U.S. v. Rivera

• Citation: 384 F.3d 49
• Decision Date: 14 September 2004
• Docket Number: No. 03-1660.,No. 03-1658.,No. 03-1659.,03-1658.,03-1659.,03-1660.
• Parties: UNITED STATES of America, v. Felipe RIVERA, Appellant. United States of America, v. Homer Willis Kelly, Appellant. United States of America v. Ludvig Danielson, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

384 F.3d 49

UNITED STATES of America, v. Felipe RIVERA, Appellant.

United States of America, v. Homer Willis Kelly, Appellant.

United States of America v. Ludvig Danielson, Appellant.

No. 03-1658.

No. 03-1659.

No. 03-1660.

United States Court of Appeals, Third Circuit.

Argued May 6, 2004.

Filed: September 14, 2004.

Appeal from the District Court of the Virgin Islands, Raymond L. Finch, J.

COPYRIGHT MATERIAL OMITTED

Jeffrey B.C. Moorhead (Argued), Christiansted, St. Croix, for Appellant Rivera.

Martial A. Webster, Frederiksted, St. Croix, for Appellant Kelly.

Beverly A. Edney, Kingshill, St. Croix, for Appellant Danielson.

David M. Nissman, United States Attorney, St. Clair Theodore (Argued), Assistant United States Attorney, Christiansted, St. Croix, for Appellee.

Before BARRY, AMBRO, and SMITH, Circuit Judges.

OPINION OF THE COURT

SMITH, Circuit Judge.

This case involves the application of the Double Jeopardy Clause where a District Judge has sua sponte declared a mistrial over a defense objection. The defendants were indicted for violations of 21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2. Near the close of the Government's case, a key witness injured his leg and was unable to appear in court as scheduled. Before the witness's prognosis could be ascertained by counsel or the District Court, and over the objection of defendants, the District Judge declared a mistrial, ordered the matter rescheduled for a new trial and denied a motion to dismiss the indictment. The defendants brought this timely appeal. We conclude that the declaration of a mistrial was not manifestly necessary and, as such, reprosecution is barred.

I.

On December 3, 2002, the United States Attorney for the District of the Virgin Islands filed an indictment against Felipe Rivera, Homer Willis Kelly and Ludvig Danielson, charging each with one count of conspiracy to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a) and 846. The indictment also charged each defendant with one count of attempting to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a), and 846, and 18 U.S.C. § 2.¹

A jury was empaneled and trial commenced on Monday, February 10, 2003. The trial proceeded over the course of the week, with the Government presenting its case. On Friday, February 14, the Government began the direct examination of its last witness, Christopher Schoenbaum. When the Friday session concluded, the District Court scheduled the resumption of trial for Tuesday, February 18, the day after Presidents' Day. Schoenbaum returned to Orlando, Florida for the long weekend.

Before trial resumed on Tuesday, February 18, the Government informed the Court that Schoenbaum had been hospitalized with a broken leg. According to the Government's attorney, Schoenbaum had undergone surgery during which a plate and several pins had been placed in his leg. The Government's information was that Schoenbaum was still in the hospital but that he was to be discharged in the near future. The trial was recessed until Thursday, February 20.

When court reconvened on the morning of February 20, the attorney for the Government explained that all that remained in the presentation of its case were tape recordings that would be played to the jury and the rest of the direct testimony of Schoenbaum.² The Government explained, however, that Schoenbaum would not be able to travel until the following week. Upon learning this, counsel for co-defendant Miranda-Colon, stated: "[Y]our Honor, for the record ... we're going to move for a mistrial." Miranda-Colon's counsel explained that he was concerned about the lapse of time between the jury hearing the Government's direct examination and the eventual cross-examination of Schoenbaum by the defendants. Further, Miranda-Colon's attorney was concerned that, if Schoenbaum were required to use a wheelchair, the jury would be more sympathetic to his testimony. Counsel for the remaining defendants joined in support of the motion. Counsel for Kelly commented that he had concerns about two of his witnesses going on vacation if the trial were to be postponed. Danielson's counsel cited scheduling conflicts if the trial were to be postponed. Counsel for Rivera expressed his concern that he would look like "some kind of animal" cross-examining Schoenbaum while he was recuperating. The Government opposed the defendants' motion for a mistrial. The District Court ruled promptly and summarily: "Very well. Motion for mistrial is denied." The District Judge made no other statements, nor did he provide the defendants the opportunity to seek reconsideration of his ruling. The Court recessed the jury for the day, and scheduled trial to resume on Monday, February 24.

When February 24th arrived, the attorney for the Government informed the Court that Schoenbaum had attempted to board a plane to return to the trial, but was turned back when narcotic medications and syringes were found in his luggage. According to the prosecutor, the airline, after questioning Schoenbaum as to his reason for possessing the medication, also refused to allow him to board the plane without a doctor's waiver. Government counsel noted that Schoenbaum was scheduled for an appointment with his doctor at 10:00 A.M. that very day and advised the Court that "within a few hours we [will] know whether or not the doctor will release [Schoenbaum] to get on the plane."

The defendants requested that the Government go forward or that the Court strike Schoenbaum's testimony. Rivera's attorney informed the Court that he did not want a mistrial. Counsel for Miranda-Colon instead suggested that "perhaps [they] could resume testimony tomorrow." The Government pressed the Court for more time. The following discussion then ensued:

THE COURT: The fact of the matter is that in this case there is inconvenience to everyone, Court, counsel, the Government. I have 140 people ready to go in another trial in anticipation of something like this happening. The big problem for me in this case is the way in which the case has unfolded. That is, with frequent interruptions, numerous interruptions, the jurors having to sit for long periods of time, sometimes for days, as a matter of fact. Together with the fact that the large portion of the testimony was recorded, and a large portion of it, recorded testimony, is still to be presented to the jurors. I find that the nature of the recording particularly is such that jurors are not likely to recall properly and fit into the proper sequence of events and give proper weight to this recorded testimony in light of the continued interruptions and the long delay. And I[am] dispose[d] to declaring a mistrial, and will so declare. I will declare a mistrial. Gentlemen and ladies, will you proceed downstairs to Magistrate Resnick, and he will reschedule the matter. I will discharge the jury.

[Counsel for Miranda-Colon]: For the record, Defendant Colon would like to object and ask for a dismissal.

THE COURT: Denied.

[Counsel for Rivera]: Denied?

[Counsel for Kelly]: I join in that.

THE COURT: Denied.

That same day, February 24, a Magistrate Judge issued an order re-scheduling trial for Monday, May 5, 2003. On March 5, 2003, the District Court issued a "notice" which read: "Defendants moved for a mistrial on February 24, 2003. At a hearing held on such motion, for the reasons stated on the record, the Court granted Defendants' motion." This timely appeal followed.

II.

We have jurisdiction over the District Court's rejection of the defendants' motion to dismiss under Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). While an order denying a motion to dismiss an indictment on double jeopardy grounds "lacks the finality traditionally considered indispensable to appellate review," Abney counsels that such orders satisfy the collateral order doctrine articulated in Cohen v. Beneficial Industries Loan Corp. Id. at 659, 97 S.Ct. 2034 (discussing Cohen v. Beneficial Industries Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). Because the District Court denied the defendants' motion to dismiss on what were clearly double jeopardy grounds, the jurisdictional requisites of § 1291 have been met. Id. at 662.

III.

The Double Jeopardy Clause forbids that "any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Under that clause, a defendant has a "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949), which is a right held by the individual, independent of the public interest in conducting "fair trials designed to end in just judgments," Arizona v. Washington, 434 U.S. 497, 503 n. 11, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (internal quotation and citation omitted).

Protections against double jeopardy are ancient³ and we interpret the Double Jeopardy Clause in light of "its origin and the line of its growth." Green v. United States, 355 U.S. 184, 199, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (Frankfurter, J., dissenting) (quoting Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 58 L.Ed. 1115 (1914)). The Double Jeopardy Clause's prohibition of multiple trials evolved in reaction to "a time when English judges served the Stuart monarchs by exercising a power to discharge a jury whenever it appeared that the Crown's evidence would be insufficient to convict." Washington, 434 U.S. at 507, 98 S.Ct. 824.⁴ Accordingly, a defendant may not be reprosecuted where a first trial has ended with an improperly declared mistrial. United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824).

A mistrial "may be granted upon the initiative of either party or upon the court's own initiative." United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 57 L.Ed.2d 65 ...