U.S. v. Salvador

• Decision Date: 15 August 1984
• Docket Number: Nos. 81-1759,81-1797,s. 81-1759
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elias Que SALVADOR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Katrina Denise SALVADOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 752

740 F.2d 752

UNITED STATES of America, Plaintiff-Appellee, v. Elias Que SALVADOR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Katrina Denise SALVADOR, Defendant-Appellant.

Nos. 81-1759, 81-1797.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 3, 1982.

Decided Aug. 15, 1984.

Arthur G. Garcia, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Francisco Leon, Asst. Federal Public Defender, Michael Morales, Phoenix, Ariz., for defendant-appellant.

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

Before CHAMBERS and GOODWIN, Circuit Judges, and EAST, ^* District Judge.

EAST, Senior District Judge:

The appellants Elias Que Salvador and Katrina Denise Salvador (husband and wife) were tried in federal court for the armed robbery of a credit union (18 U.S.C. Secs. 2, 2113). Appellants' first trial was terminated by a declaration of mistrial when the jury found itself deadlocked. Upon retrial, Elias Salvador was convicted on both counts of the indictment for the robbery of a federally insured credit union in violation of 18 U.S.C. Secs. 2, 2113(a) (Count I), and for doing so with the use of a dangerous weapon in violation of 18 U.S.C. Secs. 2, 2113(d) (Count II). Katrina Salvador was convicted on Count I of the indictment for her participation in the robbery and acquitted as to Count II.

On appeal from the judgment of conviction and sentence to custody, the Salvadors seek reversal based on two assertions of error. Initially, appellants contend the District Court abused its discretion in declaring a mistrial, and that as a result their reprosecution for the robbery was barred We first address the double jeopardy claim because, if meritorious, it would bar further prosecution notwithstanding the propriety of the District Court's exclusion ruling.

by the Double Jeopardy Clause of the Fifth Amendment. Appellants further contend the District Court erroneously denied their pretrial motion to suppress the evidence obtained as a result of the warrantless entry into a residence by the arresting authorities. We note jurisdiction and affirm.

I. DOUBLE JEOPARDY

Appellants' first trial began on October 15, 1981, and six days later was terminated by a declaration of mistrial when the jury failed to reach a verdict. The presentation of testimony and argument to the jury had taken only three and a half days. Yet, after deliberating approximately nine hours, the jury sent a note to the District Judge on the second day of deliberations stating: "The jury is not able to reach a decision on either defendant. We are deadlocked." After discussions with counsel, the District Judge gave the modified Allen charge and sent the jury back to deliberate. ¹ After deliberating an additional four hours and recessing overnight, the jury foreman sent a second and more explicit note about the deadlock to the court the next morning. This second note stated:

We are unable to reach a decision. The problem is a reliance on an answer arrived at through religious inspiration, and an unwillingness to move from that decision and base a decision on the evidence.

The evidence has been thoroughly examined. Those basing their decision on the evidence are unwilling to change.

After receipt of this second note, the District Judge discharged the jury and, over appellants' objection, declared a mistrial.

When a second trial date was set, appellants joined in a motion to dismiss the indictment on grounds of double jeopardy. The District Court denied the motion. A second trial began the following month, on November 17, 1981. Two days after this second trial had begun, the jury returned the guilty verdicts which are the subject of this appeal. We find no abuse of the District Court's discretion in declaring a mistrial after the initial jury had twice reported that they were deadlocked in the matter.

When a mistrial is declared over defendant's objection, the question may arise whether under the Double Jeopardy Clause of the Fifth Amendment there can be a new trial. Jeopardy will attach when the first jury in the case is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 29, 98 S.Ct. 2156, 2157, 57 L.Ed.2d 24 (1978); United States v. Williams, 717 F.2d 473, 475 (9th Cir.1983). The constitutional prohibition of twice placing the defendant in jeopardy embraces the 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); United States v. See, 505 F.2d 845, 851 (9th Cir.1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975). Yet, this right will be subordinated in particular circumstances "to the public interest in affording the prosecutor one full and fair opportunity to present [the] evidence to an impartial jury." Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). In short, the District Court may declare a mistrial and retry a defendant without violating the Double Jeopardy Clause if there was a "manifest necessity" for the discharge of the original proceedings or if the "ends of public justice" would be otherwise defeated if a mistrial was not declared. United States v. Cawley, 630 F.2d 1345, 1348 (9th Cir.1980).

The trial court can order a mistrial and proceed to a new trial where the jury is unable to agree. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). In fact, the "deadlocked" jury is the classic example of "manifest necessity." Rogers v. United States, 609 F.2d 1315, 1317 (9th Cir.1979); Arnold v. McCarthy, 566 F.2d 1377, 1386 (9th Cir.1978). Moreover, the jury's own statement that it is unable to reach a verdict is the most critical factor. United States v. Cawley, 630 F.2d at 1349; United States v. See, 505 F.2d at 851. Finally, the trial judge's decision to declare a mistrial because of jury deadlock "is accorded great deference by a reviewing court, because the trial judge is in the best position to assess the relevant facts." United States v. Cawley, 630 F.2d at 1348. Arizona v. Washington, 434 U.S. at 509-10, 98 S.Ct. at 832; United States v. Armstrong, 654 F.2d 1328, 1333 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 315 and 455 U.S. 926 (1982).

Although the jury is obligated to decide the case solely on the evidence, it became apparent to the court upon receipt of the second jury note that one of its members steadfastly declined to attend to that duty. Agreement by the jury as to a verdict was not possible because "religious inspiration" prevented one juror from considering the evidence at all. To question the jurors individually on the possibility that the peculiar deadlock could be overcome by further deliberation would have been futile in this case and potentially coercive, thus denying both the government and appellants a fair and impartial jury. The Allen charge had been read to the jury the day before the second note was received. The court was simply presented here with no other reasonable alternative but to declare a mistrial. Where a juror has admittedly decided not to consider the evidence, and approximately fourteen hours of deliberation in a three and a half day trial of relative simplicity has not proved to be otherwise persuasive, the requisite "manifest necessity" exists to declare a mistrial.

We are mindful that the court must not ignore the defendant's interest in having the trial concluded in a single proceeding. But the court must in turn be careful not to attempt to extract a verdict from the jury by unacceptably coercive means. We are satisfied that the District Court exercised sound discretion in declaring a mistrial in this matter. Appellants' retrial did not violate the Double Jeopardy Clause.

II. WARRANTLESS SEARCH

In pretrial motions, the appellants sought to suppress evidence seized during the warrantless search of their relatives' residence following their arrest in the home. The District Court denied the motions.

Appellants contend the agent's warrantless forcible entry into the house where they were visiting ² violated the Fourth Amendment. Appellants further argue that the subsequent consent search which led to the seizure of several items pertaining to the robbery was tainted by that illegality. The facts presented by the government during the proceedings as justification for the search are as follows.

In the early afternoon on June 15, 1981, the Desert Schools Federal Credit Union in Phoenix was robbed at gun point by a black male wearing a green jogging suit and a stocking mask through which a thin mustache could be seen. While the robbery was taking place inside of the credit union, a light colored Cadillac sat outside facing the wrong way in the entrance to the parking lot with its motor running. A witness in the parking lot happened to observe the Cadillac and noted the license plate number. The witness additionally noted that the black woman driver of the Cadillac wore a distinctive diamond ring and had a small child with her in the car. In the ensuing moments, the bandit was seen fleeing from the credit union office in the direction of the waiting Cadillac.

Minutes after the robbery a special agent of the FBI, Stephen Chenoweth, began investigating the incident. The Cadillac and license number reported by the witness were familiar to Agent Chenoweth. At the time the vehicle was thought to be associated with a known bank robber named Robertson, considered to be the leader of a group of men involved in several San Diego area armed bank robberies, and possibly a robbery of the very same Phoenix credit union a month earlier. Initially, his investigation led Agent Chenoweth to Robertson's house where the car was previously seen parked, but Robertson had moved.

The investigation next led to the Tempe residence of the registered owner of the Cadillac. Agent Chenoweth was told by the registered owner's husband in an...