U.S. v. Tafoya

• Decision Date: 24 February 2009
• Docket Number: No. 08-2113.,08-2113.
• Citation: 557 F.3d 1121
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred R. TAFOYA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

557 F.3d 1121

UNITED STATES of America, Plaintiff-Appellee, v. Alfred R. TAFOYA, Defendant-Appellant.

No. 08-2113.

United States Court of Appeals, Tenth Circuit.

February 24, 2009.

David Williams, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Scott Davidson, Albuquerque, NM, for Defendant-Appellant.

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

In early 2008, Defendant Alfred R. Tafoya was on trial for one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See 1 R. Docs. 2, 54. During direct examination of its third witness, the government elicited testimony that was beyond the scope permitted by the district judge. See 1 R. Doc. 124. Mr. Tafoya immediately moved for a mistrial, which was granted. Mr. Tafoya subsequently moved to dismiss the charge, contending that the Double Jeopardy Clause barred retrial because the prosecutor had goaded defense counsel into requesting a mistrial. 1 R. Doc. 146. After a hearing, the court denied Mr. Tafoya's motion to dismiss, holding that the government did not intend to provoke a mistrial, and therefore retrial was not barred by the Double Jeopardy Clause. 1 R. Doc. 165 at 115. This interlocutory appeal followed. Our jurisdiction arises under the collateral order doctrine. See Abney v. United States, 431 U.S. 651, 659-60, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Musson, 802 F.2d 384, 385 (10th Cir.1986); see also 28 U.S.C. § 1291. We AFFIRM.

Background

Because this case comes to us as an interlocutory matter, we discuss only the testimony and proceedings necessary to this appeal.

On April 10, 2007, Defendant Alfred R. Tafoya was indicted on one count of being a felon in possession of a firearm on January 14, 2007, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 1 R. Doc. 2. After various motions and a hearing on those motions, a superseding indictment was filed on December 5, 2007, extending the date of the original indictment to include January 15, 2007, and adding a second count of being a felon in possession of body armor on February 13, 2007, in violation of 18 U.S.C. §§ 931(a)(1) and 924(a)(7). 1 R. Doc. 54. The district court granted Mr. Tafoya's motion for severance of the counts, and trial commenced on the firearm charge on February 19, 2008. See 1 R. Doc. 165 at 95-96.

Prior to trial, to avoid unfair prejudice and confusion of the issues, the district court issued an order limiting evidence concerning the events of January 15, 2007. 1 R. Doc. 124 at 47-48 (indicating that Mr. Tafoya was not on trial for any other acts, other than illegally possessing a firearm, that might have been committed on January 15); 1 R. Doc. 136 at 63-64. The order required the government to call Mr. Robert Walker as its first witness to testify to the events of January 15, and limited his testimony to "his observations regarding Defendant's possession of the shotgun and the background information necessary to place those observations in context." 1 R. Doc. 124 at 47. The government would only be permitted to elicit testimony from other witnesses about the events of January 15 after Mr. Walker's cross-examination was completed, and "only as necessary to clarify specific matters raised during Mr Walker's testimony as it relate[d] to Defendant's alleged possession of the shotgun." 1 R. Doc. 124 at 48. Furthermore, the court indicated that it would instruct the jury "as to the limited purposes for which the jurors may consider the events of January 15, 2007," in order to make clear that the January 15 evidence was "to be considered only for the limited purpose of determining whether Defendant knowingly possessed the shotgun on that occasion." 1 R. Doc. 124 at 48. Finally, in the event that Mr. Tafoya's counsel raised additional issues on cross-examination that called for rebuttal, the government was instructed to "alert the Court of the proposed scope of such rebuttal outside the jury's presence before proceeding any further, in order to allow for a timely objection by opposing counsel and an informed ruling by the Court." 1 R. Doc. 124 at 48. In issuing the order, the court was attempting to avoid the introduction of evidence about events other than Mr. Tafoya's alleged possession of a weapon, including his possible forcible entry into Ms. Darlene Eller's home and his forcible detention of witnesses in the early morning hours of January 15, 2007. 1 R. Doc. 124 at 47. Such evidence was deemed to be unfairly prejudicial to Mr. Tafoya, and the court issued explicit instructions in its order on how counsel were to deal with the court's evidentiary limitations. 1 R. Doc. 124 at 47-49.

During trial, Ms. Susan Lopez, Mr. Walker, and Valencia County Sergeant Simon Martinez testified to the events that unfolded on the night of January 14, 2007, and the early morning hours of January 15, 2007. After examining Sergeant Martinez about Mr. Tafoya's initial departure from the home on the night of January 14, the prosecutor then asked an open-ended question, "What happened after that?" 2 R. Doc. 145 at 140. Sergeant Martinez answered, referring to Mr. Tafoya's return to the home with the three other men in the early hours of January 15, "Probably a good 45 minutes later, dispatch dispatched us back out there and advised us that the bondsmen were back, and that this time, they were battering some of the residents." 2 R. Doc. 154 at 140. Upon hearing this response, Mr. Tafoya moved for a mistrial, arguing that the prosecutor had elicited the prejudicial information the court had wanted excluded. 2 R. Doc. 154 at 140-41. After allowing the parties to discuss the matter at length, the district court granted Mr. Tafoya's motion on the basis that a limiting instruction could not cure the prejudice arising from Sergeant Martinez's response to the government's open-ended question. 2 R. Doc. 154 at 140-58; see also 1 R. Doc. 136 at 59 (district court order granting mistrial, noting that "counsel for the Government elicited inadmissible testimony from a witness"). The district court then scheduled a status conference to determine whether the case would be retried. 1 R. Doc. 136 at 69.

On March 29, 2008, Mr. Tafoya filed a motion to dismiss the firearm possession charge in the superseding indictment because retrial would violate the Double Jeopardy Clause. 1 R. Doc. 146 at 71. On April 30, 2008, the district court held a hearing on the motion. 2 R. Doc. 166. At the hearing, Mr. Tafoya's counsel requested to take sworn testimony from the assistant United States attorney (AUSA) who had argued the case originally and whose question triggered the mistrial. 2 R. Doc. 166 at 189, 199-200. The district court opted instead to conduct the hearing without swearing in the AUSA, remarking that he is "an officer of the Court." 2 R. Doc. 166 at 167. The district court then proceeded to ask the AUSA a series of questions about his trial preparation, his response to Mr. Tafoya's motion to dismiss, its prior limiting order and instructions, and his intent in calling Sergeant Martinez as a witness, among other issues. 2 R Doc. 166 at 167-80. In response, counsel indicated that he did prepare the witness and "[s]ometimes we get exactly what we think they're going to say and sometimes we don't. And that's what happened in this case." 2 R. Doc. 166 at 178. In retrospect, he conceded that it was "an inartful question" given the district court's limitations, 2 R. Doc. 166 at 179, that he "shouldn't have asked that question," 2 R. Doc. 166 at 172, 178, and that he "did not do a good job" of conveying the testimony limitations to Sergeant Martinez, 2 R. Doc. 166 at 194. In response to Mr. Tafoya's counsel's request, the district judge also inquired about his legal experience. 2 R. Doc. 166 at 191-92. Counsel responded with his background as a trial attorney in various city, state, and federal positions, and acknowledged that this was his first trial as an AUSA.¹ 2 R. Doc. 166 at 192-93.

Citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), United States v. Gonzalez, 248 F.3d 1201 (10th Cir.2001), and cases from other circuits, including United States v. Hagege, 437 F.3d 943 (9th Cir.2006), 2 R. Doc. 166 at 196-97, the district court determined, under the approach established by these cases, that an evidentiary hearing was unnecessary and that the AUSA's conduct, while perhaps negligent, was not sufficient to justify dismissing the indictment, 2 R. Doc. 166 at 198. Moreover, the district court found that it was not his "intent to goad the defendant into moving for a mistrial." 2 R. Doc. 166 at 198-99.

On May 2, 2008, the district judge memorialized its determination in a lengthy order. 1 R. Doc. 165. In that order, the district court decided that Mr. Tafoya had presented a colorable double jeopardy claim. 1 R. Doc. 165 at 109. However, after reviewing the various setbacks suffered by the prosecution in the previous trial and the facts in the prosecution's favor, 1 R. Doc. 165 at 110-13, the district court found that the case did "not fall within the narrow exception under which the retrial of a criminal defendant who has successfully moved for a mistrial is barred by the Double Jeopardy Clause," 1 R. Doc. 165 at 113. Therefore, the district court denied Mr. Tafoya's motion to dismiss the possession charge in the superseding indictment. 1 R. Doc. 165 at 115. Mr. Tafoya filed a notice of appeal on May 7, 2008. 1 R. Doc. 167.

Discussion

Mr. Tafoya argues that the district court erred in denying his motion to dismiss the superseding indictment. On appeal he argues that the district court erred in (1) finding that the AUSA did not intentionally goad Mr. Tafoya into moving for a mistrial, (2) preventing Mr. Tafoya from questioning the AUSA under oath at the evidentiary hearing, and (3) applying an...