E. Martin, a/k/a
Francisco Martinez, Defendant-Appellant-Cross-Appellee. Nos. 81-1363, 81-1812 and 81-1862. United States Court of Appeals,
Tenth Circuit. Argued and Submitted Nov. 10, 1981.
Decided Nov. 27, 1981.
Rehearing Denied Feb. 3, 1982.

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Sander N. Karp, Karp, Goldstein & Stern, Denver, Colo. (Kenneth H. Padilla, Denver, Colo., with him on the briefs), for defendant-appellant-cross-appellee.

William Coulson, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Robert T. McAllister, Asst. U. S. Atty., Denver, Colo., with him on the briefs), for plaintiff-appellee-cross-appellant.

Before LAY, Chief Judge, GIBSON, Senior Judge, and BRIGHT, Circuit Judge. ^*

LAY, Chief Judge.

Martinez appeals the denial of his motion to dismiss based on prosecutorial and judicial misconduct relating to four counts of an indictment charging possession and mailing of explosives. The government cross-appeals the district court's dismissal of three other counts of the same indictment based on a finding of double jeopardy. For reasons discussed, we dismiss each appeal for lack of jurisdiction.

On November 9, 1973, Martinez was indicted on seven counts relating to possession of unregistered explosives and the sending of explosives through the United States mails. Before trial commenced, in January 1981, ¹ four counts were severed by the district court, Chief Judge Fred Winner presiding. Martinez went to trial on counts one, four, and seven; one count alleged a conspiracy and the other two charged possession of explosives and mailing of the explosives to an individual known as Carol Hogue.

On January 27, 1981, trial commenced in Pueblo, Colorado on the unsevered counts. On January 29, the defendant moved to replace two jurors with two alternates because of complaints allegedly made by the

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two jurors about spectators wearing T-shirts with "Free Kiko" (defendant's nickname) printed on them. The two jurors had also allegedly complained about a law student at the defense table wearing sunglasses. The government objected to the motion and Judge Winner denied the motion.

On the evening of the third day of trial, January 29, the trial judge held a secret meeting with the prosecutors, court personnel, and several government witnesses in his hotel room. Neither defendant nor his counsel were notified about this meeting. Judge Winner stated that he believed there was an atmosphere of intimidation in the court room caused by some of the spectators who were sympathetic to the defendant and that he wanted hidden cameras to be installed to record the intimidation. Judge Winner informed the prosecutors that he would grant a motion for a mistrial, but advised them not to make such a motion until after the cameras were installed and after the defense presented its case. The judge further indicated that he could provoke defense counsel to request a mistrial. One witness, Officer Tyus, stated that he could cause a mistrial by giving testimony which had previously been ruled inadmissible. Judge Winner repeated many of these comments in chambers to United States Attorney Roberts who arrived from Denver the next day. The trial judge also expressed a desire to remain in ex parte contact with the prosecutors. The reason given for not inviting defendant's counsel to the meeting was the court's suspicion (unverified on this record) that one of defendant's counsel might be involved in a conspiracy to intimidate the jury.

On January 30, the morning after the meeting, the government stated that it "did not object to the granting of defendant's motion for a mistrial." At that time all of the defendant's motions had been overruled. The prosecutor, Mr. Barksdale, explained:

We understand the jurors' two names were in the newspaper. I was aware of that this morning. We also understand from the Court this morning that the-in court, of course, the juror was-one juror was ill, and we, therefore, have changed our position.

The court granted a recess to allow the defense to decide whether to join in the government's motion. The defense then joined in the motion. The trial court granted the joint motion for mistrial.

After the original trial was terminated and a new trial was ordered, the defense discovered evidence of the Thursday night meeting held in Judge Winner's hotel room. ² On the basis of the limited evidence then available, defense counsel filed a motion to dismiss counts one, four, and seven on the ground of double jeopardy. The retrial of these counts had been transferred to Judge John Kane in Denver. The government objected to defense counsel's attempt to question government lawyers; this objection was sustained and thus the defense was effectively precluded from discovering the details of the Thursday night meeting. Judge Kane then denied the motion to dismiss. Thereafter Martinez appealed.

On defendant's motion, the court "partially remanded" the case to the district court for further evidentiary hearings concerning the defendant's motion to dismiss.

The case was assigned to Judge Luther Eubanks, United States District Judge for the Western District of Oklahoma. Hearings were held on June 30 and July 1, 1981. At these hearings, defendant filed a new motion to dismiss all seven of the original counts on the grounds of prosecutorial and judicial misconduct. Evidence elicited at these hearings revealed the substance of the Thursday night meeting. ³

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Judge Eubanks found that because Martinez was not informed about the Thursday night meeting, "the defendant was induced or lead into confessing, stipulating to, or agreeing to a mistrial motion without the benefit of all the facts." Judge Eubanks held that under these circumstances, defendant's consent to the motion for mistrial "is no consent at all, because he was not apprised of all the facts in connection with it" and therefore retrial would constitute double jeopardy. Judge Eubanks granted defendant's original motion to dismiss counts one, four, and seven for which he had been placed in jeopardy. The judge denied the motion to dismiss the previously severed counts two, three, five, and six. Both the defendant and the government filed new appeals. ⁴

The Government's Appeal.

We turn first to the government's cross-appeal of Judge Eubanks' dismissal of counts one, four, and seven. 18 U.S.C. § 3731 provides:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

Under section 3731, an evaluation of the merits of defendant's double jeopardy claim is necessary in order to determine whether we have jurisdiction to hear the government's cross-appeal. United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190-91, 57 L.Ed.2d 65 (1978).

The law is well settled that if a defendant does not move for or join in a motion for a mistrial, the defendant may only be retried on a showing of "manifest necessity" for the declaration of the mistrial. United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). However, where a defendant consents to a mistrial,...