U.S. v. Newman, s. 92-10362

• Decision Date: 28 September 1993
• Docket Number: Nos. 92-10362,92-10412 and 92-10566,s. 92-10362
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary A. NEWMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 623

6 F.3d 623

UNITED STATES of America, Plaintiff-Appellee, v. Gary A. NEWMAN, Defendant-Appellant.

Nos. 92-10362, 92-10412 and 92-10566.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 1993.

Decided Sept. 28, 1993.

Negatu Molla, Kimble, Gothreau & Nelson, Tucson, AZ, for defendant-appellant.

Robert L. Miskell, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.

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

Before: POOLE, BOOCHEVER and FERNANDEZ, Circuit Judges.

POOLE, Circuit Judge:

Gary A. Newman appeals his conviction and sentence, following a jury trial, for one count of setting a fire willfully and without authority in a National Forest in violation of 18 U.S.C. Sec. 1855. We have jurisdiction over this timely appeal under 28 U.S.C. Sec. 1291. We affirm Newman's conviction, but we vacate his sentence and remand for recalculation of the offense level and reconsideration of restitution in light of Newman's ability to pay.

I

On March 26, 1990, Newman was convicted of setting a fire in the Coronado National Forest. This court reversed his conviction on appeal on the ground that the prosecutor's eliciting of testimony regarding Newman's post-arrest silence denied Newman a fair trial. See United States v. Newman, 943 F.2d 1155, 1157-58 (9th Cir.1991).

On March 18, 1992, the district court dismissed the indictment without prejudice pursuant to the Speedy Trial Act, 18 U.S.C. Sec. 3161(e), because Newman was not brought to trial within 70 days after remand. On April 29, 1992, the grand jury reindicted Newman on the same count that was dismissed on March 18, 1992. On June 9, 1992, the district court denied Newman's motion to dismiss on double jeopardy and speedy trial grounds.

The following evidence was adduced at trial.

On May 29, 1989, two Forest Service special agents, Kenneth Boerman and Dale McCormick, began surveillance of Newman, a twenty-year Forest Service employee. They previously had installed a tracking device on the bottom of Newman's truck. At approximately 9:40 a.m., the agents spotted Newman's truck travelling north on Highway 83 and followed him for approximately two miles. Newman then turned right onto a small road and parked. Boerman continued the surveillance on foot.

At approximately 9:50 a.m., Boerman saw the truck, climbed a tree to get a better view, and watched the truck through his binoculars. The truck was empty, and Boerman did not see anybody in the area.

At 10:40 a.m., McCormick heard a radio transmission from another Forest Service employee to Newman. Newman did not respond. At approximately 10:51 a.m., Boerman saw Newman return to his truck from the north. Newman got into his truck and headed back to Highway 83.

Boerman then walked toward the spot Newman had parked his truck, spotted smoke around 10:54 a.m., and reported the fire to McCormick. He walked north toward the fire, which was located seventy-five yards from the north fence of Black Oak Cemetery, an eight- to ten-minute walk from where Newman parked his truck. Boerman noticed that some large rocks had rolled out of place "as if someone had just come up or gone down the hill."

McCormick drove to the cemetery and, after he arrived, heard Newman report the fire over the radio at about 11 a.m. The Coronado National Forest Dispatch records showed that Newman reported the fire at 10:59 a.m.

McCormick also testified that an individual wearing vibrum-soled shoes walked north toward the cemetery from the area where Newman's truck was parked. McCormick was unable to follow the tracks to the site of the fire, but a partial vibrum-sole print made before the fire (as evidenced by ash in the print) was discovered near the fire site. The prints were consistent with shoes Newman was wearing. Agents Boerman and McCormick were wearing smooth-soled shoes that day.

May Gates went to the cemetery at about 9:45 a.m. that day to visit her husband's grave. At one point, she heard a man's voice utter approximately three sentences but did not hear a reply. After she saw McCormick's car, she noticed the fire. She saw no one at the cemetery or fire site before McCormick's arrival.

Newman arrived at the cemetery around 11:10 a.m. In response to McCormick's questions, Newman stated that he had seen smoke while driving toward Parker Canyon Lake, which is southeast of the ranger station, and denied starting the fire.

The next day, Newman gave a detailed statement which was inconsistent with the agents' surveillance of him. Newman's trial testimony also was inconsistent with the agents' account. In addition, Newman's description of his alleged activities covered territory of about 20 to 22 miles, whereas his odometer showed only 15.1 miles.

Agent Melvin Douglas of the Forest Service, who has specialized in wild land fire investigations and taught courses for almost twenty years, testified that he was able to eliminate various accidental causes of the fire such as lightning or a carelessly disposed cigarette. He testified that the fire was incendiary, although he could not determine exactly how it started. He stated that the fire began small and took time before it really got going. Two match books from which matches were missing were found in Newman's truck.

The jury convicted Newman on the count charged in the indictment, and the district court sentenced Newman to six months imprisonment and three years supervised release. As conditions of supervised release, Newman must serve six months house arrest and pay restitution of $55,173. Newman timely appeals.

II

Newman first contends that the Double Jeopardy Clause barred his reindictment and retrial following the district court's dismissal of his first indictment without prejudice under the Speedy Trial Act. The district court dismissed the indictment because Newman was not brought to trial within 70 days after this court reversed his conviction. See 18 U.S.C. Sec. 3161(e). We review de novo the district court's decision not to dismiss the second indictment on double jeopardy grounds. See United States v. Bates, 917 F.2d 388, 392 (9th Cir.1991).

Generally, the Double Jeopardy Clause does not bar reprosecution of a defendant, such as Newman, whose conviction is overturned on appeal for any trial error other than insufficiency of the evidence. Lockhart v. Nelson, 488 U.S. 33, 39-40, 109 S.Ct. 285, 290-91, 102 L.Ed.2d 265 (1988); Burks v. United States, 437 U.S. 1, 15-18, 98 S.Ct. 2141, 2149-51, 57 L.Ed.2d 1 (1978); United States v. Scott, 437 U.S. 82, 90-91, 98 S.Ct. 2187, 2193-94, 57 L.Ed.2d 65 (1978); United States v. Sanchez-Robles, 927 F.2d 1070, 1075-76 (9th Cir.1991). Moreover, the government is free to reindict when the indictment is dismissed without prejudice pursuant to the Speedy Trial Act. See 18 U.S.C. Sec. 3162(a)(2); United States v. Taylor, 487 U.S. 326, 342, 108 S.Ct. 2413, 2422, 101 L.Ed.2d 297 (1988). Thus, courts have held that the Double Jeopardy Clause does not bar retrial of defendants on new indictments after their original convictions were reversed on appeal. See, e.g., Montana v. Hall, 481 U.S. 400, 403, 107 S.Ct. 1825, 1826-27, 95 L.Ed.2d 354 (1987) (per curiam) (retrial under sexual assault statute following reversal of incest conviction for ex post facto violation); Taylor v. Kincheloe, 920 F.2d 599, 602 n. 2 (9th Cir.1990) ("general rule is that if a defendant has his plea to a certain count set aside on appeal, double jeopardy is not implicated by his subsequently being recharged and tried on that same count"); United States v. Poll, 538 F.2d 845, 847 (9th Cir.) (retrial for willfully signing false tax return after reversal of conviction for willfully failing to pay employees' withholding taxes on the ground that the district court erred by excluding evidence), cert. denied, 429 U.S. 977, 97 S.Ct. 486, 50 L.Ed.2d 585 (1976); see also Burks, 437 U.S. at 13, 98 S.Ct. at 2148 ("[a] defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense [without violating the Double Jeopardy Clause]") (quoting United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195-96, 41 L.Ed. 300 (1896)).

Newman argues, however, that the district court should have dismissed the first indictment with, rather than without, prejudice because his counsel tried to withdraw his Speedy Trial Act claim after the district court dismissed the indictment without prejudice. Newman argues that the district court's dismissal of the indictment without prejudice over his objection is like a mistrial which, if granted over counsel's objection, requires a showing of "manifest necessity" to avoid double jeopardy barring reindictment and retrial. See United States v. Meza-Soria, 935 F.2d 166, 170-71 (9th Cir.1991) (when mistrial is granted over objections of defendant, government must show manifest necessity else double jeopardy will bar retrial); Bates, 917 F.2d at 392-98 (same). Newman also asserts that a contrary result would render the Speedy Trial Act meaningless.

Newman's "manifest necessity" argument--that his offer to waive the Speedy Trial Act claim rendered the district court's dismissal of the indictment akin to a mistrial requiring a showing of manifest necessity--is meritless. Newman's offer to waive the claim is irrelevant; the Speedy Trial Act prohibits even requested continuances "unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. Sec. 3161(h)(8)(A); see United States v. Lewis, 980 F.2d 555, 560-64 (9th Cir.1992). Because the district court did not make those findings when it set the original trial date, dismissal was required under 18 U.S.C. Sec. 3161(h)(8)(A), see Lewis, 980 F.2d at...