USA v. Cornelius
| Decision Date | 15 October 2010 |
| Docket Number | No. 09-2584.,09-2584. |
| Citation | 623 F.3d 486 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael CORNELIUS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Michelle L. Jacobs (argued), Jonathan H. Koenig, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Thomas Edward Hayes (argued), Milwaukee, WI, for Defendant-Appellant.
Before WILLIAMS, SYKES, and TINDER, Circuit Judges.
In June 2005, Michael Cornelius was charged in Wisconsin state court with possession with intent to distribute a controlled substance. Two speedy trial demands and seven scheduled trial dates later, his state case was dismissed on October 16, 2006. The very next day, Cornelius was indicted federally for possession with intent to distribute more than five grams of crack cocaine, beginning his odyssey through the federal system. On March 11, 2009, after more delays and two more mistrials, Cornelius moved to dismiss his indictment on Speedy Trial Act, 18 U.S.C. § 3161 et seq., constitutional speedy trial, and double jeopardy grounds. His speedy trial-based claims were premised on the lengthy delays in the government's prosecution of the case against him. His double jeopardy claim asserted that during his second trial, the prosecutor had goaded him into moving for a mistrial in order to rescue a case that was going badly in order to get another shot at prosecuting him. The district court denied Cornelius's motion on constitutional speedy trial and double jeopardy grounds, but granted his motion under the Speedy Trial Act, dismissing the indictment without prejudice. Cornelius, who was reindicted on June 23, 2009, appeals all three aspects of the district court's ruling. He appeals the denial of his motion to dismiss on double jeopardy and constitutional speedy trial grounds, and appeals the dismissal on Speedy Trial Act grounds, arguing that the dismissal should have been with prejudice, not without.
We conclude that we lack jurisdiction to hear Cornelius's appeal of the district court's speedy trial rulings at this juncture because his prosecution continues. We do have jurisdiction to hear his double jeopardy appeal, however, and we vacate the district court's ruling on that issue. We find that the district court erred by not holding an evidentiary hearing before making a determination as to whether the prosecutor intentionally tried to trigger a mistrial, and remand so that such a hearing can occur.
On June 22, 2005, Milwaukee police, acting on information from a confidential informant, arrested Cornelius, a Latin Kings gang member, after pulling over the car he was driving in a McDonald's parking lot. Police found a marijuana cigarette in the car's ashtray and approximately 6.67 grams of cocaine base in an area under the dashboard where Cornelius had been observed leaning forward as police approached. Also in the car was Cornelius's acquaintance, Baldomero Castillo, another Latin Kings gang member. Later that day, Castillo's residence was searched pursuant to a search warrant and additional cocaine was found. Police also found a firearm, a scale, marijuana, and gang paraphernalia on the premises. Cornelius was charged in Milwaukee County Circuit Court with possession of a controlled substance with intent to deliver. But after more than a year, two speedy trial motions and seven scheduled trial dates, his case was dismissed on October 16, 2006.
The next day, on October 17, 2006, Cornelius was indicted federally for the same conduct, along with Castillo. Count I of the indictment charged Cornelius with possession with intent to distribute more than five grams of crack cocaine (the cocaine found in the automobile), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Count II charged Castillo with the same offense, related to the drugs that had been found at the residence.
A jury trial began against both Cornelius and Castillo on July 30, 2007. On the second day, a mistrial was declared when a juror was observed dozing off during the proceedings. Trial was rescheduled for October. In the meantime, on August 7, 2007, the government filed a superseding indictment (the “First Superseding Indictment”). The First Superseding Indictment added a conspiracy charge against both men: the new Count I charged Cornelius and Castillo with conspiring to distribute and possess with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846. Count II charged them with possessing with intent to distribute five or more grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). 1
Cornelius and Castillo's second jury trial began on October 23, 2007. In order to implicate Cornelius on the new conspiracy charge, the government sought to introduce testimony from Hugo Delportillo, another member of the Latin Kings who supplied cocaine to Castillo. Delportillo would testify, as he had in the grand jury, that Castillo had told him that Cornelius had also supplied Castillo with cocaine. Castillo's statement, through Delportillo, was essentially the government's only evidence against Cornelius on the conspiracy charge-the government admitted that without it, the charge would not survive a Rule 29 motion to dismiss.
At trial, Cornelius informed the court that he intended to impeach Castillo's statement to Delportillo by introducing Castillo's prior convictions pursuant to Federal Rule of Evidence 806. 2 Castillo had already informed the court that he would not testify at trial, therefore his prior convictions would have been inadmissible. As a result, depending on how the court ruled, Delportillo's testimony would be prejudicial either to Castillo or to Cornelius. If the convictions were let in, Castillo would be prejudiced; if they were not allowed, Cornelius would be prejudiced by having been denied the ability to impeach the declarant. The district judge took the issue under advisement and indicated that it would render a decision before Delportillo actually testified. A jury was empaneled and sworn, and the trial commenced.
On the third day of trial, when it was time for Delportillo to take the stand, the district court revisited the issue and ruled that Delportillo could testify, but not as to anything that Castillo told him about Cornelius being a supplier of cocaine. A brief recess was taken, during which time the government represents that it explained the ruling to Delportillo. The jury was then brought in, Delportillo was sworn, and he began to give his testimony. Delportillo testified that he was a member of the Latin Kings and that he knew Castillo and Cornelius, both of whom he identified in the courtroom. He testified that he had supplied Castillo with cocaine on a number of occasions, stating that he provided him with “two ounces here and there.” The government pressed further on the topic, and the following exchange occurred:
Despite a question from the government that appeared likely to elicit a response from Delportillo about Cornelius being a source of supply to Castillo-testimony the court had prohibited-the district judge denied Cornelius's objection and request for a sidebar, and allowed questioning to continue. In so ruling, the district judge stated “I assume the prosecutor knows the question he is asking,” indicating that the court likely assumed that the government could not actually be seeking the prohibited answer from Delportillo. Questioning continued, and an exchange occurred that triggered yet another mistrial and set into motion the double jeopardy issue that is now before us:
(Emphasis added). The jury was excused, and the following discussion took place:
CORNELIUS'S COUNSEL: Judge, on behalf of Mr. Cornelius, I'm going to move this Court for a mistrial reserving my right to argue for dismissal. But I think at this point there-information that we went to what I consider to be extraordinary lengths to prevent the jury from hearing has been heard during the government's questioning of the witness Mr. Delportillo.
There has been no evidence of any conspiracy up to this point. The only source of Mr. Delportillo's knowledge that Mr. Cornelius supplied any drugs to Mr. Castillo as we went over ad nauseum was Mr. Castillo's purported statements to Mr. Delportillo.
I have been given no other information that would permit any other conclusion that that is the source of Mr. Delportillo's knowledge that Mike is Mr. Castillo's source for cocaine. And so we are left in the unenviable position and one that I tried to avoid with as much dispatch as I am capable of. And my efforts notwithstanding, this jury has been polluted with this statement by this government witness that my client is the source of Mr. Castillo's cocaine.
....
And so there is-there is nothing that I can imagine can be done to cure the tremendous amount of prejudice that is occasioned by such a remark.... the cat has been let out of the bag, to borrow a phrase from [government counsel] in that there is no way,...
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