U.S. v. Newton
| Decision Date | 29 April 2003 |
| Docket Number | No. 02-1643.,02-1643. |
| Citation | 327 F.3d 17 |
| Parties | UNITED STATES of America, Appellee, v. Michael NEWTON, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Michele J. Woods, with whom Joshua D. Franklin was on brief, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief, for appellee.
Before BOUDIN, Chief Judge, SELYA and LIPEZ, Circuit Judges.
This appeal involves, in part, the unusual claim that the defendant Michael Newton's retrial was barred by the Double Jeopardy Clause, U.S. Const. amend. V, because the trial judge intentionally provoked his request for a mistrial.
Newton was indicted with Wyman Hogan, Ernest Membrino and Edward Hall on October 12, 2000, by a federal grand jury sitting in the District of New Hampshire, and charged with conspiracy to possess with intent to distribute and to distribute fifty grams or more of cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846. The facts of the conspiracy pertain to an extensive operation of buying powder cocaine, manufacturing crack cocaine, and selling both powder and crack cocaine from a number of residences in and around the Keene, New Hampshire area. Newton was primarily charged in connection with the sale of cocaine in Keene, but outside of the residences allegedly controlled by the conspiracy's crack cocaine distribution operation.
On January 2, 2001, prior to jury selection, co-defendant Edward Hall notified the district court that he would present a defense that would portray the co-defendants in an unfavorable light, and moved to sever his case from the other defendants. The district court denied this motion. The other three co-defendants then moved for severance. The district court likewise denied their motion and proceeded to trial. After the jury was sworn, defendant Hall's counsel delivered an opening statement that corroborated much of the government's version of events. The other co-defendants renewed their request for severance and moved for a mistrial, which the district court granted. The retrial commenced on January 16, 2001, and resulted in Newton's conviction for conspiracy to distribute more than fifty grams of crack cocaine. On May 16, 2001, Newton was sentenced to two hundred and thirty-five months' imprisonment, to be followed by five years of supervised release.1
Newton appeals both the conviction and the sentence, arguing that his retrial after an initial mistrial was prohibited by the Double Jeopardy Clause, U.S. Const. amend. V, that the prosecutor violated Newton's Fifth Amendment right to remain silent by impermissibly commenting during closing argument on Newton's failure to testify, and that the district court committed an error of law during sentencing by failing to exercise independent judgment on evidence presented pertinent to sentencing. For the reasons stated below, we affirm Newton's conviction and decline to set aside his sentence.
The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). However, the Double Jeopardy Clause is not an absolute bar to successive trials. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). The protection embodied in the Double Jeopardy Clause is a personal defense that may be waived or foreclosed by a defendant's voluntary actions, including a request for, or effectual consent to, a mistrial. United States v. DiPietro, 936 F.2d 6, 9 (1st Cir.1991). Thus, in this case of retrial following the declaration of a mistrial, the key question for double jeopardy purposes is whether the mistrial was declared with the defendant's consent.
If a mistrial is declared with the defendant's consent, she is deemed to have waived any double jeopardy claim she might otherwise have. If, on the other hand, the defendant wishes to proceed to a verdict by the jury empaneled to try her, and the court declares a mistrial over her objection, the Double Jeopardy Clause will bar the defendant's retrial unless manifest necessity required the court to so act.
United States v. Aguilar-Aranceta, 957 F.2d 18, 22 (1st Cir.1992) (citing Dinitz, 424 U.S. at 608, 96 S.Ct. 1075). The only circumstance in which the defendant's consent to a mistrial does not operate as a waiver of her right to claim double jeopardy is where the prosecutor or the judge intentionally provokes the defendant to request the mistrial: "the circumstances under which [ ] a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Oregon v. Kennedy, 456 U.S. 667, 678, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (emphasis added). Here, Newton insists that the trial judge intentionally provoked his mistrial request.
To evaluate Newton's claim we must examine closely the sequence of events that prompted the judge to declare a mistrial, and what transpired between the judge and Newton's trial counsel. Defendant Hall's counsel first raised the issue of severance immediately prior to jury selection. Based on the vague assertion of a defense strategy that would be antagonistic to the other defendants, Hall's counsel requested that Hall be severed from the other three defendants. After requesting but failing to obtain details elucidating the proposed defense, the trial judge denied the motion. The three other defendants then made a joint motion to sever based on Hall's request. The judge similarly denied this motion and proceeded to empanel the jury and begin the trial.
During his opening statement, Hall's counsel characterized Hall as "a victim ... not a criminal" and claimed that Hall "was used" by his codefendants. There were no immediate objections by the other defendants to the defense outlined in Hall's opening statement. The following morning, however, counsel for one of the other defendants noted Hall's antagonistic defense and raised the possibility of renewing the motion to sever Hall from the trial. Newton's counsel joined in the renewed motion. The judge reserved ruling on the motion until the afternoon.
That afternoon, during an extensive colloquy on the motion to sever, the judge explained to defense counsel his position on the motion:
I will not grant any motion to sever unless I do an individual inquiry with each defendant and ascertain from each defendant that they understand what this means; that their case is being severed that a mistrial is being granted that they are waiving any double-jeopardy claim that they may have; that they fully understand that if they want to go ahead with trial with the current jury, they can.
. . .
[I]f I were to grant a mistrial based on the defendants' request for a mistrial because of the failure to grant severance and the trial evidence jointly being prejudicial to the defendants in their eyes, I could grant that request and not make a finding of manifest necessity, and notwithstanding the absence of a finding of manifest necessity, the defendants could be reprosecuted, notwithstanding the double-jeopardy clause.
In other words, the judge was telling the defendants that if they requested a mistrial and he granted this request despite the absence of manifest necessity for declaring such a mistrial, the Double Jeopardy Clause would not bar their reprosecution. Counsel for one of the other defendants immediately interjected: "we don't agree with that ... if the case law supports the position that this trial has gone so far that jeopardy has attached ... and that they're unable to be retried again and that it should be with prejudice, of course, we're not waiving that." Realizing that the defendants did not seem to understand the relationship between their request for a mistrial and their waiver of the double jeopardy bar, the court offered further explanation:
Supreme Court precedent makes very clear that where a defendant requests a mistrial, he waives any right he has to assert that a reprosecution gives rise to a double-jeopardy violation ... I can grant a mistrial over a defendant's objection without presenting a double-jeopardy question, only where there is a manifest necessity ... I don't think I could make a manifest necessity finding here unless I could conclude that there was an overwhelming probability that the jury could disregard my instructions to disregard any comments in [Hall's] opening statement ... I couldn't make that finding. I couldn't find manifest necessity.
Based on this determination that there was no manifest necessity for a mistrial, the judge thoroughly explained to the defendants their options regarding severance and mistrial:
If [Hall] wants a mistrial and severance and all three [other] defendants want a mistrial and severance I could do either of two things. I could either grant the severance motion and mistrial as to [Hall] and proceed to trial with the three defendants, giving a limiting instruction to the jury to disregard [Hall's] opening statement, or I could grant a severance and mistrial as to the three defendants, continue on with [Hall] and give an instruction to the jury to disregard any evidence that we determine is admissible against the three but not against [Hall].
I at this time am not persuaded by any argument that the defendants may have that mistrial is absolutely required because there's manifest necessity for a mistrial, but nevertheless, if they want a mistrial and there's a potential for reprosecution and double-jeopardy issues are plainly...
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