Petition for Writ of Certiorari — Jarvis v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

UNITED STATES OF AMERICA,

Respondent,

}

VS a

RICHARD A. JARVIS,

Petitioner,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FRANK A. RUBINO, ESQUIRE

3370 Mary Street

Coconut Grove, FL 33133

(305) 444-5411

)

\

Counsel for Petitioner

BY

QUESTIONS FOR REVIEW

DID THE COURT ERR IN DENYING THE

MOTION OF RICHARD A. JARVIS, TO

DISMISS, BASED ON GROUNDS OF DOUBLE

JEOPARDY.

DID THE COURTS DETERMINATION THAT A

MISTRIAL WAS REQUIRED BECAUSE OF

JUROR PREJUDICE, OVER THE OBJECTIONS

OF RICHARD A. JARVIS, MEET THE STAN-

DARDS OF "MANIFEST NECESSITY."

WAS THE MATERIAL FACTS OF THE CASE

MISAPPLIED.

DID THE COURTS DECISION CONFLICT

WITH DECISIONS OF THE UNITED STATES

SUPREME COURT AND OTHER CIRCUIT

COURTS REGARDING DOUBLE JEOPARDY.

—

.

TABLE OF CONTENTS

QUESTIONS FOR REVIEW

TABLE OF AUTHORITIES

MEMORANDUM OF NINTH

CIRCUIT COURT OF APPEALS

GROUNDS FOR JURISDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

FEDERAL JURISDICTION IN

DISTRICT COURT

ARGUMENT

INTRODUCTION

Be LIMITED SCRUTINY BASED

ON RATIONAL BASIS IS NO

SCRUTINY. A TRIAL COURT

MAY BE ABLE TO RATIO-

NALIZE A VIOLATION OF

THE CONSTITUTION BUT

SUCH RATIONALIZATION

IS IRRESPONSIBLE

A. DECISION CONTRARY TO

UNITED STATES SUPREME

COURT STANDARD PER-

MITTING MISTRIAL ONLY

IN EXTRAORDINARY AND

STRIKING CIRCUMSTANCES

PAGE

10

10

13

14

TABLE OF CONTENTS

Continued

DECISION CONTRARY TO

NINTH CIRCUIT DECI-

SIONS WHICH DO NOT

AUTHORIZE A MISTRIAL

MERELY BECAUSE DE-

FENDANTS ARE SEEN

IN SHACKLES

DECISION CONTRARY

TO DECISION OF THE

UNITED STATES SUPREME

COURT DECIDED AFTER

THE BRIEF IN THIS

CASE

WHERE A MISTRIAL IS DE-

CLARED BECAUSE OF ERRORS

OR OMISSIONS BY THE COURT

OR THE GOVERNMENT RATHER

THAN MATTERS BEYOND THE

CONTROL OF EITHER, THE

STANDARD OF REVIEW IS

STRICT SCRUTINY

A.

ARIZONA V. WASHINGTON

AND JARAMILLO INVOLVED

A

MATTERS CAUSED BY THE

DEFENSE OR MATTERS BE-

YOND THE CONTROL OF

THE PROSECUTION OR THE

COURT AND WERE ERRO-

NEOUSLY APPLIED IN

THE PANEL DECISION

PAGE

15

16

23

23

TABLE OF CONTENTS

Continued

PAGE

B. THE PANEL DECISION IS

CONTRARY TO THE REA-

SONING IN OTHER APPEL-

LATE DECISIONS WHICH

CAREFULLY BALANCE THE

NEED FOR A MISTRIAL

AGAINST THE RIGHTS OF

THE DEFENDANT TO PRO-

CEED TO TRIAL 25

9. CONCLUSION 28

10. CERTIFICATE OF SERVICE 29

iv.

10.

ll.

CORLEY v. CARDWELL,

544 F.2d 343 (th C

TABLE OF AUTHORITIES

FIFTH AMENDMENT OF THE

UNITED STATES CONSTITUTION

ABNEY v. UNITED STATES,

431 U.S. 651 (1977)

ARIZONA v. WASHINGTON,

434 U.S. 497 (1978)

DOWNUM v. UNITED STATES,

372 U.S. /34

EGAN v. CITY OF AURORA

Ns U.S.

HOLBROOK v. FLYNN,

U.S. , 39 Crim.Law Rp.

3217 (1986)

UNITED STATES v. JORN,

Z00 U.S. 470, (1971)

WILKINSON v. UNITED STATES,

365 U.S. 399, (1961)

BRENTON v. MARYLAND,

ir. 1976)

UNITED STATES v. ACOSTA-

(oth Cir. 1971)

18

22

16

15

12.

3;

14,

AD.

16.

FB

18.

19,

20.

TABLE OF AUTHORITIES

Continued

UNITED STATES v. FIGUEROA-

(oth Cir. 1984)

UNITED STATES v. JARAMILLO,

. ir.

UNITED STATES v. LEACH,

‘ =. 70)

UNITED STATES v. McKOY,

; r ir. 79)

UNITED STATES v. SISK,

, ir. 1980)

UNITED STATES v. SMITH,

; ir. 1980)

TITLE 21 UNTIED STATES

CODE, SECTION 1291

TITLE 21 UNITED STATES

CODE, SECTION 846,

1952 and 2

TITLE 28 UNITED STATES

CODE, UNITED STATES

SUPREME COURT RULE 17

25

26

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

UNITED STATES OF AMERICA,

Respondent,

VS

RICHARD A. JARVIS,

Petitioner,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PETITION

Petitioner Richard A. Jarvis seeks a writ of certiorari to

review the decision of the Ninth Circuit Court of Appeals

which affirmed the denial of his motion to dismiss on

grounds of Double Jeopardy.

MEMORANDUM AND DECISIONS OF THE

NINTH CIRCUIT COURT OF APPEALS

The Ninth Circuit Court of Appeals issued

an unpublished memorandum under date of April 21,

1986, denying the appeal of Richard A. Jarvis from

the District Courts denial of his motion to dismiss

on grounds of double jeopardy. Their memorandum

is enclosed in the appendix to this petition.

A Petition For Rehearing By Panel And

En Banc was submitted to the Ninth Circuit County

Appeals on May 5, 1986. This petition was rejected

by the court on May 14, 1986. This Petition for

Writ of Certiorari follows.

JURISDICTION

This case should be reviews on writ of

certiorari since the Ninth Circuit Court of Appeals

has decided a question of Fifth Amendment Right

that is in conflict with the applicable decision of the

United States Supreme Court. This decision was

rendered on April 21, 1986, and the Petition for

Review En Banc was denied by the court on May

14, 1986.

The Appellant court decided an issue

dealing with Double Jeopardy on grounds that are

inconsistent with the view of the United States

Supreme Court and other Circuit Courts of Appeals.

The settlement of this questions will be important to

the public at large by establishing a clear and

concise rule of law in regards to the issue of

"Manifest Necessity".

Jurisdiction for writ of certiorari is

granted by Title 28 United States Code, United

States Supreme Court Rule 17, Egan v. City of

Aurora, Illinois, 81 S.Ct. 684, 365 U.S. 514, 5

L.Ed2d 741 (1961), and Wilkinson v. United States,

81 S.Ct. 567, 365 U.S. 399, 5 L.Ed.2d 633 (1961).

The Jurisdiction in the Circuit Court of

Appeals was Title 21, United States Code 1291,

which makes the denial of a motion on grounds of

double jeopardy a "final decision", and is immedi-

ately appealable and Abney v. United States, 431

U.S. 651, 655-56 (1977).

CONSTITUTIONAL PROVISION

The Fifth Amendment of the United States

Constitution states...

"(NJjor shall any person be subjected

for the same offense to be twice put

in jeopardy of life or limb.”

United States v. Jorn, 400 U.S. 470,

91 S.Ct. 547, 27 L.Ed.2d 543 (1971) states...

"The Fifth Amendment's prohi-

bition against placing a defendant

‘twice in jeopardy’ represents a

constitutional policy of finality for

the defendant's benefit in federal

criminal proceedings. A power in

government to subject the individual

to repeated prosecutions for the

same offense would cut deeply into

the framework of procedural pro-

tections which the Constitution

establishes for the conduct of a

criminal trial. And society's aware-

ness of the heavy personal strain

which a criminal trial represents for

the individual defendant is manifest-

ed in the willingness to limit the

Government to a single criminal ,

proceeding to vindicate its very vital f

interest in enforcement of criminal

laws."

STATEMENT OF FACTS

Richard A. Jarvis was indicted by a

Federal Grand Jury, along with four (4) co-

defendants on September 4, 1985, for violation of

the Federal Drug Laws.

On November 12, 1985, a jury was em-

paneled and heard opening arguments from the

prosecution and counsel for the five defendants.

Government witnesses were called and testified. On

the second day of trial, after the lunch break,

defense counsel for Jarvis' co-defendants reported

to the Court that all the jurors saw Mr. Jarvis'

four co-defendants being transported from the

courtroom in shackles. In addition to the individual

shackles, the four co-defendants were all connected

by one long chain. Several United States Marshals

were guarding the shackled defendants by the

elevators, the co-defendants counsels reported in

graphic detail that the jurors stared at the shackled

defendants while waiting for an elevator.

Defense counsel for the four co-defen-

dants argued that this confrontation would have a

prejudicial effect on the jurors and would taint the

remainder of the trial.

Defendant Jarvis disagreed and argued

that this would not affect him, since he was not

with the co-defendants.

All four of Jarvis' co-defendants moved

for a mistrial. Jarvis' counsel objected along with

the Government. After hearing argument by the

Defendants and hearing the government's oppo-

sition, the Court initially denied the mistrial motion,

and the trial continued. However, approximately two

hours later the Court recessed the proceedings and

requested counsel to enter chambers. In chambers,

the Court indicated that it was greatly concerned

by the defendant's motion for mistrial. The Court

requested counsel for the Government research the

issue of granting a mistrial and further informed

counsel that the Court would also independently

research the issue.

In chambers, Jarvis’ attorney strongly

objected to a mistrial and advised the Court that no

prejudice would result to Jarvis, since he was not

with the shackled co-defendants. Jarvis' attorney

a

a ee pe ee ~—

further advised the trial judge that there could not

be any spill over effect or guilt by association

because some of the jurors had, in fact, seen

Jarvis across the street at the mall having lunch

with his attorney. Obviously, he would not be

associated with the co-defendants being shackled.

Jarvis' attorney requested that if the Court mistried

the co-defendants, that it continue the trial with

Jarvis, since the trial had already gone on for two

days, all of the government witesses were available

and all of the physical evidence was in the court

room as well as the fact that Jarvis wished to

continue with this jury. Approximately 30 minutes

later, Government counsel provided the Court with

several legal authorities on the subject.

After considering the authorities cited by

the Government, the judge took the bench and

heard extensive argument from both the Government

and from co-defendants’ counsels. During the

Government's argument, Government's counsel

suggested to the Court that a less drastic measure

to granting a mistrial would be to question the

jurors about the incident and, if it appeared that

they could be fair in spite of what they saw, they

could be instructed not to consider the event

during their deliberations. Government counsel also

indicated that he was open to any reasonable alter-

native proposed by defense counsel short of a

mistrial. None of the attorneys representing the

co-defendants proposed any alternative to granting

a mistrial although defendant Jarvis indicated his

desire to proceed with the trial.

During the discussion, the Court noted

that the decision of whether to order a mistrial as

to all the defendants was within the Court's dis-

cretion.

After consulting with all the parties and

having carefully considered alternatives to granting

a mistrial, the Court determined that the possibility

of juror bias necessitated discharging the jury. In

reaching its decision, the Court stated, "after due

reflection I believe that the defendants’ rights were

compromised'"'". The Court stressed that what the

jurors saw would have a detrimental effect on all of

the accused's right to be presumed innocent of the

charges. The Court further expressly found that

Mr. Jarvis' right to a fair trial had been jeop-

ardized because the jurors would infer Defendant

Jarvis' guilt by his association with the other

shackled defendants. Finally, although not a

determinative factor, the Court considered that

there had been only one day of testimony in a trial

that was scheduled to last a week, and therefore

the hardship of granting the mistrial at this point

in the proceedings was reduced”.

After denial of his appeal to the Ninth

Circuit, Richard A. Jarvis was brought to trial in

the Southern District of California on May 14, 1986.

He was found guilty as charged and on July 7,

1986, sentenced to eight (8) years in the custody

of the United States Attorney General. This Writ

of Certiorari follows.

The Jurisdiction of the District Court for

the Central District of California was invoked by

the indictment of Richard A. Jarvis, the Defendant,

charging him with violation of Federal Statute 21,

United States Code section 846, 1952 and 2.

ARGUMENT

i.

Introduction

The District Court declared a mistrial

over defendant's objection. It did this on the basis

that other defendants had been seen in shackles.

Defendant desired to proceed and sought severance

because his attorney believed that it was in his

best interest to complete the trial and if anything,

seeing co-defendants benefitted rather than ham-

pered his defense. The trial judge, as a justifica-

tion for the decision to deny severance and com-

plete the trial, surmised that the jury possibly

might infer that Jarvis was guilty by association.

This postulated prejudice was found even though

Jarvis had already tendered the defense of entrap-

ment and did not deny the facts and wanted to

show that the co-defendants were bad people and

that he was not.

The present case is appropriate for a

hearing by this court because it is one of great

importance to the preservation of the constitutional

10

guarantee that a defendant not be placed twice in

jeopardy. The issues posed in the appeal and the

petition for re-hearing by panel and en banc should

be of gravest concern to district judges, appellate

judges, and all who favor the preservation of

constitutional liberty.

The constitutional guarantee against being

placed twice in jeopardy is a fundamental one, and

the burdens of a double trial also impinge other

constitutional guarantees of effective assistance of

counsel, of trial by jury, of effective cross-

examination and of meaningful due process.

The importance of this question should

not be hidden from scrutiny by an unpublished

memorandum opinion, but should be evaluated in the

solvent of judicial and public opinion. If constitu-

tional liberties are to be diluted by judicial deci-

sion, then this dilution should be in the open for

all to see.

The important question to be resolved is

whether the standard of "manifest necessity" is

really the standard to be applied in the Ninth

Circuit. If a trial judge must apply this standard

ll

in declaring a mistrial over a defendant's objection,

then this standard should not be nullified by the

subterfuge of a standard of review, which allows a

district judge to imagine a rationale to justify a

patently irrational decision.

The District Court did not carefully

consider Mr. Jarvis's rights, did not take evidence

as to jury bias, and simply contrived prejudice to

Jarvis to rationalize its own desire not to have two

separate trials. It merely surmised, contrary to

the belief of defendant's counsel and over his

objection, that since Jarvis was a co-defendant, the

jury could well infer guilt by his association with

the other shackled defendants.

12

I. LIMITED SCRUTINY BASED ON

RATIONAL BASIS IS NO SCRUTINY.

A TRIAL COURT MAY BE ABLE TO

RATIONALIZE A VIOLATION OF THE

CONSTITUTION, BUT SUCH RATIO-

NALIZATION IS IRRESPONSIBLE.

The violation of any law, even the United

States Constitution, may be rationalized by those

who violate it. Limited scrutiny on a rational basis

standard is no scrutiny. But even the limited

scrutiny standard rationally requires that the

standard be exercised responsibly, and to contrive

a justification over counsel's objection under the

facts of the present case was irresponsible.

Responsibility involves being called upon

to answer for one's acts or decisions, to fulfill

one's obligations, and to choose between right and

wrong. A contrived answer or excuse is none at

all, A superficial review of a double jeopardy claim

is no review. A statement that "manifest necessity"

compelled a mistrial, in light of the facts that it

clearly did not, is prevarication, and to deprive a

presumably innocent man of the constitutional

13

oe

guarantee against being placed twice in jeopardy is

wrong.

The trial judge did not question the jury

to determine if anyone was affected by seeing the

defendants in shackles. He did not consult the

holdings of precedent cases of the Ninth Circuit,

nor the United States Supreme Court.

A. THE DECISION IS CONTRARY TO

UNITED STATES SUPREME COURT

STANDARD PERMITTING MISTRIAL

ONLY IN EXTRAORDINARY AND

STRIKING CIRCUMSTANCES.

Discretion to discharge a jury before it

has reached a verdict is to be exercised only in

very extraordinary and striking circumstances,

Downum v. United States, 372 U.S. 734, 83 S.Ct.

1033, 10 L.Ed.2d 100.

The record supports the fact that the

judge did not apply this dictum to this case.

14

Awe San, 2

B. THE DECISION IS CONTRARY TO

NINTH CIRCUIT DECISIONS WHICH

DO NOT AUTHORIZE A MISTRIAL

MERELY BECAUSE DEFENDANTS

ARE SEEN IN SHACKLES.

The government, through counsel,

advised the court of case law in the Ninth Circuit

which was ignored by the trial judge.

If this court will reconsider the facts of

this case in light of the material facts and the issue

of “Fair Trial", the decision of the trial court and

the Ninth Circuit cannot be upheld.

The Ninth Circuit in United States v.

Acosta-Garcia, 448 F.2d 395 (9th Cir. 1971)

states. ..

"We do not agree. The mere

fact that some prospective members

of the jury may have seen appellants

in handcuffs is not so prejudicial as

to require a mistrial, Loux v. United

States, 389 F.2d 9IT (%h Cir.

T9368), particularly where, as here,

the trial court took great pains to

explain that this occurrence was to

have no bearing on the jury's con-

sideration of the merits of the case

against appellants."

15

United States v. Figueroa-Espinoza,

F.2d 590 (9th Cir. 1972) holds. . .

"The fact that some of the

jurors may have seer appellants in

handcuffs was not so inherently

prejudicial as to require a mistrial

without more. See United States v.

Acosta-Garcia, 448 F.

Cx. iii) In this case the

incident was not an aggravated one.

Appellants did not request a correc-

tive instruction. In all the circum-

stances we conclude that the district

court did not abuse its discretion in

denying the motion."

Corley v. Cardwell, 544 F.2d 349

Cir. 1976) holds:

(8th Cir.

". , .Corley asserts that his expo-

sure to the jury in manacles on two

occasions deprived him of due pro-

cess. Corley made motions for a

mistrial based on these alleged

exposures. After an _ evidentiary

hearing, the court below found that

on one occasion Corley was exposed

to the jury in manacles and that it

was possible that some jurors may

have seen him in manacles on

another occasion. The trial court

found that but one juror had seen

Corley in manacles and that there

was no prejudice.”

454

(9th

In United States v. Leach, 429 F.2d 956

1970) the court states:

"|. .There is no merit to the

contention that the court. should

have granted a mistrial because some

ciel

of the jurors saw the defendants in

handcuffs as they passed through

the hall. Roy Roberts was out on

bond and was not handcuffed. It is

a normal and regular as well as a

highly desirable and _ necessary

practice to handcuff prisoners when

they are being taken from one place

to another, and the jury is aware of

this. This is necessary to prevent

an escape and possible injury to

others in an escape attempt. It

appears that from the construction of

the building it was necessary for the

jurors and the defendants to use the

same corridor to get to the court-

room. No prejudice was shown and

the court did not err in refusing to

grant a mistrial."

The Government supplied the Trial Judge

with law on the subject of mistrial.

Did the Government supply the Judge

with the aforementioned cases. Did the Judge

consider what other court's had done in the past?

The Judge did not act rational and re-

sponsible in ignoring the government's counsel's

advise to not mistry the case.

The record and the material facts do not

support the District Court's determination that

potential juror bias justified a mistrial. Manifest

necessity did not exist.

17

C. THE PANEL DECISION IS CON-

TRARY TO A DECISION OF THE

UNITED STATES SUPREME COURT

DECIDED AFTER THE BRIEFS IN

THIS CASE.

The decision by the United States Su-

preme Court on March 26, 1986, in the case,

Holbrook v. Flynn, U.S. , 38 Crim. Law

Reporter 3217 concerns the issue of Fair Trial.

This decision was rendered after briefs in this case

were filed.

In this case, four state troopers in

uniform and armed were stationed in the front row

of the spectors section co supplemer: the Court

Security Force.

The defendants alleged prejudice in that

they could not get a fair trial. The United States

District Court for the District of Rhode Island

denied respondents writ. The Court of Appeals,

First Circuit, reversed the District Court.

Writ of Certiorari was granted by the

United States Supreme Court. The United States

18

cme

Supreme Court held in_ Holbrook v. Flynn,

Supra. . .

"The troopers' presence at

respondent's trial was not so inher-

ently prejudicial that he was thereby

denied his constitutional right to a

(a) While an accused is enti-

tled to have his guilt or innocence

determined solely on the basis of

evidence introduced at trial, this

does not mean that every practice

tending to single out an accused

from everyone else in the courtroom

must be struck down.

(b) The conspicuous, or at

least noticeable, presence of guards

in a courtroom during trial is not

the sort of inherently prejudicial

practice that should be permitted

only where justified by an essential

state interest. Such presence need

not be interpreted as a sign that the

defendant is particularly dangerous

or culpable. Jurors may just as

easily believe that the guards are

there to prevent outside disruptions

or eruptions of violence in the

courtroom. Reason, principle, and

human experience counsel against a

presumption that any use of identifi-

able guards in a courtroom is inher-

ently prejudicial. In view of the

variety of ways in which such

guards can be deployed, a case-by-

case approach is more appropriate.

(c) Whenever a courtroom

arrangement is challenged as inher-

ently prejudicial, the question is not

whether the jurors articulated a

19

consciousness of some prejudicial

effect, but rather whether there was

an unacceptable risk of prejudice.

In this case, there is no justification

for finding such an _ unacceptable

risk based on the troopers’ pres-

ence. Even if the jurors had been

aware that the deployment of troop-

ers was not common practice, there

is no reason to believe that the

troopers’ presence tended to brand

respondent with guilt. Their pres-

ence was unlikely to have been taken

as a sign of anything other than a

normal official concern for safety and

order. Moreover, even if a slight

degree of prejudice could be attrib-

uted to the troopers’ presence,

sufficient cause for their presence

could be found in the State's need to

maintain custody over defendants

who had been denied bail. The

troopers’ presence was intimately

related to the State's legitimate

interest in maintaining such custody

and thus did not offend the Equal

Protection Clause by arbitrarily

discriminating against those unable

to post bail or to whom bail has been

denied."

A rational responsible person, such as

those that comprised the jury in this case, are well

aware that people who are charged with a crime are

put in jail. That people who are in jail are to be

detained. That the persons who are charged with

the safety and security of the detainee must use

safeguards and that handcuffs and shackles are

20

part of every day life in our system of jails and

prisons.

To determine that Jarvis could not get a

fair trial was an error by the District Court.

The Judge abused his discretion as can

be seen by the holding of the United States Su-

preme Court.

The Fifth Amendment of the United States

Constitution states:

". , .{NJor shall any person be

subjected for the same offense to be

twice put in jeopardy of life or

limb."

The fundamental nature of the guarantee

against double jeopardy can hardly be doubted. Its

origins can be traced to Greek and Roman times,

and it became established in the common law of

England long before this nation's independence. As

with many other elements of the common law, it was

carried into the jurisprudence of this Country

through the medium of Blackstone, who codified the

doctrine in his Commentaries. The plea of autre-

foits acquit, or a former acquittal, he wrote, "is

grounded on this universal maxim of the common law

21

of England, that no man is to be brought into

jeopardy of his life more than once for the same

offense.'' The idea, one that is deeply ingrained in

at least the Anglo-American system of juris-

prudence, is that the State with all its resources

and power should not be allowed to make repeated

attempts to convict an individual for an alleged

offense, thereby subjecting him to embarrassment,

expense and ordeal and compelling him to live in a

continuing state of anxiety and insecurity, as well

as enhancing the possibility that even though

innocent he may be found guilty. This underlying

notion has from the very beginning been part of

our constitutional tradition. Like the right to trial

by jury, it is clearly "fundamental to the American

scheme of justice. Benton v. Maryland, 89 S.Ct.

2056 (1969).

In Downum, the Supreme Court stated,

"We resolve any doubt in favor of the liberty of the

citizen, rather than exercise what would be an

unlimited, uncertain, and arbitrary discretion."

22

WHERE A MISTRIAL IS DECLARED

BECAUSE OF ERRORS OR OMIS-

SIONS BY THE COURT OR THE

GOVERNMENT RATHER THAN MAT-

TERS BEYOND THE CONTROL OF

EITHER, THE STANDARD OF RE-

VIEW IS STRICT SCRUTINY.

ARIZONA V. WASHINGTON and

JARAMILLO INVOLVED MISTRIALS

CAUSED BY THE DEFENSE OR

MATTERS BEYOND THE CONTROL

OF THE PROSECUTION OR THE

COURT AND WERE ERRONEOUSLY

.APPLIED IN THE PANEL DECISION.

The panel decision relied upon Arizona

v. Washington, 434 U.S. 497, (1978), and United

States v. Jaramillo, 745 F.2d 1245 (9th Cir. 1974)

to justify the application of "limited scrutiny" in

this case. In Arizona, a mistrial was declared

because of an improper mistrial by the defense.

Jaramillo, a mistrial was declared because the trial

judge had been indicted, a matter clearly not within

23

his control. In the present case, a mistrial was

declared because the Marshal's office negligently

and carelessly allowed jurors to be seen in shac-

kles.

Carelessness by government is within

both the court’s and the government's control.

Certainly this carelessness should not be allowed to

be utilized as a justification for denying defendant

his constitutional right to proceed with the trial.

The panel decision cites United States v. |

Jaramillo, (panel decision at page 5) for the

proposition that where the decision is based on jury

bias, the court will overturn the decision only if

the trial judge's decision was irrational or irrespon-

sible. This language is not included in Jaramillo,

and jury bias was not even in issue. The only

language resembling such a statement is the follow-

ing:

"Even where a decision is given

great deference, however, this court

may overturn it if it is irrational or

irresponsible."

24

B. THE PANEL DECISION IS CON-

TRARY TO THE REASONING IN

OTHER APPELLATE DECISIONS

WHICH CAREFULLY BALANCE THE

NEED FOR A MISTRIAL AGAINST

THE RIGHTS OF THE DEFENDANT

TO PROCEED TO TRIAL.

In United States v. Sisk, 629 F.2d 1174,

1178 (6th Cir. 1980) cited by the Government at

page 8 of its brief, the Court states:

"But a mistrial is not ‘manifestly

necessary’ simple because the trial

judge thinks juror prejudice has

arisen; on appeal the source of the

prejudice must also be considered in

deciding whether retrial of defen-

dants is permissible under the Fifth

Amendment. '

"When it is a trial judge's uninvited

error which gives rise to juror

prejudice, the judge may not dis-

charge the jury and subject defen-

dants to a second trial. A contrary

rule would enable judges to perfect

trial records in an attempt to ensure

‘irreversible convictions when they

so desired.’ Such a rule would also

allow trial court's total freedom,

through the purposeful commission of

error, to harrass defendants with

multiple trials."

25

In United States v. Smith, 62] F.2d 350

(9th Cir.) the Ninth Circuit Justices Thornberry,

Choy and Pragerson, stated: _—

"When a court, in the absence of

manifest necessity declares a mis-

trial, without the defendant's con-

sent, the double jeopardy clause

forbids retrial."

"The record gives no indication that

the court here even considered the

possibility of a continuance before

ordering a mistrial. Since the court

did not consider, or have before it

the facts necessary for a thorough

consideration of, an obvious alterna-

tive to a mistrial, we cannot say that

there was a ‘manifest necessity’ to

terminate the trial at that time.'

In United States v. McKoy, 591 F.2d 218 i

(3d Cir. 1979) the Third Circuit speaks to the

considerations that must be given the Defendant:

"The Supreme Court recently enu-

merated some of the t

interests served by the Double

Jeopardy Clause in: the court's su

esponte declaration of a mistrial over

a defendant's objection.

Because jeopardy attaches before the

judgment becomes final, the constitu-

tional protection also embraces the

defendants’ valued right to have his |

trial completed by a _ particular |

tribunal. The reasons why this |

‘valued right’ merits constitutional |

protection are worthy of repetition.

Even if the first trial is not

26

sissies

completed, a second prosecution may

be grossly unfair. It increases the

financial and emotional burden on the

accused, prolongs the period in

which he is stigmatized by an unre-

solved accusation or wrongdoing,

and may even enhance the risk that

an innocent defendant may be con-

victed. The danger of such unfair-

ness to the defendant exists whenev-

er a trial is aborted before it is

completed. Consequently, as a

general rule, the prosecutory is

entitled to one, and only one, op-

portunity to require an accused to

"Under the Court's analysis in Jorn,

supra, the government’ generally

must demonstrate that, under the

circumstances confronting the trial

judge, he had no alternative to the

d ation of a mistrial. 400 U.S.

at 487, 91 S.Ct. 547. See also

Arizona v. eington. supra,

at ~ Ct. ; and

only by considering and exhausting

all other possibilities can the judge

ensure that the defendant has re-

ceived the full protection of the trial

court, our duty is to see that alter-

natives to declaring a mistrial were

completely canvassed. See

Dunkerlyey v. Hogan, 5/9 F.2d I@I,

; United States

v. Grasso, 552 F.2d 46, 52 (2d Cir.

1977); United States v. Tinney, 473

F.2d 1085, ir. cert

denied, 412 U.S. 928, 93 S.Ct.

2752, 37 L.Ed.2d 156 (1973)."

27

———E**“eeeeeee aaa a...

CONCLUSION

If this court will consider the facts of

this case in light of the material facts and the issue

of "Fair Trial", a writ of certiorari to review the

decision of the Ninth Circuit Court of Appeals must

be granted to the petitioner, Richard A. Jarvis.

Besides being petitioner's last resort, this

court is the only tribunal that can make a final

determination concerning the application and the

rights guaranteed a citizen under the United States

Constitution.

WHEREFORE, petitioner respectfully prays

that a writ of certiorari be issued to vacate and/or

to review the decision of the Ninth Circuit Court of

Appeals.

Respectfully submitted,

FRANK A. RUBINO, ESQUIRE

3370 Mary Street.

Coconut Grove, FL 33133

(305) 444-5411

28

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of the foregoing was mailed to Gordon

Greenberg, Assistant United States Attorney, 312

North Spring Street, Los Angeles, California,

90012, and to the Solicitor General, Department of

Justice, Washington, D.C., 20530, this i day of

July, 1986.

FRANK A. RUBINO, ESQUIRE

29

ee

) i ——

IN THE

Supreme Court of the United States

OCTOBER, TERM, 1986

UNITED STATES OF AMERICA,

Respondent,

vs

RICHARD A. JARVIS,

Petitioner,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

APPENDIX

FRANK A. RUBINO, ESQUIRE

3370 Mary Street

Coconut Grove, FL 33133

(305) 444-5411

Counsel for Petitioner

TABLE OF CONTENTS

PAGE

ORDER DENYING MOTION TO

DISMISS (District Court) 1

MEMORANDUM DENYING APPEAL

(Ninth Circuit) 3

PETITION FOR REHEARING

BY PANEL AND EN BANC

(Ninth Circuit) 12

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) No. CR 85-856-RMT

Plaintiff,

ORDER DENYING

vs MOTION TO DISMISS

RICHARD A. JARVIS,

Defendant.

me ee ae ee ee ee”

This matter having come before the court on

the motion by defendant Richard Jarvis to dismiss

the pending indictment against him on the basis

that a retrial after the previous declaration of

mistrial will violate his Double Jeopardy rights, and

this court having considered the pleadings and

other documents filed herein and having found that

the previous declaration of mistrial was based on

"manifest necessity,"’ to wit, prejudice by way of

guilt by association,

///

ee

ie ee

IT IS ORDERED that the motion by defendant

Richard Jarvis to dismiss the pending indictment

against him is respectfully denied.

Dated:, January 7, 1986.

(s) Robert M. Takasugi,

United States District Judge

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 86-5003

Vv. D.C.No.CR85-854-RMT

RICHARD A. JARVIS,

Defendant-Appellant. ) MEMORANDUM

)

)

)

)

)

)

)

)

)

)

)

Appeal from the United States District Court

for the Central District of California

Robert M. Takasugi, District Judge, Presiding

Argued and Submitted April 8, 1986

Pasadena, California

Before: WALLACE, HUG and NORRIS, Circuit Judges.

This is an appeal of the denial of a motion to

dismiss the indictment on double jeopardy grounds

after the declaration of a mistrial in a prior pro-

ceeding. The only issue on appeal is whether the

record reflects the kind of "manifest necessity"’ in

the declaration of the mistrial that is required to

avoid the bar of double jeopardy. We have

jurisdiction of the appeal of this pretrial order

pursuant to Abney v. United States, 431 U.S. 651,

655-56 (1977); United States v. Ajimura, 598 F.2d

510, 512 (9th Cir. 1979).

On September 4, 1985, defendant Richard

Jarvis ("Jarvis") and four others were indicted by

a federal grand jury for several narcotics-related

offenses. In the indictment, Jarvis is named as the

central figure in a scheme to distribute large quan-

tities of cocaine in Southern California.

On November 12, 1985, a jury was empaneled

and heard opening statements from the prosecution

and from the attorneys for each of the five defen-

dants. Two government witnesses were called and

testified. On the second day of trial, after the

lunch break, counsel for Jarvis's co-defendants

reported to the district court that all the jurors

accidentally met Jarvis's four co-defendants at the

elevator as they were being transported from the

courtroom; the co-defendants were heavily shackled

and chained together, and were under the guard of

several United States Marshals. The jurors stared

at the four defendants and evidenced a concerned

reaction.

The attorneys for the four co-defendants

argued that this confrontation would have a preju-

dicial effect on the jurors and would taint the

remainder of the trial. All four of Jarvis’s co-

defendants moved for a mistrial. At the initial

hearing on this matter, the Government argued

against a mistrial. : At this hearing, Jarvis's

counsel made the following remark: ''This does not

affect my client, Mr. Jarvis, who is out on bond

but, in a gesture of good faith, I would be happy

to proceed alone if the court grants a mistrial."

After hearing arguments, the district court

initially denied the mistrial motion, and the trial

continued. Approximately two hours later, the

district court recessed the proceedings and re-

quested counsel to enter chambers. In chambers,

the judge indicated that he was greatly concerned

by the defendants' motion for mistrial and requested

further research by the Government.

After hearing additional arguments on the

matter, the district judge declared a mistrial. In

reaching his decision, the district judge stated,

"after due reflection I believe that the defendants’

rights were compromised." The district court

stressed that what the jurors saw would have a

detrimental effect on rights of all of the defendants

to be presumed innocent of the charges. The

district court further expressly found that Jarvis's

right to a fair trial had been jeopardized because

the jurors would infer his "guilt by association"

with the other shackled defendants.

After the district judge reached this con-

clusion, Jarvis's counsel asked the judge if he

could comment further and Jarvis's counsel then

made the following remarks:

Very briefly, your honor,’ with

respect to Mr. Jarvis, the court is well

aware, for the sake of the record, Mr.

Jarvis did not ask for a mistrial and

specifically went against a mistrial.

Therefore, Mr. Jarvis will be through a

second and subsequent trial not by his

request.

Therefore I would ask the court that

the remedy for this would be a dismissal

as to Mr. Jarvis or to proceed with this

jury.

After hearing these comments, the district judge

reaffirmed his decision to grant a mistrial. Prior to

the rescheduled trial, Jarvis filed a motion to

dismiss the indictment on double jeopardy grounds.

On January 7, 1986, the district court denied

Jarvis's motion, ruling that “manifest necessity"

warranted dismissing the jury. This appeal fol-

lowed.

In a jury trial, "jeopardy attaches when the

jury is empaneled and sworn." Crist v. Bretz, 437

U.S. 28, 29 (1978). Even after jeopardy attaches,

however, reprosecution is not barred if the trial

was terminated because of "manifest necessity."

Arizona v. Washington, 434 U.S. 497, 505 (1978).

The record must support the explicit or implicit

finding of manifest necessity. United States v.

Sanders, 591 F.2d 1293, 1299 (9th Cir. 1979).

The degree of deference to be accorded the

trial judge's determination of manifest necessity

varies with the circumstances of each case.

Arizona v. Washington, 434 U.S. at 507-10; United

States v. Jaramillo, 745 F.2d 1245, 1248 (9th Cir.

1984), cert. denied, 105 S.Ct. 2142 (1985). The

strictest scrutiny is applied to the district court's

determination where the accused claims that the

mistrial was intentionally caused by the prosecution.

Arizona v. Washington, 434 U.S. at 507-08. At the

other end of the spectrum, great deference is

accorded the trial judge's conclusion that a mistrial

is required because of a deadlocked jury. Id. at

509. Great deference is also warranted when the

trial judge decides to declare a mistrial because of

possible juror bias. Id. at 511; Sanders, 591 F.2d

at 1297.

In Arizona v. Washington, the Supreme Court

held that even though a mistrial was not necessary,

the evenhanded administration of justice requires

that the reviewing court accord the highest degree

of respect to the trial judge's evaluation of the

likelihood that the impartiality of one or more jurors

may have been affected by the improper comment

Arizona v. Washington, 434 U.S. at 51l. However,

even in according this great deference to the trial

judge, this court will overturn a decision that is

premised on jury bias if it can be shown that the

trial judge's decision was irrational or irresponsible.

Jaramillo, 745 F.2d at 1248.

Since the incident at the elevator was in-

advertent, no prosecutorial misconduct was in-

volved; therefore, the highest degree of deference

is accorded the trial judge's determination that a

mistrial is necessary to remedy potential jury bias.

Arizona v. Washington, 434 U.S. at 51l.

In this case, the district court carefully

considered the matter and, after due reflection,

declared a mistrial. The district court concluded

that Jarvis's rights also were compromised by the

incident at the elevator since Jarvis was a Co-

defendant in the trial and the jury could well infer

guilt by his association with the other shackled

defendants.

There is no showing in the record that the

counsel for Jarvis made any arguments to the

district judge specifying why the incident at the

elevator would not result in prejudice toward Jarvis

even though the charge was that he was closely

associated with the other defendants. On appeal,

Jarvis contends that the inadvertent contact at the

elevator was not prejudicial to him and was, in

fact, beneficial to his case because he was raising

an entrapment defense and fully intended to admit

his association with the other defendants. This

argument, advanced for the first time on appeal, is

not persuasive. It is obvious that a prior asso-

ciation with the four defendants would tend to

undercut his entrapment argument that he lacked a

predisposition to commit the crime. The district

court had an obligation to consider these circum-

stances in order to preserve the institutional integ-

rity of a fair trial.

The decision of the district court clearly was

not irrational or irresponsible. The district court

carefully weighed the alternatives. It was a rea-

sonable conclusion of the district court that the

possible jury bias resulting from the incident could

adversely affect Jarvis's opportunity for a fair trial

because he was named as a central figure in the

narcotics transactions. The district court's deter-

mination that potential juror bias justified a mistrial

under the manifest necessity standard was rational

and adequately supported by the record. We

therefore affirm the district court's order denying

10

Jarvis's motion to dismiss the indictment on double

jeopardy grounds.

AFFIRMED .*

*This disposition is not appropriate for publication

and may not be cited to or by the courts of this

circuit except as provided by 9th Cir. R. 21.

11

PETITION FOR REHEARING

BY PANEL AND EN BANC

The Petition was filed on May 5, 1986. On

May 14, 1986, an oral denial was rendered by the

Ninth Circuit Court of Appeals. No written or

recorded copy of this denial was made.

Respectfully submitted,

FRANK A. RUBINO, ESQUIRE

3370 Mary Street

Coconut Grove, FL 33133

(305) 444-5411

12

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