U.S. v. Seley

• Decision Date: 25 February 1992
• Docket Number: No. 91-10211,91-10211
• Citation: 957 F.2d 717
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John Allen SELEY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 717

957 F.2d 717

UNITED STATES of America, Plaintiff-Appellant, v. John Allen SELEY, Defendant-Appellee.

No. 91-10211.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 13, 1992.

Decided Feb. 25, 1992.

Patty M. Stemler, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Donn S. Alpert, Tucson, Ariz., for defendant-appellee.

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

Before GOODWIN, FLETCHER and BRUNETTI, Circuit Judges.

FLETCHER, Circuit Judge:

John Allen Seley was indicted on three counts: possession of marijuana with intent to distribute, importation of marijuana, and conspiracy to import marijuana. A jury acquitted Seley on the first two counts, but hung on the conspiracy count. Following trial, the district court ruled that on retrial of the conspiracy charge, evidence relating to the possession and importation charges would be barred by collateral estoppel, and that without such evidence, the charge of conspiracy must be dismissed. The government appeals the suppression order and the dismissal. The government does not contest the dismissal if the suppression order is upheld.

We affirm.

FACTS

Seley is an American citizen whose principal residence is the town of La Penita in Nayarit province, Mexico. (La Penita lies some 1200 miles south of the border.) While on an extended visit to Lake City, Colorado, Seley met Richard Landry in August of 1990. On October 10, Seley and his wife Lourdes (a Mexican citizen) drove in their van to Mexico, accompanied by Landry and Seley's brother-in-law, traveling in Landry's pickup truck pulling a pop-up camping trailer. The four of them entered Mexico on October 13. The next day, Seley's van was totalled in an auto accident in Hermosillo, Mexico. Because he did not have Mexican insurance, he was imprisoned for 32 days. Landry returned to Colorado during this time, but returned to Mexico with his girlfriend Taria McClelland shortly before Seley's release. The four--Seley, Lourdes, Landry and McClelland--then travelled to La Penita, where they stayed for several weeks. On December 5, Landry drove them to the Nogales, Arizona border crossing in Landry's truck. A search of the trailer disclosed 95 pounds of marijuana packed inside two large propane tanks. (Validity of the search was not disputed.) Seley and Landry were arrested and charged with violations of 21 U.S.C. § 841(a)(1) (possession of marijuana with intent to distribute), 21 U.S.C. § 952(a) (importation of marijuana) and 21 U.S.C. § 963 (conspiracy to import marijuana). Landry entered into a plea bargain and was the chief witness against Seley at trial.

While the preceding facts were not contested, almost everything else was. Landry's testimony, which follows, painted Seley as the ringleader. Shortly after they met in Colorado, Landry told Seley about his money problems arising from a paternity suit. In response, Seley suggested that Landry join Seley's scheme to smuggle marijuana. Hiding the marijuana inside propane tanks was Seley's idea. Landry bought the trailer, and Seley bought the tanks and the necessary welding equipment. When Seley was imprisoned in Mexico, Landry returned to the United States, talked his father into giving him $36,000 for child support payments, and used some of that money to get Seley out of jail. They then travelled to La Penita, bought the marijuana and packed it into the tanks together. When they were caught at the border, Seley tried to talk Landry into taking the rap for both of them.

Seley's testimony differed at every turn. He claimed that in Colorado, Landry asked if he could join Seley's planned trip to Mexico for company. Seley denied buying the propane tanks and welding equipment. ¹

                Lourdes Seley, not Landry, got the money to free Seley from the Mexican prison.   While in La Penita, Landry and McClelland were largely left to their own devices, spending little time with the Seleys.   Seley insists that he never knew there was anything in the tanks other than propane, and only found out about the marijuana after Landry sighed, "Busted in Nogales!" as the border agents searched the trailer.   The agents confirmed that Seley denied all knowledge of the marijuana at the time of his arrest and afterward
                

On March 21, 1991, following a two-day trial, the jury acquitted Seley on the two substantive counts, but could not reach a verdict on the conspiracy count. After discharging the jury, the district court asked that counsel appear the next morning to argue whether Seley could be tried for conspiring to commit an offense the jury had acquitted him of. During that argument, the parties agreed with the court that evidence of the conspiracy as it developed in Colorado would be admissible in a future conspiracy trial. Thinking out loud, the court said:

[C]ertainly anything pertaining to the entrance of the vehicle or the marijuana into the United States would be barred by collateral estoppel in a future trial. At what point between Colorado and crossing the border, there is a cut off in--in the evidence you would be allowed to produce--I have not shaken it down to that degree of certainty. So that's what is bothering me.

The Court also wondered

where the Government's going to end. The jury is going to say, "What happened after that?" And we're going to say "Nothing." I mean, I think the Government's got a lousy case.

The U.S. Attorney agreed that if "the Government ends up being unable to bring on the facts of ... the marijuana being in the vehicle--in the container at all--we may have a factual problem that we can't overcome." Later in the day, the district court issued the following order:

The Court ha[s] determined that any evidence regarding the purchase, packaging, transportation or importation of marijuana pertaining to or in furtherance of the conspiracy charge in Count 3 herein is inadmissible on the retrial of the conspiracy charge. Having so determined, the Court is of the opinion that no rational jury could conclude the defendant was guilty on the conspiracy count.

Accordingly, this case is dismissed with prejudice, and

IT IS ORDERED that the defendant be released from custody forthwith.

The government now appeals the decision to suppress evidence based on collateral estoppel, and the resulting decision to dismiss the conspiracy charge.

JURISDICTION

The district court's jurisdiction derived from 18 U.S.C. § 3231 (offenses against the laws of the United States). This court has jurisdiction pursuant to 18 U.S.C. § 3731.

Section 3731 permits the government to appeal suppression orders so long as the appeal is "not made after the defendant has been put in jeopardy and before the verdict." Jeopardy does not attach in the second trial until the jury is empaneled; there has never been a verdict on the conspiracy charge. Therefore, the suppression order is appealable. See United States v. Layton, 720 F.2d 548, 554 (9th Cir.1983) (finding appellate jurisdiction to review suppression order entered before retrial after first trial ended with hung jury), cert. denied 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984).

Section 3731 precludes us from exercising jurisdiction over a government appeal of a dismissal "where the double jeopardy clause of the United States Constitution prohibits further prosecution." As a general principle, retrials following hung juries do not cause double jeopardy Seley's second argument relies on the Supreme Court's recent elaboration of the double jeopardy clause in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Defendant Corbin was a drunk driver who swerved across the median at a reckless speed, killing the driver and wounding the passenger of another car. Corbin pled guilty to two misdemeanor traffic offenses. He was later indicted for vehicular homicide and reckless assault. The Supreme Court held that the later prosecution subjected him to double jeopardy. Even though the elements of the offenses were distinct under the "elements test" announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)--death was an element of homicide but not of the traffic offenses, and reckless driving was an element of the traffic offenses but not of homicide--the second prosecution was barred because "the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 110 S.Ct. at 2093. Seley argues that the retrial on conspiracy would require proof of conduct for which he has already been tried, and is therefore barred by Grady.

                because the failure of the jury to reach a verdict means that jeopardy has not yet terminated.  Richardson v. United States, 468 U.S. 317, 324-25, 104 S.Ct. 3081, 3085-86, 82 L.Ed.2d 242 (1984);  Layton, 720 F.2d at 554.   Seley makes two arguments that retrial in his case would subject him to double jeopardy.   The first requires that we characterize the district court's order as a "judgment of acquittal" under Fed.R.Crim.P. 29(c).   This ignores the plain language of the order, which was clearly framed as a dismissal, not an acquittal.   The district court had the authority under Rule 29(c) to enter an acquittal, but did not do so
                

This argument ignores the fact that Grady was explicitly concerned with the dangers of successive prosecutions based on the same facts or conduct. See Grady, 110 S.Ct. at 2091-2093. The charges against Seley were brought in one indictment. The government does not seek retrial to gain unfair advantage; the need for retrial arose solely from the jury's hanging on one count. Grady could not control in this situation without our rejecting the reasoning of Richardson, which permits retrials after hung juries because jeopardy has not terminated. By definition, such a retrial is a continuation of a single prosecution, not a successive prosecutio...