U.S. v. Passmore

• Decision Date: 01 April 1982
• Docket Number: No. 81-1240,81-1240
• Citation: 671 F.2d 915
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Grant PASSMORE, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 915

671 F.2d 915

UNITED STATES of America, Plaintiff-Appellee, v. John Grant PASSMORE, Defendant-Appellant.

No. 81-1240

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 1, 1982.

Victor Sherman, Los Angeles, Cal., for defendant-appellant.

Sidney Powell, Asst. U. S. Atty., San Antonio, Tex., David B. Smith, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, SAM D. JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Passmore appeals from the district court's order denying his motion to dismiss the indictment against him on grounds of double jeopardy. We affirm.

Passmore and John Dorr were charged with, and following a trial by jury convicted of, conspiracy to import marihuana into the United States from the Republic of Mexico, conspiring to possess marihuana with intent to distribute it, and aiding and abetting themselves and other conspirators in the commission of such offenses. Passmore and Dorr appealed, and this Court, holding that a portion of the prosecution's closing jury argument was improper and prejudicial, reversed the convictions and remanded the case for a new trial. United States v. Dorr, 636 F.2d 117 (5th Cir. 1981). Following reversal and prior to retrial, Dorr pleaded guilty. Appellant Passmore filed a motion to dismiss the indictment, alleging that the prosecution was guilty of intentional or grossly negligent misconduct in the prior trial by its closing jury argument and by its introduction in evidence of the plea bargaining agreements of its witnesses, the co-conspirators Halteman and Gonzalez, and that a retrial was therefore barred on double jeopardy grounds. The motion was submitted to Judge D. W. Suttle, who presided at the first trial, and by agreement of the government and Passmore was considered on the basis of the transcript of the first trial without the taking of further evidence.

In his memorandum opinion denying the motion to dismiss, Judge Suttle noted that although this case involved a second prosecution following appellate reversal, he would rule on the motion under the standards applicable to cases in which the initial prosecution was terminated by mistrial. He noted that under this Court's opinions in United States v. Charette, 625 F.2d 57 (5th Cir. 1980), and related cases, a mistrial granted on the defendant's motion bars a second trial if, but only if, considering "(t)he totality of the circumstances" there is "gross negligence or intentional misconduct on the part of the Government which has seriously prejudiced the defendant." Applying this standard, Judge Suttle stated that "(f)rom an examination of the totality of the circumstances, this court finds that the prosecutor did not act in bad faith" and:

"The prosecutor did not make his prejudicial remarks intentionally or as a result of gross negligence; rather, he made the remarks inadvertently, without any bad purpose in mind. The prosecutor did not deliberately make the remarks to prejudice the defendant; he made them in the heat of argument as a rebuttal to the defense attacks on his chief witness's credibility." ¹

In our view appellant was not entitled to have the motion to dismiss passed on under any standards more favorable to him than those the district court employed, and indeed appellant does not question the district court's view of the law in this regard. Instead, Passmore insists that, contrary to the district court's findings, the transcript of the first trial plainly establishes intentional or grossly negligent prosecutorial misconduct seriously prejudicial to him. In these circumstances, we must affirm the district court unless, on review of the record as a whole, we determine that its referenced findings are "clearly erroneous." United States v. Charette, 625 F.2d 57, 58 (5th Cir. 1980); United States v. Luttrell, 609 F.2d 1190, 1192 (5th Cir. 1980); United States v. Davis, 589 F.2d 904, 906 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2178, 60 L.Ed.2d 1055 (1979); United States v. Crouch, 566 F.2d 1311, 1318 (5th Cir. 1978). As we agree with the government that the district court's findings are not clearly erroneous, its denial of the motion to dismiss is affirmed for that reason. Accordingly, we do not reach the government's other contentions though they raise serious questions of double jeopardy law. ²

The sole basis for reversal of the conviction of appellant and Dorr was the following portion of the closing rebuttal argument to the jury made by Assistant United States Attorney Murphy, who tried the case for the government:

"They would also have you believe, ladies and gentlemen, that this entire conspiracy was cooked up by Mr. Fagan, a conspiracy to get these men, and it was aided and abetted by Mr. Whitworth (DEA agent) and myself. And I believe Mr. Sherman (counsel for Passmore) told you that a Court in this United States can do whatever they want (sic) and he would never question that. Look at the transcript of that proceeding where Mr. Fagan was sentenced when the Judge says, 'You have done what I asked you to do.' That's Judge Sneed (District Judge for the State of New Mexico who accepted Fagan's guilty plea in state court). Look at the plea agreements of Mr. Halteman and Miss Gonzalez in which it says (sic), 'The Court,' that means the Judge, 'must decide if these agreements are in the interest of justice and has the sole discretion.' The Court has the discretion not to accept them.

"I would have to assume then, ladies and gentlemen, that Mr. Sherman and Mr. Nicholas and Mr. Barrera (defense counsel for Dorr) feel that this Court, Judge Suttle and the Judge up in Rosswell (sic), New Mexico are all out to get their clients. Does that make sense? Does that appeal to your reason? Does that appeal to your common sense?" (United States v. Dorr, 636 F.2d at 119-20.)

Halteman, Gonzalez, and Fagan, though Fagan was not named a defendant, were alleged in the indictment as being co-conspirators with Dorr and Passmore, and each testified for the government, Fagan being its main witness and Halteman an important one. Gonzalez, some seven weeks before trial, and Halteman, a few days prior to trial, were allowed by Judge Suttle to plead guilty to superseding misdemeanor informations. Pursuant to their written agreements with Assistant United States Attorney Murphy, they undertook to cooperate in the investigation, give a truthful statement, and testify if called. The government agreed that if the court accepted the pleas and Gonzalez and Halteman cooperated as promised, then at the time of sentencing on the misdemeanor the felony indictment would be dismissed. If the court did not accept the agreements as being in the best interest of justice the pleas could be withdrawn and statements made under the agreements would not be used against them.

Fagan had pleaded guilty in New Mexico state court to drug offenses arising out of a portion of the course of conduct charged in the indictment. While sentencing was pending on this plea, Drug Enforcement Administration (DEA) agent Whitworth and New Mexico officer Adams (both also government witnesses in the trial) informed Judge Sneed, the New Mexico state district judge, of the potential benefit of Fagan's cooperation. Judge Sneed gave the agents to understand that if Fagan cooperated he would not sentence him to the penitentiary. Upon this information being relayed by the agents to Fagan, and an oral agreement being made between Fagan and Assistant United States Attorney Murphy that if he cooperated in the investigation he would not be federally prosecuted, Fagan testified before the grand jury which returned the instant indictment. This was reported to Judge Sneed who thereafter sentenced Fagan to three years' probation, the probation being transferred to Texas. The plea bargain agreements of Halteman and Gonzalez, and cover letters from Murphy transmitting them to Judge Suttle, were introduced in evidence. Also admitted in evidence was a letter from Judge Sneed to Judge Suttle explaining the former's handling of Fagan's case, and a transcript of the proceedings at Fagan's sentencing by Judge Sneed.

In holding the above-quoted argument of the prosecutor to be reversible error, this Court stated:

"In the present case, we may have found no difficulty with the prosecutor's closing argument if he had merely questioned the reasonableness of a conspiracy between the DEA agents, the prosecutor and the government witness, since defense counsel had suggested such a possibility. Defense counsel, however, never implicated either the New Mexico state judge who accepted Fagan's plea of guilty or the federal district judge. Nonetheless, the prosecutor discussed the state judge's reasons for accepting Fagan's plea bargain agreement although there was no testimony of the judge's reasons for accepting it. The prosecutor also went so far as to suggest to the jury that defense counsel was contending that both judges were involved in a conspiracy to convict the appellants. No such argument by defense counsel was ever presented.

"....

"... The first part of the prosecutor's argument could very well have suggested to the jury that since a state judge accepted Fagan's plea, his story must be considered as true ab initio, thus supplanting the jury's choice on credibility for that of the judge's. The second part of the challenged portion of the argument was overly prejudicial because it inserted a factor, that of a conspiracy between the judges against Dorr and Passmore, which did not exist in the case at all.

"... In light of the prosecutor's reference to a nonexistent defense theory of both state and federal judicial conspiratorial involvement, Halteman's testimony has also been tainted by the prosecutor's remarks. For the foregoing reasons, we find that the prosecutorial misconduct in this case requires...