U.S. v. McMurry

• Decision Date: 23 February 1987
• Docket Number: Nos. 85-2249,85-2252,s. 85-2249
• Citation: 818 F.2d 24
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Wesley McMURRY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tommy Cordon EDWARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 24

818 F.2d 24

UNITED STATES of America, Plaintiff-Appellee, v. James Wesley McMURRY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Tommy Cordon EDWARDS, Defendant-Appellant.

Nos. 85-2249, 85-2252.

United States Court of Appeals, Tenth Circuit.

Feb. 23, 1987.

Susan M. Otto, Asst. Federal Public Defender (Richard Winterbottom, Asst. Federal Public Defender, on the brief), Tulsa, Okl., for defendant-appellant James Wesley McMurry.

C. Rabon Martin, Tulsa, Okl., for defendant-appellant Tommy Cordon Edwards.

John S. Morgan, Asst. U.S. Atty. (Layn R. Phillips, U.S. Atty., with him on the briefs), Tulsa, Okl., for plaintiff-appellee.

Before BARRETT, SETH and TACHA, Circuit Judges.

SETH, Circuit Judge.

Defendants-appellants, James Wesley McMurry and Tommy Cordon Edwards, were convicted on one count of conspiracy to possess and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846 in a second trial on the indictment.

Appellants contend that the indictment should have been dismissed after the prosecution deliberately caused a mistrial during the first trial. Appellant Edwards also argues that the trial court should have granted his motion for a pretrial Petersen-Andrews hearing.

The facts relevant to this appeal are as follows. Defendant McMurry had lived with his nephew, William Eugene Day, III, for a while. After their relationship had soured, Mr. Day established a connection with an FBI agent and became a government informant. He reported that Mr. McMurry and his friend, Mr. Edwards, had engaged in selling cocaine and recounted to the agent the details of a drug sale. Shortly after this sale was consummated the appellants and a Mr. Moncrief were arrested. After these arrests, and in reliance on Mr. Day's information, Tulsa police officers obtained a warrant to search rooms in a Tulsa motel. The search uncovered approximately 31 ounces of cocaine, and articles in the rooms identified the occupant as Mr. McMurry.

During his direct examination by government counsel at the first trial, Mr. Day stated that he had become a government informant in order to prevent a girl's murder. Counsel for appellants moved for a mistrial and the court granted the motion but found that Day's testimony was not the prosecution's fault. The trial court subsequently rejected the defendants' plea of double jeopardy and a motion to dismiss the indictment.

Noting that the Double Jeopardy Clause protects a defendant "against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions," the Court in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267, indicated that bad faith conduct by the prosecutor or judge would constitute a barrier to reprosecution even if the defendant had moved for a mistrial. 424 U.S. at 611, 96 S.Ct. at 1081. However, in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, the Supreme Court clarified this exception. It stated that prosecutorial harassment or overreaching by itself, even if sufficient to warrant a mistrial on the defendant's motion, could be insufficient to trigger the double jeopardy bar to retrial. 456 U.S. at 675-76, 102 S.Ct. at 2089. The Court adopted an intent-based standard and concluded that:

"[o]nly where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."

Our cases have taken an equally restrictive view of this narrow exception. See, e.g. United States v. Poe, 713 F.2d 579, 583 (10th Cir.).

Appellants argue that they were entitled to raise the double jeopardy bar to the second prosecution because in the first trial the government attorney was "grossly negligent" in asking his witness why he became an informant when the attorney knew that Mr. Day's answer to that question might be prejudicial. Appellants would have us shift our inquiry from prosecutorial intent to force defendants to move for a mistrial to gross negligence. We have not decided whether gross negligence alone would trigger the double jeopardy bar. See, United States v. Pollack, 640 F.2d 1152, 1155 (10th Cir.). We do not reach the question here because the record demonstrates that the conduct of the prosecution did not rise to the level of gross negligence.

After Mr. Day stated that he became an informant to prevent a girl's murder, a bench conference ensued. The Assistant United States Attorney stated that in preparing for trial, he had explained to Mr. Day that Mr. Day should not mention murder but needed to say something more general and apparently an understanding was reached. The trial judge specifically found that the...