U.S. v. Miranda-Parra, MIRANDA-PARRA and M

Citation637 F.2d 610
Decision Date18 September 1980
Docket NumberMIRANDA-PARRA and M,80-1472,Nos. 80-1450,s. 80-1450
PartiesUNITED STATES of America, Appellee, v. Anitaaria Delia-Estrada, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Arthur J. Hutton, Bernardo P. Velasco, Tucson, Ariz., for appellants.

Rhonda L. Repp, Asst. U. S. Atty., Tucson, Ariz., for appellee.

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

Before SNEED, ANDERSON and TANG, Circuit Judges.

PER CURIAM:

Appellants and other codefendants are charged by indictment with conspiracy to transport and harbor aliens, harboring aliens, and aiding and abetting the transportation of aliens. During the course of their trial a mistrial was declared by the district court because of an audible comment by a government agent during cross-examination of a government witness by defense counsel. A new trial date was set and appellants moved to dismiss the indictment on the ground of double jeopardy. The government opposed the motion and after a hearing the district court denied appellants' motion. Appellants appeal this denial under the authority of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The government filed an emergency motion for summary affirmance. We grant the motion and affirm the district court's denial of the appellants' motion to dismiss the indictment.

I. FACTS

Trial of the appellants commenced on June 3, 1980. During the course of the second day of trial, defense counsel was cross-examining a government witness, and attempted to obtain the address of the witness's wife in order to subpoena her. The witness indicated that he did not wish to reveal his wife's address. At this point a border patrol agent who was sitting with the U.S. Attorney turned to the U.S. Attorney and, according to the appellant, said, "we'll produce her because he (the witness) is afraid for his wife."

Defense counsel heard this remark and objected. The court proceeded to question the jurors about what they had heard, and three jurors reported that they had heard at least a portion of the agent's remark. 1 The district court, after discussing the possibility of excusing one juror and calling in an alternate, declared a mistrial. The court stated, inter alia, that the statement was "gross misconduct," although the court further stated after excusing the jury that it believed that, in general, government agents "are not really very conscious of their obligation to avoid improper activities in cases."

Following the setting of a new trial date appellants filed a motion to dismiss the indictment on the ground of double jeopardy. The appellants' claims in this regard are two-fold: (1) the border patrol agent's act should be attributed to the prosecutor; and (2) the remarks represented "gross negligence" which bars retrial.

The government opposed this motion, and a hearing before the district court was held on June 23, 1980. After a full discussion of whether the agent's acts were attributable to the U.S. Attorney, and, if so, whether the statement constituted gross negligence, the court denied the motion to dismiss and held as follows:

The Court: The Court has given this matter a great deal of thought. In the first place, I don't find that the agent was grossly negligent in what he did.

It certainly tainted the Court and especially after the one problem the Court ran into in the first day of the trial, and I think he just acted on impulse and didn't keep his voice down when he should have and I don't find any intentional misconduct in the matter, certainly, and I don't think it was gross negligence.

Transcript of Hearing, June 23, 1980 at 18.

The appellants filed their Abney appeals on June 25 and 26.

Pursuant to a letter sent to district court judges by the Clerk of this court regarding the district court's ability to request expedited treatment of interlocutory appeals, the district court wrote a letter to this court on July 1, 1980 stating that in its opinion, the interests of justice required that this case be expedited. The district court further forwarded certain material requested by the Clerk's letter.

On July 17, 1980 the government filed an emergency motion for summary affirmance pursuant to Rule 6(h), Rules of the United States Court of Appeals for the Ninth Circuit. Simultaneously, the appellants filed responses to the motion for summary affirmance. Inasmuch as one of the appellants' codefendants is scheduled for trial on July 29, 1980, the government seeks expedited treatment in part so that all three defendants can be tried together.

Appellants raise two material issues. First, they contend that the showing of "irreparable harm" required by Rule 6(h) has not been made by the government and, second, that the issue whether the agent's acts were grossly negligent under the facts of this case should not be resolved by means of a summary affirmance. We reject both contentions.

II. THE RULE 6(H) ISSUE

So called "Abney appeals" have the potential of delaying the trial of an accused for a substantial period of time and of...

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5 cases
  • U.S. v. Glover, 83-2088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 6, 1984
    ...that the trial of criminal cases will be significantly delayed in the absence of such procedures." United States v. Miranda-Parra, 637 F.2d 610, 613 (9th Cir.1980) (per curiam); cf. United States v. Yellow Freight Systems, Inc., 637 F.2d 1248, 1252 (9th Cir.1980), cert. denied, 454 U.S. 815......
  • U.S. v. Yellow Freight System, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 20, 1981
    ...an internal procedure for expedited disposition of Abney appeals on their merits under 9th Cir. R. 6(h). United States v. Miranda-Parra, 637 F.2d 610, 612-613 (9th Cir. 1980); see also Abney, 431 U.S. at 662 n.8, 97 S.Ct. at 2042 n.8. Using this procedure, we disposed of the appeal in Miran......
  • U.S. v. Mitchell, 83-1237
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 2, 1984
    ...court cannot conclude that the decision on this issue was clearly erroneous, the appropriate standard of review, United States v. Miranda-Parra, 637 F.2d 610, 613 (9th Cir.1980); United States v. Calderon, 618 F.2d 88, 90 (9th In sum, while defendants by their mistrial request forfeited the......
  • U.S. v. Harris, 88-1082
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 6, 1988
    ...one reported case in which this court granted summary affirmance before the appellant's brief had been filed. United States v. Miranda-Parra, 637 F.2d 610, 612-13 (9th Cir.1980). It is distinguishable. Miranda-Parra was an Abney appeal concerning whether prosecutorial misconduct at trial ba......
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