Sanchez v. United States

STEADMAN, Senior Judge,

dissenting:

Although the point may not be so clear as to constitute “plain error,” I agree with the majority’s conclusion that D.C.Code § 16-2302(b) (2001), as interpreted in Logan v. United States, 483 A.2d 664 (D.C.1984), permitted the trial in this case to continue to verdict, notwithstanding the belated discovery of the indictment error. I part company with the majority, however, in its conclusion that appellant is entitled to invoke the double jeopardy clause to forestall a second trial. I do so because of what I view as the appellant’s acquiescence in the conclusion shared by all parties — trial court, government, and defense counsel — that the asserted jurisdictional bar forced the termination of the trial proceedings. In my judgment, this acquiescence bars him from now claiming a double jeopardy right against a new trial. 1

When the government raised the issue of a possible jurisdictional defect, defense counsel said that her initial reaction was to ask that the case be dismissed with prejudice but asked for time to consult with the Public Defender Service. The trial court decided to give all parties time during the luncheon break to examine the situation.

*1156 Upon resumption of proceedings in the afternoon, the trial court at the outset framed the following inquiry:

I’m going to ask a question. Is there either side to this case that disagrees that the case properly is to be terminated at this point? Now, when I say terminated, I’m using that term very loosely. I’m not saying terminated forever. I’m not saying terminated not forever. What I’m saying is there any part [sic] — or any side to this case that would suggest that we should continue further with the testimony and the evidence? So I’m taking the silence to answer that as no.

After a brief further discussion, the trial court without objection decided to dismiss the jury:

Since it’s no dispute that this trial right here or this part of it will cease as soon as I have them [the jury] come back in here, what’s really I think the nuts and bolts of this is, does this case go away without prejudice or does this case come back? That’s really the remaining issue. No more, no less.

Thereafter, during an extended dialogue and discussion, the issue as presented to the trial court was whether it would adopt the government’s position that a mistrial should be declared on the basis of manifest necessity or that of the defendant that the case should be dismissed with prejudice. Thus, at the time of decision-making, all parties seemed to be in agreement that only two options existed, neither of which involved a continuation of the trial. Indeed, immediately prior to the formal declaration of a mistrial, this interchange occurred:

THE COURT: Well, there doesn’t seem to be any disagreement between you two in terms of the procedural [sic] moving forward, other than your [defense counsel] request would be with prejudice, your [prosecutor] request would be without prejudice.

[DEFENSE COUNSEL]: Right.

THE COURT: That’s the only difference I’ve heard. So —

[DEFENSE COUNSEL]: And I’m not agreeing' — I can’t agree to the mistrial. THE COURT: Right, you [are] objecting to the mistrial. No doubt about that.

Thus, the objection to the mistrial occurred not in the desire that the case continue, but rather solely on the untenable ground that the dismissal should have been made with prejudice. 2

In this posture, I think that appellant has lost any right to now claim double jeopardy. We have typically declined to entertain an appellate claim that is contrary to a litigant’s position at trial. See, e.g., Brown v. United States, 627 A.2d 499, 508 (D.C.1993) (“[A] defendant may not take one position at trial and a contradictory position on appeal.”). Double jeopardy is a right that can be waived simply by failure to invoke it at the time of a second trial. Christian v. United States, 394 A.2d 1, 38 (D.C.1978) (citing United States v. Scott, 150 U.S.App. D.C. 323, 324, 464 F.2d 832, 833 (1972)), cert. denied, 442 U.S. 944 , 99 S.Ct. 2889 , 61 L.Ed.2d 315 (1979). It also can be waived by implicit acquiescence in the grant of a mistrial. Anderson v. United States, 481 A.2d 1299, 1300-01 (D.C.1984). I see no reason why defense counsel’s actions here in the acquiescence *1157 to the framing of the issue for consideration by the trial court and the options the trial court saw open to it — that is, acquiescence to termination as such, even though not to the particular method of accomplishing it — does not have the same effect in precluding the appellant from invoking at this point a claim of double jeopardy protection against a new trial. 3 See People v. Tracey, 221 Mich.App. 321 , 561 N.W.2d 133, 137 (1997) (“[T]o determine whether consent makes retrial permissible under double jeopardy principles, the relevant issue is whether a defendant consented to the discontinuance of the trial, rather than whether he formally consented to the declaration of a mistrial.”). I respectfully dissent.

. "This Court has implicitly rejected the contention that the permissibility of a retrial following a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a constitutional right.” United States v. Dinitz, 424 U.S. 600 , 609 n. 11, 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976) (citations omitted).

. Defense counsel's argument for such a dismissal was based on double jeopardy grounds, since "Mr. Sanchez has already been through, since the 17th, two weeks as of tomorrow, I believe, maybe longer, of a trial and the case should be dismissed with prejudice.” No argument is now made that such a dismissal would have been proper in the face of Illinois v. Someiville, 410 U.S. 458 , 93 S.Ct. 1066 , 35 L.Ed.2d 425 (1973).

. Even if defense counsel had been aware of the existence of D.C.Code § 16-2302(b) and the Logan holding, her client would be served by silence in the face of the trial court’s framing of the issue, thereby making possible the double jeopardy argument accepted by the majority here. It may not be wise to open the possibility of such sandbagging in the double jeopardy context, any more than in permitting counsel to withhold objections. See Jackson v. United States, 650 A.2d 659, 663 (D.C.1994) (“If the decision not to object can he viewed as a tactical choice, it should not be considered plain error. An appellant is bound by the position taken by trial counsel and should not be allowed to reverse a position taken at trial in order to disavow the implications that flow from it.” (citations and internal quotation marks omitted)).