Petition — Moroyoqui v. United States

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MAR 29 1978

{_Micaey RODAK, JR., CLERK

IN THE

Supreme Court of the United States

No %%@-1375

AUGUSTINE DOZAL MOROYOQUI,

Petitioner,

versus

THE UNITED STATES OF AMERICA,

Respondent,

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Jerry D. Patchen

Attorney for Petitioner

5959 West Loop South

Suite 606

Houston (Bellaire), Texas 77401

Of Counsel:

Clarence D. Moyers

Attorney at Law

1011 N. Mesa

Paso, Texas 79902

TABLE OF CONTENTS

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PRT CCCP CET PTT TT ee

Constitutional Provision Involved .......... |

iu sense ewe ees ban

Reason for Granting the Writ ..............

I

Opinion of the U. S. Court of Appeals,

I a acd ek a ed at

TABLE OF AUTHORITIES

United States v. Dinitz, 424 U. S. 600 (1976) ....

United States v. Kessler, 530 F.2d 1246

EE 69 SOG hNw eo ASW e Ree ee ees

United States v. Martin, 561 F.2d 135

SIR eee er re

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

AUGUSTINE DOZAL MOROYOQUI,

Petitioner,

versus

THE UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Petitioner respectfully prays a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit entered

in this proceeding on December 27, 1977.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit is reported at ...... re

a copy of which appears in the Appendix hereto.

2

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on December 27, 1977. A Petition

for Rehearing was timely filed on behalf of Defendant-

Appellant Moroyoqui and an order denying said Peti-

tion was entered on January 31, 1978. A Motion for

Stay of Issuance of Mandate and for Extension of Time

Within Which to Petition for Rehearing was also time-

ly filed on behalf of Plaintiff-Appellee, the United States

of America and an order granting said motion was en-

tered on January 13, 1978, wherein the mandate in

this case was stayed and the time for filing Appellee’s

Petition for Rehearing was extended to and including

February 9, 1978. The Petition for Rehearing was filed

by the United States of America on February 9, 1978,

and an Order denying the Petition for Rehearing was

entered on February 28, 1978. This Petition for Certi-

orari was timely filed within thirty (30) days of that

date. This Court’s jurisdiction is invoked under Title

28, United States Code, Section 1254(1).

QUESTION PRESENTED

Whether the conduct of the Prosecutor, in placing

prejudicial testimony before the jury which required

the declaration of a mistrial, amounted to gross negli-

gence which constituted prosecutorial overreaching

and thus deprived Appellant of his valued right to have

his trial completed by a particular tribunal, in viola-

tion of his rights under the double jeopardy clause of

the Fifth Amendment.

CONSTITUTIONAL PROVISION INVOLVED

The following portion of the Fifth Amendment of

the Constitution of the United States:

** , . nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;”

STATEMENT OF FACTS

This is an appeal of a criminal prosecution wherein

Petitioner was put on trial in the United States Di-

3

strict Court for the District of Arizona for violation of

21 U.S.C. 841 (a)(1) and 21 U.S.C. 846. During the

examination of the government’s final witness, the

Prosecutor elicited testimony which was prejudicial

to Petitioner. Defense counsel’s request for mistrial

was granted. Prior to a second trial, Petitioner filed a

Motion to Dismiss Because of Prior Jeopardy, claiming

the Prosecutor’s conduct was intentional misconduct

or gross negligence amounting to Prosecutorial over-

reaching, thus, barring further prosecution. After a

hearing the Trial Court found no intentional miscon-

duct and set the case for a second trial over Petitioner’s

objection, even though Petitioner filed Notice of Appeal.

After the commencement of a second trial, Peti-

tioner entered a guilty plea, pursuant to a plea bargain-

ing arrangement, and was sentenced to three years in

the penitentiary.

On appeal, the Court of Appeals for the Ninth Circuit

reversed, holding that the lower court had no jurisdic-

tion to proceed with the second trial or the guilty plea.

The Court of Appeals accepted the lower court’s find-

ings of no intentional misconduct and no overreach-

ing, a decision which conceivably permits reprosecu-

tion. The Trial Court and the Appellate Court failed to

address the question of whether the Prosecutor’s con-

duct was so grossly negligent as to constitute over-

reaching, wherein jeopardy attached barring further

prosecution.

A close scrutiny of the sequence of certain events

prior to and during the first trial clearly reveals “gross

negligence,” if not intentional misconduct, on the part

of the Prosecutor. Prior to the trial, the Prosecutor as-

sured defense counsel that he would noi attempt to

introduce evidence of extrinsic offenses or collateral

matters. This agreement was announced to the Court

and ratified by the Court. During the trial, the Prose-

cutor informed defense counsel that he would deviate

from the ruling on Petitioner’s Motion in Limine and

would attempt to introduce evidence of a collateral

offense. A chambers conference was held and the

Court again cautioned the Prosecutor not to violate the

4

order on the Motion in Limine. Notwithstanding the

Prosecutor’s agreement, the order of the Court, and

the later admovition of the Court not to attempt to

introduce evidence of collateral matters, the Prosecutor

called his final witness for the sole purpose of eliciting

the following testimony:

“Q. Have you passed that residence before?

A. Yes, sir, I have.

Q. When was that?

A

On various occasions during other narcotics

investigations, | became familiar with the res-

idence.

Q. At what point in time did you pass by the

residence?

What time that day?

Q. No. How long before this date had you passed

in front of that residence?

>

A. Occasionally for probably five or six months.

MR. PATCHEN: Your Honor, I think this is ir-

relevant and I move for a mistrial.”

(TR-152) (Emphasis added. )

The Prosecutor had no reasonable basis for asking

the above questions. The residence of Petitioner was

not at issue, had nothing to do with the alleged viola-

tion of law, and had previously been testified to no

less than ten times. The issue of Petitioner’s residence

was wholly irrelevant.

A reading of the entire transcript prior to the above

testimony reveals that the previous government wit-

nesses had testified to facts which destroyed any hope

of the government obtaining a conviction on the con-

spiracy count and which certainly created a reason-

able doubt as to Petitioner’s guilt on the delivery count.

5

Petitioner was forced to request a mistrial when he

would have preferred to have his guilt or innocence

determined by the first trial jury.

REASON FOR GRANTING THE WRIT

Whether The Conduct Of The Prosecutor, In Plac-

ing Prejudicial Testimony Before The Jury Which

Required The Declaration Of A Mistrial Amounted To

Gross Negligence Which Constituted Prosecutorial

Overreaching And Thus Deprived Appellant Of His

Valued Right To Have His Trial Completed By A Par-

ticular Tribunal In Violation Of His Rights Under The

Double Jeopardy Clause Of The Fifth Amendment.

Central to the above Point of Error is the contention

that if the Prosecutor did not act intentionally or in

bad faith, the Prosecutor was “grossly négligent.” The

Court of Appeals for the Ninth Circuit overlooked in

its opinion this important contention.

The Appellate Court adopted the Trial Court’s con-

clusion that the Prosecutor did not act “knowingly”

or in “bad faith.” Nowhere does the opinion of the

Court of Appeals address the issue as to whether or not

the conduct of the Prosecutor was grossly negligent.

Petitioner relies on the case of United States v. Kess-

ler, 530 F.2d 1246 (5th Cir. 1976) to support the propo-

sition that grossly negligent conduct can be “over-

reaching;” and the Prosecutor does not necessarily

have to act knowingly or in bad faith to overreach.

The Eighth Circuit has also adopted the gross negli-

gence standard. United Stotes v. Martin 561 F.2d 135

(8th Cir. 1977).

Thus, within a year of the Supreme Court landmark

case of United States v. Dinitz, 424 U.S. 600 (1976) two

Circuits have adopted the gross negligence standard

and concluded “to find prosecutorial overreaching the

Government must have, through gross negligence or

intentional misconduct caused aggravated circum-

stances to develop ... ” Kessler, supra at 1256 (Em-

phasis added.)

6

This Court should consider not only whether the

Prosecutor acted knowingly or in bad faith, but also

should determine whether the conduct of the Prose-

cutor was grossly negligent. Careful consideration of

the Prosecutor’s conduct will lead this Court to con-

clude that the Prosecutor was grossly negligent.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this Petition for a Writ of Certiorari should

be granted.

Respectfully submitted,

BY: —

JERRY D. PATCHEN

5959 West Loop South

Suite 606

Houston (Bellaire), Texas 77401

CLARENCE D. MOYERS

1011 North Mesa

FE] Paso, Texas 79902

7

CERTIFICATE OF SERVICE

I, CLARENCE D. MOYERS, a member of the Bar of

the Supreme Court of the United States, hereby certify

that on the .......... day of March, 1978, I served

copies of the foregoing Petition for a Writ of Certiorari

to the Supreme Court of the United States by mailing

a copy thereof to the office of Jamie Boyd and by mail-

ing three copies in a duly addressed envelope, with

air mail postage prepaid, to The Solicitor General,

Department of Justice, Washington, D.C. 20530.

CLARENCE D. MOYERS

APPENDIX

la

FILED

December 27, 1977

Emil E. Melfi, Jr.

Clerk, U.S. Court of

Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AUGUSTINE DOZAL MOROYOQUI, }

Defendant/ Appellant,

” | NO. 77-1505

UNITED STATES OF AMERICA, OPINION

Plaintiff/Appellee,

Appeal from the United States District Court

for the District of Arizona

Before: CHAMBERS and SNEED, Circuit Judges, and

SOLOMON,* District Judge.

SNEED, Circuit Judge:

In 1976 Petitioner Moroyoqui was put on trial on

charges of conspiracy to possess with intent to distribute

cocaine and with distribution of cocaine, in violation

of 21 U.S.C. §§ 841 (a) (1) and 846. During the exam-

ination of a government witness, information was

brought out under questioning by the prosecution

which was prejudicial to the petitioner. The court

granted defense counsel’s request for a mistrial.

*Hon. Gus J. Solomon, Senior United States District Judge for

the District of Oregon, sitting by designation.

Qa

Before a second trial was held, petitioner moved for

dismissal, claiming that he was forced to demand a

mistrial because of overreaching and misconduct by

the prosecutor and that, under those circumstances,

requiring him to undergo a second trial would violate

his rights under the Double Jeopardy Clause of the

Fifth Amendment. After a hearing on the matter the

trial judge denied the motion, concluding that neither

the prosecutor nor the witness had “knowingly” intro-

duced the prejudicial information. Petitioner then

sought permission to appeal the denial. Apparently

aware both of the Ninth Circuit’s decision in United

v. Young, 544 F.2d 415 (1976), holding such denials

unappealable, and of the pendency before the Supreme

Court of Abney ». United States, 97 S.Ct. 2035 (1977),

the Court and petitioner agreed that the appeal would

be “lodged” but no attempt would be made to pursue

it at that time. (Transcript p. 142). Shortly after the

commencement of the second trial, petitioner entered

a guilty plea, pursuant to a plea bargaining arrange-

ment. Petitioner was thereupon sentenced to a three-

year term. He now appeals, alleging, among other

claims, that the Double Jeopardy clause properly barred

a second trial. We reverse and set aside the appellant’s

conviction.

At the threshold we are met with the Government’s

contention that by entering his guilty plea petitioner

waived the right to raise the double jeopardy issue on

appeal. We disagree. Where the state is precluded by

a constitutional claim from trying the defendant at all,

his conviction must be set aside even if it was obtained

pursuant to a guilty plea. Menna v. New York, 423 US.

61, 62 (1975); United States v. O'Donnell, 539 F.2d

1233, 1236-37 (9th Cir. 1976). In Menna the defendant

did not attempt to appeal the dismisal of his double

jeopardy defense until after he was sentenced. None-

theless the Court held that a guilty plea “does not waive

a claim that — judged on its face — the charge is one

which the State may not constitutionally prosecute.”

#23 U.S. at 63, n.2. This conclusion is equally true

where, as we conclude was the case here, the defend-

ant was improperly denied his right to appeal. Thus

3a

petitioner’s claim of double jeopardy is preperly before

us.

The Supreme Court held in Abney that an order

denying a motion to dismiss on double jeopardy

grounds is a final decision and therefore appealable

under 28 U.S.C. § 1291. Abney was decided during

the pendency of this appeal. It is settled that “a change

in law will be given effect while a case is on direct

review,” Linkletter v. Walker, 381 U.S. 618, 627

(1965); United States v. Schooner Peggy, 1 Cranch 103

(1801). In Carafas v. LaVallee, 391, U.S. 234 (1968),

for example, the Supreme Court held that a constitu-

tional decision would apply even to a case in which

the court of appeals had already ruled, but which was

“not concluded at the time’ because a petition for

certiorari had been filed, id. at 241. A fortiori, we are

bound by a decision handed down during the pendency

of this appeal.

Applying Abney to our case, then, it is clear that

when petitioner “lodged” his appeal from the trial

court’s denial of his claim, jurisdiction was conferred

upon the court of appeals. As a consequence the trial

court was without power to proceed with the trial.

Under the unusual circumstances of this case, the fail-

ure to pursue the appeal does not alter this result. We

must, therefore, set aside the appellant’s conviction.

We hold, however, that reprosecution is not barred

by the Double Jeopardy Clause. A motion for a mis-

trial by the defendant normally serves to remove any

barrier to reprosecution. Such is not the case, however,

when the prosecutor has through bad faith or over-

reaching “goaded” the defendant into requesting a

mistrial. Lee v. United States, U.S. , 97 S.Ct.

2141 (1977); United States v. Dinitz, 423 U.S. 600,

611 (1976); United States v. Jorn, 400 U.S. 470, 485

(1971). Petitioner alleges that here the prosecutor

intentionally elicited prejudicial information from a

witness, and this conduct was sufficient to bar prose-

cution.

The trial judge rejected this allegation. After hear-

ing testimony from the government witness and from

the prosecutor, she concluded that the prosecutor had

4a

not acted knowingly. The judge who hears the wit-

nesses is in a better position than is a reviewing court

to weigh their testimony and evaluate their credibility.

We are not persuaded that the trial judge’s findings

concerning the witnesses’ credibility and intent are

“clearly erroneous.” Nor do we believe that his con-

clusion that the conduct of the prosecutor and witness

did not constitute “bad faith” or “overreaching” is

erroneous.

Inasmuch as reprosecution is not inevitable, although

constitutionally possible, our disposition of this case is

merely to reverse and set aside the appellant’s convic-

tion.

REVERSED.