United States v. Frank Stevens

KENNEDY, Circuit Judge,

dissenting.

While I do agree with the panel as to the importance of the defendant’s right not to be placed twice in jeopardy, the Supreme Court has determined that “a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949). Because I believe the circumstances presented here merit a finding of manifest necessity that “subordinates” the defendant’s “right to have his trial completed by a particular tribunal” in favor of the public’s interest in ensuring justice, I respectfully dissent.

The doctrine of manifest necessity, first set forth in United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824), established that a defendant could be retried after the judge, despite the defendant’s objection, dismissed a hung jury. In that landmark opinion, Justice Story wrote:

We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of Judges, under their oaths of office.

Perez , 22 U.S. (9 Wheat) at 580. In United States v. Jorn, 400 U.S. 470 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971), the Supreme Court repeated the warnings of Perez and stated that “the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Id. at 485, 91 S.Ct. 547 (citing Perez , 22 U.S. (9 Wheat) at 580). Thus, as Perez and its progeny intimate, although courts are to rarely declare mistrials due to “manifest necessity,” the test for doing so is a flexible one, “with reviewing courts analyzing the trial court’s exercise of discretion in light of the particular facts and circumstances of each individual case.” Harpster v. Ohio, 128 F.3d 322, 328 (6th Cir.1997).

Cases concerning the unavailability of essential witnesses, as the majority correctly points out, fall somewhere along this continuum. In Wade , the defendant faced a court-martial in Germany at the end of World War II. After the proceedings commenced, the Commanding General withdrew the charges and transmitted them to a different Commanding General due to the need to secure the attendance of additional witnesses in a time of war. 336 U.S. at 686-87 . The Supreme Court determined that manifest necessity for the mistrial existed because of the “tactical situation brought about by a rapidly advancing army.” Id. at 691 , 69 S.Ct. 834 . More specifically, the Supreme Court rejected the rigid rule set forth in Cornero v. United States, 48 F.2d 69 (9th Cir.1931), that *590 held absent witnesses cannot serve as a basis for denying a mistrial:

We are asked to adopt the Cometo rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guiding principles of the Perez decision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgement to take “all circumstances into account” and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances without injury to defendants or to the public interest.

336 U.S. at 691 , 69 S.Ct. 834 . The Supreme Court reiterated this discretionary standard for unavailability cases in Downum v. United States, 372 U.S. 734 , 83 S.Ct. 1033 , 10 L.Ed.2d 100 (1963), even though the Court determined that there was no manifest necessity because the prosecutor knew of the witness’s likely absence prior to trial and could have proceeded to trial on the remaining four counts. Id. at 738 , 83 S.Ct. 1033 ; see also State v. Barthels, 174 Wis.2d 173 , 495 N.W.2d 341, 349 (1993) (finding no manifest necessity based primarily on Downum because the prosecutor was aware prior to trial that an essential prosecution witness would not appear at trial). However, the Court “refuse[d] to say that the absence of witnesses ‘can never justify discontinuance of a trial,’ ” instead stating that “[e]aeh case must turn on its facts.” Downum, 372 U.S. at 737 , 83 S.Ct. 1033 (quoting Wade, 336 U.S. at 691 , 69 S.Ct. 834 ). Nonetheless, district courts must exercise caution when declaring mistrials due to the absence of prosecutorial evidence since appellate courts subject such rulings to the “the strictest scrutiny.” Arizona v. Washington, 434 U.S. 497, 508 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978).

After reviewing this precedent, my colleagues reject an approach that considers the point at which the government learns of the witness’s refusal or inability to testify. Instead, the majority opinion questions the “purpose” of the mistrial, finding that “the purposes of the Double Jeopardy Clause would be defeated by allowing the government to make another attempt” to prosecute Stevens. It seems that the majority fears that a finding of manifest necessity on these facts could lead to manipulation by the prosecution and provide the government with a more favorable opportunity to convict the defendant. District courts, however, are capable of discerning when a prosecutor has been neglectful or sly as opposed to genuinely surprised. See, e.g., Downum, 372 U.S. at 737-38 , 83 S.Ct. 1033 . Further, despite the majority’s implication to the contrary, the “necessity” for the mistrial remains the same whether the prosecution witness becomes ill or unexpectedly refuses to testify. In both situations, the government is unprepared to proceed, through no fault of its own, by the unavailability of an essential witness. To hold otherwise, as the majority notes, places the government in an unenviable position: The government has to have a jury sworn before it can request that the witness be held in civil contempt, United States v. Johnson, 736 F.2d 358, 365 (6th Cir.1984), 1 but at the same time, double jeopardy attaches once the jury is sworn. This dilemma “invite[s] defendants to threaten, coerce, or otherwise intimidate principal government witnesses in order to *591 avoid trial.” United States v. Khait, 643 F.Supp. 605, 610 (S.D.N.Y.1986). Thus, by allowing the government to retry the defendant in cases of unavailable witnesses such as this one, courts avoid this result, adhere to the demands of public justice, and safeguard “society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Washington, 434 U.S. at 509 , 98 S.Ct. 824 .

Moreover, the case law supports a finding of manifest necessity based on these facts. Two of our sister circuits have found manifest necessity when a prosecution witness becomes unavailable through no fault of the government. See United States v. Shaw, 829 F.2d 714 (9th Cir.1987), ce rt. denied, 485 U.S. 1022 , 108 S.Ct. 1577 , 99 L.Ed.2d 892 (1988); United States ex. rel. Gibson v. Ziegele, 479 F.2d 773, 777 (3d Cir.), cert. denied, 414 U.S. 1008 , 94 S.Ct. 370 , 38 L.Ed.2d 246 (1973). In Gibson, the Third Circuit found manifest necessity when a prosecution witness became too ill to testify at trial and his testimony was essential to the case. 479 F.2d at 777 . Similarly, in Shaw , the Ninth Circuit found manifest necessity when a key witness informed the court on the day of trial that she intended to invoke her Fifth Amendment privilege against self-incrimination. The prosecutor immediately offered the witness immunity, but the district court, unsure that the witness would accept the immunity deal, told the parties not to refer to the witness’s expected testimony in opening statements. The prosecutor did not, but defense counsel made repeated references to the testimony and credibility of the witness in opening statements. Shaw, 829 F.2d at 718-19 . The next day, the witness accepted the immunity deal and the court ordered the witness to testify. When she still refused to do so, the district court granted the mistrial motion over a defense objection. See id. at 719 . The Ninth Circuit affirmed a finding of manifest necessity because “the trial judge gave both defense counsel and the prosecutor full opportunity to express their views on the propriety of a mistrial and ... [the judge] considered both curative jury instructions and the introduction of [the witness’s] grand jury testimony as alternatives to a mistrial.” Id. at 720 . Coupled with the deference given to the district court and the prosecutor’s efficient response by granting the witness immunity, the Ninth Circuit determined that these reasons were sufficient to declare a mistrial. See also United States v. Gallagher, 743 F.Supp. 745, 748-49 (D.Or.1990) (finding manifest necessity for mistrial when essential government witness abruptly and unexpectedly announced that he was a liar and refused to answer questions after both parties had emphasized witness’s testimony in opening statements); Khait, 643 F.Supp. at 608-609 (unavailability of witness because of likely coercion and threats by defendant served as basis for mistrial after jury had been impaneled); McCorkle v. State, 95 Md. App. 31 , 619 A.2d 186, 201 (Md.App.1993) (holding that absence of key prosecution witness through no fault of either party was.sufficient to establish manifest necessity for a mistrial); State v. Dunns, 266 N.J.Super. 349 , 629 A.2d 922, 938 (N.J.Super.App.Div.1993) (finding that manifest necessity existed to declare the mistrial because of the unavailability of an essential prosecution witness, but dismissing the charges against the defendant because of principles of “fundamental fairness,” i.e., the likelihood of success, the prejudicial impact on defendant, and other concerns).

The common thread throughout these cases is that of an essential government witness who became unavailable after the jury was impaneled and the witness’ unavailability was a surprise, arose after the trial began, and was not due to the fault of the government. Drawing from the case law, it appears that a district court may find manifest necessity for a mistrial at the government’s request when all of these circumstances converge. Of course, the district court must respond appropriately, either by proceeding with the trial and doing what can be done to cause the wit *592 ness to testify or at least by considering a continuance. Further, the district court must examine whether the witness’ absence has prejudiced the government in the eyes of the jury and whether a curative instruction would prove insufficient. See Glover v. McMackin, 950 F.2d 1236, 1242 (6th Cir.1991) (citing Jones v. Hogg, 732 F.2d 53 , 56 n. 1 (6th Cir.1984)). Only in these relatively rare occasions when all of these factors are met may a district court correctly determine that “manifest necessity” exists and declare a mistrial. 2

At first and last blush, the instant case meets this test for manifest necessity and falls within the handful of cases in which an essential witness becomes unavailable through no fault of the government. 3 Although the compulsion order here suggests that the government had some knowledge that Pizzo might be reluctant to testify because of self-incrimination, there is nothing to suggest that the government knew that Pizzo would refuse to testify because he feared for his safety or the safety of his family. The government indicated that Pizzo was on the government’s witness list of February 19, 1997, and that the government had talked to Pizzo’s attorney as of February 22 or 23, 1997, about testifying at trial and Pizzo’s attorney responded that “they would be [at trial].” Once at trial, the district court observed that all parties appeared surprised that Pizzo would not testify and found that none of the parties caused Pizzo’s unavailability. 4 Although the defendant argues that the government should have more diligently verified that Pizzo would testify, even Piz-zo’s attorney testified that he knew of his client’s wishes only one week prior to the trial. Further, despite the efforts of the United States Attorney to meet with Pizzo before trial, Pizzo’s attorney never contacted the government to arrange a meeting and the government was not at liberty to contact him directly. Based on these considerations, the district court found that the testimony did not place the prosecutor on notice that Pizzo would refuse to testify. Instead, the government had “ensured [the witness’s] actual physical presence at trial but could do no more than it did in attempting to compel [him] to speak.” Dunns, 629 A.2d at 936 .

In addition, both the government and the district court acted reasonably and swiftly in the face of Pizzo’s refusal to testify. The government responded immediately by offering Pizzo immunity, which he refused, and then continued to try the case without Pizzo, hoping the contempt citation and incarceration would persuade him to testify. After this attempt proved futile, the government requested a mistrial. The district court delayed the trial, researched the issue, gave the contempt citation time to work on Pizzo, found that a limiting instruction could not adequately cure any prejudice, and finally, after full *593 briefing and argument from both parties, declared a mistrial. Arguably the trial court could have granted a longer continuance, but the trial already had proceeded for two and a half weeks and Pizzo showed no sign of wavering. Had the district court waited longer, the defendant possibly could have brought a successful appeal based on fundamental fairness and escaped all prosecution on these charges.

Accordingly, I believe that the district court acted appropriately in finding manifest necessity for the mistrial. Indeed, Pizzo still may testify in a trial against Stevens alone, a trial in which Pizzo’s brother-in-law is not a co-defendant. Thus, this case does not present circumstances in which a retrial would be futile and double jeopardy may attach, e.g., the key prosecution witness dies after the jury is empaneled. Manifest necessity existed because, without Pizzo, there was no case against Stevens, the government did not cause Pizzo’s unavailability, and the government had no notice that Pizzo would refuse to testify. For the stated reasons, I would affirm the denial of defendant’s motion to dismiss the charges against him.

. In a subsequent appeal in Johnson , this Court limited its prior holding and held that a witness could be held in contempt prior to trial under the Recalcitrant Witness Act for refusing to testify at a deposition ordered under Federal Rule of Criminal Procedure 15(a). United States v. Johnson, 752 F.2d 206, 209-210 (6th Cir.1985) ("Johnson II”). Prosecutors must show "exceptional circumstances ... in the interest of justice” to depose a prospective witness of a party for the purpose of using that deposition testimony at trial. Fed.R.Crim.P. 15(a). Johnson II is inapplicable here because it appeared that Pizzo would testify at trial, as he had in the grand jury proceedings.

. Judicial economy may not serve as a basis for finding manifest necessity. See United States v. Chica, 14 F.3d 1527, 1532-33 (11th Cir.1994) (finding that at least four other circuits have so held); United States v. Bridewell, 664 F.2d 1050, 1051 (6th Cir.1981) (waste of federal resources is not a sufficient reason for finding manifest necessity).

. Indeed, the district court hinted that one of the defendants may have been behind the threats made to Mr. Pizzo:

I think in this instance it is a little colored by the fact that Mr. Pizzo is deciding that he is not going to do this occurs while the Jury is impanelled (sic) — excuse me. Even though I'm not satisfied that either of these Defendants are on this record responsible for it on the basis of any evidence I have, it causes me a little pause.

J.A. 302. The majority discusses the test set forth by the Second Circuit in United States v. Mastrangelo, 662 F.2d 946 (2d Cir.1981), in which the district court must find a "distinct possibility” that one of the defendants may have caused the witness to refuse to testify. Id. at 952 . Based on the district court’s statement here, such a “distinct possibility” may exist in this case.

.Although the government admitted that it considered Pizzo a potentially hostile witness and thus produced the earlier compulsion orders, Pizzo apparently surprised everyone when he disclosed the alleged threats against him and refused to testify after being granted immunity.