U.S. v. Simpson, 95-3048

Decision Date19 August 1996
Docket NumberNo. 95-3048,95-3048
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marlin A. SIMPSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Submitted on the briefs: *

Randall K. Rathbun, United States Attorney, David M. Lind, Assistant United States Attorney, Office of the United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Michael Gordon Katz, Federal Public Defender, James P. Moran, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Before BALDOCK, BRORBY and EBEL, Circuit Judges.

EBEL, Circuit Judge.

After the jury was unable to reach a verdict in his first trial, Marlin Simpson was convicted on retrial of possession with intent to distribute crack cocaine and of using or carrying a firearm during and in relation to a drug trafficking offense. Simpson appeals, claiming: (1) because there was no manifest necessity for the first mistrial, his retrial was barred by the Double Jeopardy Clause; and (2) the evidence was insufficient to support his conviction on either count. Simpson also challenges the use of a prior battery conviction in his sentencing calculation on the ground that the government failed to provide sufficient evidence of the validity of that conviction.

I.

Officers of the Wichita Police Department, acting on information from a confidential informant, obtained a search warrant for a residence located at 2350 North Erie in Wichita. The residence was listed in the city directory as belonging to Marlin Simpson and his grandmother, Hazel Simpson.

Prior to executing the warrant, officers surveyed the residence and observed various people arrive, stay inside for one to five minutes, and then leave. Officers then observed Simpson exit the residence and climb into the passenger side of a Chevy Nova. The stream of visitors at the residence ceased when Simpson left. As Simpson left the residence, he was carrying a handgun, which he appeared to place under the passenger side front seat. When officers stopped Simpson a short distance away, he was riding in a second Chevy Nova being towed by the first Chevy Nova that he had been observed entering. A loaded Glock 9mm handgun was under the front seat of the vehicle in which Simpson was riding, and he had a pager on his person. No drugs were found in the car or on Simpson's person.

When the warrant was executed at 2350 North Erie, a detective searched the room that Simpson's grandmother identified as Simpson's bedroom. The detective found: crack cocaine, including eight one-ounce bags of crack in a Redskins jacket in the closet; scales, baking soda, which is often used to cook cocaine into crack, and other drug paraphernalia; $480 in cash; and ammunition. The detective also discovered photographs of Simpson and Simpson's girlfriend, and mail addressed to Simpson at that address. After searching the house, police searched five people they found inside. Simpson's uncle, Ronald Simpson, was found with approximately 26 grams of crack cocaine on his person.

Simpson was charged in a superseding indictment with conspiring with Ronald Simpson to distribute crack cocaine in violation of 21 U.S.C. § 846, possessing with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1), and using or carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). The conspiracy charge subsequently was dismissed. Simpson's first trial ended in a mistrial after the judge determined that the jury could not reach a verdict. At Simpson's second trial, the defense offered evidence that for six months preceding the execution of the search warrant Simpson had not been living at the North Erie address but had been living elsewhere with a cousin. Simpson claimed he had used the North Erie address only as a mailing address. The jury convicted Simpson of both counts, and Simpson appeals.

II.

Simpson first claims that his retrial subjected him to double jeopardy. When a mistrial is declared without the defendant's consent, the Double Jeopardy Clause of the Fifth Amendment bars the retrial of the defendant unless there was "manifest necessity" for the mistrial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). A finding of manifest necessity is within the sound discretion of the trial court. United States v. Crotwell, 896 F.2d 437, 440 (10th Cir.1990).

The events leading up to Simpson's mistrial were as follows: Simpson's trial began on the morning of September 13, 1994, and the case was submitted to the jury at 11:30 a.m. on September 14. Between 4:45 and 5:00 p.m. on September 14, the jury sent two questions to the trial judge, who responded in open court. The following portions of his response are relevant:

I will take your second question first: "Can we have a verdict on one count and not on the second?" Yes, you can have a verdict, as the instructions told you....

The second question where you said, "We are hung up. What do we do from this point?"...

I think I'll excuse you for the evening and ask you to come back and continue your deliberations[,] ... and then if you cannot arrive at a verdict on all of the counts or on one of the counts--I take it your question was on one count and not on two counts. I don't know what, but you can come in with a verdict on the one count of the indictment. I commend you to look at Instruction 26 [the elements of the 924(c) charge] in connection with your coming in with a verdict. Remember that in order to sustain his [sic] burden of proof for a charge of using or carrying a firearm during and in relation to a drug trafficking crime as charged in Count 2 in the indictment, the government must prove the following two essential elements beyond a reasonable doubt: First, that ... the defendant committed or aided and abetted in the commission of a drug trafficking crime charged in Count 1 of the indictment. So, in order to--in coming in with a verdict, you could not come in with a verdict on Count 2 alone. Your verdict would have to be on Count 1, and then if you think that the use of the weapon was in connection with that, then you can find a verdict on Count 2.

(emphasis added). Before excusing the jury, the judge asked counsel if they had any objections to his remarks, and both counsel replied that they did not.

The jury resumed deliberations at 9:00 a.m. the next morning. At 10:35, in response to further communication from the foreman indicating that the jury still was having difficulty reaching a verdict, the judge summoned the jury into the courtroom. After some discussion, the judge asked the foreman: "[Do] you think there is any reasonable belief that by further consideration of the evidence by the jury you can reach a verdict, or are you hopelessly deadlocked?" The foreman responded, "Hopelessly deadlocked, Your Honor." The court declared a mistrial. There was no objection by the defendant at any time during the exchange, including after the jury was discharged and the judge set the case for retrial.

"It has been established for 160 years ... that a failure of the jury to agree on a verdict was an instance of 'manifest necessity' which permitted a trial judge to terminate the first trial and retry the defendant." Richardson v. United States, 468 U.S. 317, 323-24, 104 S.Ct. 3081, 3085, 82 L.Ed.2d 242 (1984). Indeed, such a situation has been "long considered the classic basis for a proper mistrial," removing any double jeopardy bar to retrial. Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832. Simpson argues, however, that the trial judge did not take adequate steps to ascertain that the jury was in fact deadlocked. He notes that the jury had been deliberating for only six to seven hours, that the court failed explicitly to consider alternatives to a mistrial, and that the court did not provide the parties with a hearing on the necessity of a mistrial.

We accord the "highest degree of respect" to a trial judge's finding of manifest necessity based on a hung jury. Crotwell, 896 F.2d at 440 (quoting Arizona v. Washington, 434 U.S. at 510-11, 98 S.Ct. at 833). A trial judge is not required to make an explicit finding of manifest necessity so long as adequate justification is apparent from the record. See Arizona v. Washington, 434 U.S. at 516-17, 98 S.Ct. at 835-36. We find such justification apparent here. Simpson's trial lasted only a day and a half. When the mistrial was declared, the jury had been deliberating nearly that long, and had repeatedly indicated to the court that it was unable to reach a verdict. The trial judge asked the foreman whether further deliberations would be helpful, and the foreman replied that the jury was "hopelessly deadlocked." Under these circumstances, the trial judge did not abuse his discretion in declaring a mistrial.

Simpson further argues that even if the jury was deadlocked, the impasse was caused by the trial judge's error, and mistrial therefore was improper. Simpson alleges that the judge's statement to the jury that it could not convict on the firearm count unless it convicted on the drug count was inconsistent with our language in United States v. Hill, 971 F.2d 1461, 1464 (10th Cir.1992), where we said that "[w]hile proof of the underlying crime is necessary to convict under § 924(c), a defendant need not be convicted of the underlying crime in order to be convicted of § 924(c)."

We question Simpson's premise that the jury deadlock was caused by trial judge error. 1 Even if we were to accept that premise, however, we would find no merit to Simpson's argument. "[T]he double jeopardy clause does not require 'manifest necessity' for the events that triggered the mistrial; manifest necessity for the mistrial itself will ordinarily permit a second trial." United States v. Buljubasic, 808 F.2d 1260, 1265 (7th Cir.) (rejecting defendant's claim that because manifest...

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