U.S. v. Mitchell, 83-1237

• Decision Date: 02 July 1984
• Docket Number: No. 83-1237,83-1237
• Citation: 736 F.2d 1299
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felix Wayne MITCHELL, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1299

736 F.2d 1299

UNITED STATES of America, Plaintiff-Appellee, v. Felix Wayne MITCHELL, et al., Defendants-Appellants.

No. 83-1237.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 9, 1984.

Decided July 2, 1984.

Marcus S. Topel, William M. Goodman, Topel & Goodman, San Francisco, Cal., Robert Lyons, Hayward, Cal., John Gigounas, James Molesky, San Francisco, Cal., Cristina C. Arguedas, Berkeley, Cal., Richard B. Mazer, Gilbert Eisenberg, William Osterhoudt, Hallinan, Berger, Osterhoudt, San Francisco, Cal., for defendants-appellants.

Joseph M. Burton, Charles B. Burch, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

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

Before SNEED and FLETCHER, Circuit Judges, and ENRIGHT, ^* District Judge.

ENRIGHT, District Judge:

This is an interlocutory appeal from a district court order denying defendants' motion to dismiss the indictment against them for, inter alia, violation of the Double Jeopardy clause of the fifth amendment of the Constitution. Defendants are charged in a nineteen-count indictment with conspiracy to distribute heroin and other related offenses. The first trial of the matter ended in a mistrial at defendants' request on July 6, 1983. That request was unopposed by the prosecution and was granted by the trial court, the Honorable William H. Orrick presiding.

Prior to commencement of the second trial, defendants moved to dismiss the indictment on double jeopardy grounds. Judge Stanley A. Weigel heard and denied the motion, 572 F.Supp. 709, on October 4, 1983. This court then granted the government's request that the appeal from Judge Weigel's decision be heard on an expedited basis. We affirm the district court's denial of defendants' motion to dismiss the indictment.

The fifth amendment prohibition against twice putting a person in jeopardy for the same offense protects a criminal defendant's "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Balanced against defendant's right, however, is the right of society to be protected against those guilty of crimes by enabling society to retry the accused under certain circumstances. Id. at 689, 69 S.Ct. at 837. In addressing those competing concerns, the rules that have emerged focus upon whether or not defendant has consented to the declaration of a mistrial.

Where the mistrial is declared over the objection of defendant, defendant cannot be retried unless there was "manifest necessity" for the mistrial, United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), the typical example of which is a hung jury, Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982). The "manifest necessity" exception protects defendant's interest in having his case finally decided by the jury which initially heard the matter by ensuring that the mistrial was indeed required, while also protecting society's interest in obtaining just results by allowing retrial of the defendant where the mistrial declaration was necessary. Id. at 672, 102 S.Ct. at 2087.

Where defendant consents to a mistrial, on the other hand, the "manifest necessity" doctrine does not come into play and as a general rule retrial is permitted because defendant himself has elected to terminate the proceedings and begin afresh. Oregon v. Kennedy, 456 U.S. at 672, 102 S.Ct. at 2087; United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). The Supreme Court has carved out a narrow exception, however, and held that where governmental conduct, either by judge or by prosecutor, is designed to goad defendant into moving for a mistrial, the Double Jeopardy clause will bar reprosecution despite defendant's consent to the mistrial. ¹ Oregon v. Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088.

Turning to the specific facts here presented, defendants' primary contention is that certain governmental conduct in this case, while not intended to prod defendants into seeking a mistrial declaration, nonetheless vitiates defendants' consent to the mistrial because it similarly circumscribed defendants' ability to choose one course of conduct over another.

The record indicates that the government was aware that two insiders in the alleged drug conspiracy, Leslie Brigham and Norbert Bluitt, would be used as government witnesses and that the government had made that determination prior to commencement of the initial trial. The government did not disclose the intention to call these insiders, however, in the interest of protecting their safety. The difficulty arises because these two witnesses had previously been represented on criminal charges by the attorney for the lead defendant Mitchell in the present case.

Further complicating the matter, one of the witnesses, Leslie Brigham, had allegedly been visited by defendant Mitchell's attorney, Arlene West, while Brigham was in state custody. On that occasion Brigham contended that Ms. West passed a note written by defendant Mitchell to Brigham, urging Brigham not to testify in the present criminal case.

The substance of this allegation of obstruction of justice by Arlene West came to the attention of the trial judge prior to trial during an in camera examination of government agent Steiner's declaration filed in opposition to the release of material witness Leslie Brigham. Defendants were not informed of this in camera proceeding and hence did not have knowledge prior to trial of the potential conflict of interest between Arlene West's possible obstructive acts and her ability to fully cross-examine the government's witnesses.

The first government witness to be called when the trial began on June 20, 1983, was Fred Sanders. On cross-examination, Sanders testified that he had not discussed the case prior to trial with the prosecutors. During a recess, defense counsel ascertained from prosecutors that this was not the case; the prosecutors had discussed the case with Sanders at the pretrial stage. Upon resumption of the trial, however, Sanders again denied such a discussion, even despite attempts by the government to refresh his memory on redirect examination.

After this inconsistency was brought to Judge Orrick's attention, he adopted the following procedure for correction of the error. The prosecution made an unsworn statement to the jury estimating as the total time spent discussing the case with Sanders prior to trial as twenty hours. Then defense attorneys were permitted to again cross-examine Sanders; this time he testified that the time spent with prosecutors in pretrial discussions was forty hours. Judge Orrick also indicated he would give the jury strong and emphatic instructions on credibility.

At the conclusion of Sanders' testimony, the government informed the defense that Norman Bluitt, the insider, would be called as a witness. Objecting on the basis of Arlene West's prior representation of Bluitt, defendants moved for a dismissal or for a mistrial and submitted supporting declarations showing that West could significantly impeach Bluitt if she testified, but that much of her testimony would also implicate her present client, Mitchell.

A few days later, on July 5, 1983, the government revealed its intention to call Leslie Brigham as a witness as well. In response to renewed defense motions to dismiss or for a mistrial, the court held separate in camera sessions with opposing counsel. At the session with defense counsel, one defense attorney remarked that it was surprising that the government had not even alerted Judge Orrick to the potential conflict.

Following the in camera sessions, the court ruled that the trial would go forward with Bluitt's testimony limited so that it would be unnecessary to call West to impeach him. All defendants then joined in a motion for a mistrial which was granted without opposition from the government.

The parties have stipulated to certain facts for purposes of the challenge to retrial on double jeopardy grounds. Specifically, they agree that Judge Orrick was aware of the conflict between Arlene West's representation of lead defendant Mitchell and her prior connection with Leslie Brigham through the agent's declaration of May 23, 1983. In addition, it is agreed that counsel for the defense was not aware of the conflict until after the trial was underway. Finally, the stipulation provides that defense counsel would not have consented to a mistrial but for their mistaken belief that the government had made no in camera disclosure of the West conflict.

Based upon the foregoing, defendants argue that to retry them at this point would be violative of the Double Jeopardy clause. It is defendants' contention that the withholding of the information as to the West conflict until late in the trial by the prosecution with the knowledge of the court is tantamount to "goading" defendants into declaring a mistrial in that the request for a mistrial was made without the benefit of all the relevant information. ² It is our view, however, that to so hold would result in a significant expansion of existing precedent, one that is expressly foreclosed by recent Supreme Court pronouncements on the issue.

Defendants rely almost exclusively upon United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In Dinitz, the trial judge had banished defendant's primary attorney from the trial in its opening stages. At that point, the judge offered defendant three choices as to how to proceed. First, defendant could request a stay pending appellate review of the propriety of the court's exclusion of counsel. Second, defendant could continue with the present trial with his other attorneys assuming the role of trial counsel. Or, third, defendant could move for a mistrial and obtain other counsel. Defendant thereupon moved for a mistrial.

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