United States v. Mitchell, CR-83-0130 MHP.

• Decision Date: 04 October 1983
• Docket Number: No. CR-83-0130 MHP.,CR-83-0130 MHP.
• Citation: 572 F. Supp. 709
• Parties: UNITED STATES of America, Plaintiff, v. Felix Wayne MITCHELL, Nathan Charles Lewis, Morris McClendon, Marcus Wayne Edmundson, Alvin Gay, Donald Grogans, Randy Lamont Brown, a/k/a Randy Lamont Patterson, Billy Ray Brown, and Tony Louvell Burton, Defendants.
• Court: U.S. District Court — Northern District of California

572 F. Supp. 709

UNITED STATES of America, Plaintiff, v. Felix Wayne MITCHELL, Nathan Charles Lewis, Morris McClendon, Marcus Wayne Edmundson, Alvin Gay, Donald Grogans, Randy Lamont Brown, a/k/a Randy Lamont Patterson, Billy Ray Brown, and Tony Louvell Burton, Defendants.

No. CR-83-0130 MHP.

United States District Court, N.D. California.

October 4, 1983.

Charles B. Burch, Joseph Burton, Michael D. Howard, George Niespolo, Asst. U.S. Attys., San Francisco, Cal., for plaintiff.

Robert Lyons, Hayward, Cal., Penelope Cooper, Berkeley, Cal., Richard Mazer, Gilbert Eisenberg, Filippelli & Eisenberg, San Francisco, Cal., Marcus Topel, Topel & Goodman, San Francisco, Cal., Paul D. Wolf, Oakland, Cal., John L. Williams, Jr., San Jose, Cal., William Osterhoudt, Colleen Rohan, Hallinan, Osterhoudt & Poplack, San Francisco, Cal., for defendants.

ORDER

WEIGEL, District Judge.

On February 18, 1983, a Grand Jury of this Court returned an indictment against Felix Wayne Mitchell and eight other individuals. Defendants were charged with various offenses, including conspiracy to distribute heroin in violation of 21 U.S.C. § 846. On June 13, 1983, trial commenced before the Honorable William H. Orrick, Jr. Before and during trial, Mitchell was represented by Arlene West, who was designated as "lead counsel" for defendants. On July 6, 1983, the trial ended when defendants' motion for mistrial was granted under circumstances below set forth. Now before the Court are two motions, filed on behalf of all defendants, for (1) dismissal of the indictment due to alleged prosecutorial misconduct and (2) dismissal because retrial would violate the fifth amendment guarantee against double jeopardy.¹

A. Background.

The defense motions are based on events leading up to the mistrial motion involving two Government witnesses and one prospective Government witness: Frederick Sanders, Norbett Bluitt, and Leslie Brigham. The Court now considers the pertinent events as to each.

1. Frederick Sanders

On June 20, 1983, trial testimony began with Sanders's direct examination by the Government. Cross-examination started the next day. In the morning of June 23, 1983, Arlene West cross-examined Sanders as to whether he had discussed his testimony with any of the prosecutors prior to trial. Sanders said he had not. During the noon recess, West asked Assistant United States Attorney Joseph M. Burton, who was trying the case for the Government, whether he had prepared Sanders before trial. Burton replied in the affirmative. West did not pursue the matter further in her cross-examination of Sanders. After West finished with the witness, Gilbert Eisenberg, attorney for defendant Donald Grogans, cross-examined Sanders. In response to pertinent questioning, Sanders again denied he had been prepared prior to trial.

On redirect, Burton did not ask Sanders about his pretrial preparation nor indicate in any way to the court or jury that Sanders had perjured himself.²

After Sanders was excused, the defense moved to strike Sanders's testimony, or for dismissal of the case, or for mistrial. The mistrial motion was subsequently withdrawn. On June 29, 1983, the court denied the motions to strike or for dismissal and also denied another defense motion to compel testimony from Burton. To settle the Sanders controversy, the court ordered the Government to make a statement to the jury about the nature and extent of Sanders's pretrial preparation, and granted defendants an additional opportunity after the statement to cross-examine the witness. Burton announced to the jury that he had conferred with Sanders for 18 to 20 hours before trial and that Assistant United States Attorney Michael Howard and Department of Justice Special Attorney George Niespolo had also met with Sanders for an unspecified period of time. On further cross-examination, Sanders testified that the Government had prepared him for at least 40 hours. At the close of Sanders's cross-examination, the court again denied a defense motion to strike Sanders's testimony.

2. Norbett Bluitt

On April 14, 1983, the Government interviewed Leslie Brigham, a friend of Bluitt. Brigham indicated that West had represented Bluitt in the past. On June 1, 1983, Niespolo met with Bluitt, who stated he wanted to cooperate with the Government in this case. Bluitt also informed Niespolo that he had been represented by West. The Government asserts that it made its final decision to use Bluitt as a witness on or about June 9, 1983.

On June 24 and 25, 1983, after trial had begun, Burton, Niespolo, and F.B.I. Special Agent John Steiner met with Bluitt. Bluitt told them that it was Mitchell who had first put him in contact with West after Bluitt was charged with state assault, cocaine, and other offenses. West represented Bluitt from sometime in January or February, 1982 until May 17, 1983.

On June 30, 1983, the Government first disclosed to the defense that Bluitt would be called as a witness. The same day, West orally indicated to the court that her previous representation of Bluitt raised a conflict of interest with respect to her representation of Mitchell. On July 1, 1983, West notified the court in writing that, should Bluitt testify, she might be forced to impeach him. West asserted that Bluitt's testimony would severely prejudice both Mitchell and herself.³

Consequently, defendants moved for dismissal, or for preclusion of Bluitt's testimony, or for mistrial, or for severance of Mitchell's trial from that of the other defendants.⁴ On July 6, 1983, the court, after denying the dismissal motion, took an in camera offer of proof from defendants as to the areas in which West might impeach Bluitt, should she choose to take the stand. The court thereafter heard from the Government in camera. Proceedings subsequently reconvened in open court, and the court ruled that Bluitt could testify. However, the court barred him from testifying as to anything about which, based on its in camera review, the court concluded that West could impeach him. The court also denied the motion for severance and rejected a defense request that West be permitted to withdraw as counsel for Mitchell.

Defendants then renewed their motion for mistrial. The motion, unopposed by the Government, was granted.

3. Leslie Brigham

On April 14, 1983, Niespolo and I.R.S. Special Agent Michael Salmonson met with Brigham at his request. Brigham was then imprisoned in Oakland. Brigham discussed his contacts with Mitchell and other codefendants. As noted earlier, Brigham also stated that West had represented Bluitt.

On April 17, 1983, West visited Brigham in the Oakland City Jail. She signed in as Brigham's attorney. West claims that she saw Brigham to discuss her representation of him in matters pending in Oakland Municipal Court. The same day, Niespolo and an Alameda County official conferred with Brigham, who indicated that he had conversed with West before they arrived. On April 18, 1983, the Government decided that Brigham would be used as a "supplemental witness at trial (Declaration of Joseph M. Burton In Support of Plaintiff's Opposition To Motion To Dismiss Indictment at 10). The Government also decided that Brigham should be placed in the Witness Protection Program. Accordingly, Brigham and his fiancee were transported to a safe location outside of Oakland.

Shortly thereafter, the two disappeared. On April 20, 1983, a material witness warrant was issued for Brigham. On May 10, 1983, he was apprehended in Oakland pursuant to the warrant. On May 17, 1983, Brigham's attorneys moved for his release. On May 19, 1983, the Government, in opposition to the motion, filed the declaration of F.B.I. Special Agent John Steiner ("Steiner Affidavit") in camera with the court. The Affidavit describes April 17, 1983 discussions between West and Brigham in which West attempted to persuade Brigham not to testify in this case. The Affidavit also states that West tried to obstruct justice by passing a note from Mitchell to Brigham, advising the latter not to cooperate with the Government. The court declined to unseal the Steiner Affidavit and to inform defendants of its contents. Not until August 2, 1983, upon the Government's filing of affidavits from Burton and Niespolo in opposition to the instant motion, did defendants become aware of the substance of the allegations against West contained in the in camera submission.⁵

B. Findings of Fact and Conclusions on Defendants' Motions.

1. Motion to Dismiss for Prosecutorial Misconduct.

Defendants assert that the Government's conduct in connection with Sanders, Bluitt, and Brigham was so outrageous, as a matter of objective fact, that dismissal of the indictment is mandated as an exercise of the Court's "supervisory powers." While the defendants originally requested an evidentiary hearing before disposing of the motion, they have now stipulated with the Government that all facts relevant to the claim of prosecutorial misconduct are already evident from the record.

The Court may invoke its inherent supervisory powers to dismiss an indictment due to Government misconduct. United States v. Ramirez, 710 F.2d 535 at 541 (9th Cir.1983); United States v. Owen, 580 F.2d 365, 367 (9th Cir.1978). However, use of such powers is a harsh sanction, "frequently discussed but rarely invoked." United States v. Samango, 607 F.2d 877, 881 (9th Cir.1979); see also United States v. Owen, 580 F.2d at 367. Supervisory powers are to be employed against only the most flagrant and outrageous misconduct. See United States v. Rasheed, 663 F.2d 843, 853 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982); see also United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.1977).

Consequently, a court may not dismiss an indictment unless there is a "clear basis in law and fact" for such action. Ramirez, 710 F.2d at 541; United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 825, 98...