Petition for Writ of Certiorari — Arnaiz v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES OF AMERICA,

Respondent,

vs

ISMAEL FELIPE ARNAIZ

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

3940 Main Highway

Coconut Grove, FL 33133

(305) 444-5411

Counsel for Petitioner

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES OF AMERICA,

Respondent,

vs

ISMAEL FELIPE ARNAIZ

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

3940 Main Highway

Coconut Grove, FL 33133

(305) 444-5411

Counsel for Petitioner

QUESTIONS FOR REVIEW

DID THE COURT ERR IN DENYING THE MO-

TION OF ISMAEL FELIPE ARNAIZ, TO DIS-

MISS, BASED ON GROUNDS OF DOUBLE

JEOPARDY?

DID THE COURTS DETERMINATION THAT A

MISTRIAL WAS REQUIRED, OVER OBJECTION

OF ISMAEL FELIPE ARNAIZ, MEET THE STAN-

DARDS OF "MANIFEST NECESSITY"?

DID THE COURTS DECISION CONFLICT WITH

DECISIONS OF THE UNITED STATES SUPREME

COURT?

IS IT A VIOLATION OF THE DOUBLE JEOPAR-

DY CLAUSE OF THE UNITED STATES CON-

STITUTION TO ALLOW THE GOVERNMENT TO

RETRY ISMAEL FELIPE ARNAIZ

TABLE OF CONTENTS

1 QUESTION FOR REVIEW

2 TABLE OF AUTHORITIES iv

3 DECISIONS NINTH CIRCUIT

COURT OF APPEAL 1

4 GROUNDS FOR JURISDICTION 1

5 CONSTITUTIONAL PROVISIONS 3

6 STATEMENT OF CASE +

7 JURISDICTION OF DISTRICT COURT 9

8 ARGUMENT:

INTRODUCTION 10

| DID THE COURT ERR IN

DENYING THE MOTION OF

ISMAEL FELIPE ARNAIZ,

TO DISMISS, BASED ON

GROUNDS OF DOUBLE

JEOPARDY? 16

I! BID THE COURTS DETER-

MINATION THAT A MIS-

TRIAL WAS REQUIRED,

OVER OBJECTION OF

ISMAEL FELIPE ARNAIZ,

MEET THE STANDARDS OF

"MANIFEST NECESSITY"? 18

10

TABLE OF CONTENTS

Continued

DID THE COURTS DECISION

CONFLICT WITH DECISIONS

OF THE UNITED STATES

SUPREME COURT?

IS IT A VIOLATION OF

THE DOUBLE JEOPARDY

CLAUSE OF THE UNITED

STATES CONSTITUTION

TO ALLOW THE GOVERN-

MENT TO RETRY ISMAEL

FELIPE ARNAIZ

CONCLUSION

CERTIFICATE OF SERVICE

PAGE

20

22

24

26

TABLE OF AUTHORITIES

FIFTH AMENDMENT OF THE

UNITED STATES CONSTITUTION

ABNEY v. UNITED STATES,

‘ 77)

ARIZONA v. WASHINGTON,

434 U.S. 497 (1978)

DOWNUM v. UNITED STATES

372 U.S. 734

EGAN v. CITY OF AURORA,

ILLINOIS, 365 U.S.

514, (1961)

UNITED STATES v. JORN,

UNITED STATES v. PEREZ,

owe eat 3

6 L.Ed. 165 (1824)

WILKINSON v. UNITED STATES,

365 U.S. 399, (1961)

UNITED STATES v. DAVIS,

4 t ir. 1981)

17

17

TABLE OF AUTHORITIES

Continued

10 UNITED STATES v. McKOY,

591 F.2d 218 (3rd Cir. 1979)

11 UNITED STATES v. SMITH,

621 F.2d 350 (9th Cir. 1980)

12. TITLE 28 UNITED STATES

CODE, UNITED STATES

SUPREME COURT RULE 17

PAGE

22

22

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES OF AMERICA,

Respondent,

vs

ISMAEL FELIPE ARNAIZ

Petitioner,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PETITION

Petitioner Ismael Felipe Arnaiz 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.

a iia diniaiianaiaaaiaiiiiaeae

MEMORANDUM AND DECISIONS OF THE

NINTH CIRCUIT COURT OF APPEALS

The Ninth Circuit Court of Appeals issued

an unpublished memorandum under date of Janu-

ary 5, 1987, denying the appeal of Ismael F. Arnaiz

from the District Court's denial of his Motion to

Dismiss on grounds of double jeopardy. The Ninth

Circuit's memorandum is enclosed in the appendix to

this petition.

A Petition For Rehearing By Panel And

Suggestion For Hearing En Banc was rejected by

the Ninth Circuit Court on March 5, 1987. This

Petition for Writ of Certiorari follows.

JURISDICTION

This case should be reviewed 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. The Circuit Court's

decision was rendered on January 5, 1987, and the

Petition for Rehearing and Suggestion for Review

En Banc was denied by the court on March 5, 1987.

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 wiil 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.

"[Njor 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

interest in enforcement of criminal

laws."

ia is |

STATEMENT OF CASE

The Defendant, Ismael Felipe Arnaiz, and

twenty-three (23) other individuals were indicted

by a federal grand jury in the District of Arizona

on March 20, 1984 for various narcotics-related and

currency violations.

The indictment alleged the existence of a

large narcotics importation and distribution conspir-

acy spanning four (4) years. Trial commenced on

April 2, 1985 in the United States District Court for

the District of Arizona before the Honorable Richard

Bilby.

The government emphasized to the jury

that unindicted co-conspirators Larry Bridges and

Russell Crump played an integral role in the inves-

tigation leading to Defendants' arrest. The govern-

ment's evidence also included testimony and reports

of personnel from the Drug Enforcement Adminis-

tration (DEA), Internal Revenue Service (IRS),

United States Customs Department (Customs),

Florida Department of Law Enforcement (FDLE),

City of Miami Police Department, and the Federal

Bureau of Investigation (FBI).

Part of the government's argument and

proof was that there was a connection between two

alleged narcotics organizations: one, which was

called the Barona group which was the subject of

an investigation by Marion County, Florida, Sheriff

Deputy Patty Lumpkin; and, two, the Arnaiz group

which were from Miami, Florida.

Case agent Harold Davidson observed

co-defendant Raul Rodriguez meet with co-

conspirators Simcha Kelman, Randy Newel, and Jay

Betancourt in Tuscon in May of 1982. This meeting

was allegedly for the purpose of importation and

distribution of cocaine and marijuana on behalf of

Luis Villageliu, known as Mr. B., who was a part

of the Arnaiz organization. Davidson also inves-

tigated a Mr. B. known as Hector Barona, Sr., and

his alleged narcotics organization. According to

Davidson, Jay Betancourt met with a "Frank" on

behalf of a Mr. B. in Phoenix, Arizona, on June

25, 1982. The alleged purpose of this meeting, as

established by Davidson through informant Larry

Bridges, telephone communications, and photograph-

ic surveillance was to set up a narcotics importation

and distribution ring in Arizona. Davidson later

established that the two Mr. B. organizations were

completely separate and that the "Frank" in Tucson

was Frank Pogliani,. Hector Barona's right-hand

man. Davidson prepared an investigative report on

the Luis Villageliu meeting and organization which

Sheriff's Deputy Patty Lumpkin of Marion County,

Florida used to obtain a wiretap on Hector Barona,

Sr. in Marion County, Florida. Neither Davidson,

nor the government in any capacity, offered the

report which contained this false information to

defense counsel. In fact, only through a separate

investigation on the part of Frank Rubino, counsel!

for Bacallao, did the mishap come to light.

On May 4, 1985 Deputy Lumpkin testified

to explain the two Mr. B's situation and the fact

that a wiretap was authorized based on an affidavit

she prepared using false information provided by

case agent Davidson.

Harold Davidson testified on May 1 and

May 2. On May 1, on cross-examination by counsel

for Defendant Arnaiz, Davidson testified that he

was not aware of the details surrounding the killing

of two people by Larry Bridges, the government's

main informant. Davidson testified that he did not

notify authorities in Mexico about the _ killings

because it would not have been helpful to them and

because he did not think any United States laws

were violated.

On May 4, 1985, Deputy Lumpkin men-

tioned that Geto, "within the last thirty days"

called her to explain some confusion surrounding

the killings and only through subsequent re-

examination of Lumpkin on May 15 did counsel for

the Defendants and the District Court jearn that

Davidson called Lumpkin on the night of May 1

during the middle of cross-examination of the case

agent.

On May 13, 1985, the trial judge dis-

missed the case against co-defendant Gregory

Clifford after the court discovered that the FBI

"obliterated" the sequestration rule. At this time

defense counsel moved to dismiss the case against

all remaining defendants, due to the prosecutorial

misconduct. The trial judge, in responding to

counsel for Defendant Arnaiz's request to specifical-

ly admonish Davidson and the remaining government

witnesses concerning the Rule, stated that they

needed no warning, and if one more Rule violation

was discovered, the case would be dismissed against

all remaining defendants, with prejudice.

On May 16, the egregious nature of case

agent Davidson's Rule violation (withholding of

crucial Brady material) and the FBI's withholding

and late disclosure of Brady material (the FBI had

reports describing co-defendant Raul Rodriguez as

a person "obviously not the man in the courtroom")

caused the trial judge to terminate the case. The

trial judge specifically found violations of Brady

and the Rule and at this time declared a mistrial.

The defendants moved for dismissal of the

case with prejudice since the trial judge had in-

dicated that he would do so if any more violations

occurred. At this time, all defendants objected to

the granting of a mistrial sua sponte.

On January 13, 1986 a hearing was held

on the motion to dismiss the indictment on grounds ,

of double jeopardy. Judge Bilby denied the motion

stating that on May 16, 1985 there was "manifest

necessity" to grant the mistrial.

Appeal to the Ninth Circuit Court on the

issue of double jeopardy resulted in denial. . Peti-

tion for Review and Suggestion for Rehearing En

Banc was also denied. This Writ of Certiorari

follows.

The jurisdiction of the District Court for

the District of Arizona was invoked by the indict-

ment of Ismael F. Arnaiz, charging him with various

violations of Title 18, Title 21 and Title 31 of the

United States Code.

ARGUMENT

Introduction

This case involved a six-week trial in

which the government called approximately 100

witnesses and admitted over 500 exhibits.

The government alleged that one overall

conspiracy existed, however, as the evidence

unfolded, it depicted two different groups of indi-

viduals and two conspiracies.

The evidence and testimony disclosed that

case agent Harold Davidson and Deputy Patty

Lumpkin of the Marion County Florida Sheriff's

Department had, in fact, traded information about

the two separate groups.

Information from Davidson to Lumpkin was

withheld from the prosecutor and therefore not

disclosed to defense counsel as Brady material.

- It was further learned that Deputy

Lumpkin had used the information she received from

Agent Davidson in order to obtain a wiretap for the

Hector Barona telephone, a member of the other

10

, ,

group. Deputy Lumpkin obtained the wiretap for

the Barona organization in April, 1983. After

several more contacts between Agent Davidson and

Deputy Lumpkin, Deputy Lumpkin testified that she

eventually learned that Agent Davidson was now

claiming that the subject Tucson trip was the basis

for the wiretap on behalf of the Arnaiz organization

rather than the Barona organization as first indicat-

ed by Davidson. Deputy Lumpkin learned of this

change in information after she obtained her search

warrant and after Petitioner and others were indict-

ed in this case.

In addition to the government's failure to

disclose the wiretap affidavit of Patty Lumpkin to

the defense counsel, the trial court found other

violations of Brady. An FBI report delivered to

the court on the last day of trial indicted that a

description was given of Defendant Rodriguez.

This description was completely contrary to the

actual appearance of Rodriguez. The report would

indicate that perhaps the Raul mentioned several

times in earlier testimony and reports was not the

11

same Raul as the one who was on trial for the

offenses alleged.

To exacerbate these problems, there were

several violations of the rule of exclusion by the

government agents. On May 13, 1985, the trial

court dismissed with prejudice the charges against

co-defendant, Gregory Clifford. The trial court

dismissed these charges after it learned that FBI

agents had violated the rule of exclusion by talking

with each other about their testimony outside of the

courtroom. Mr. Clifford had called these agents as

possible witnesses to show that he was, in fact, a

police informer and not a co-conspirator. The

agents talked about their testimony at length before

being called to testify in behalf of Mr. Clifford.

Following this revelation the trial court stated on

the record that if there were any more violations of

the rule of exclusion, the entire case against all of

the defendants would be dismissed. The trial court

had on the third day of trial warned the prosecutor

and Agent Davidson that if there was a violation of

the rule, he would lose his case.

12

On May 15, 1985, it came to light that

Agent Davidson had again violated the rule by

having a_ telephone’ conversation with Deputy

Lumpkin during the trial. The defense was able to

present the following evidence: On May 1, 1985,

Agent Davidson was on the witness stand and being

cross-examined about his activities after he learned

that the government's second principal informant,

Larry Bridges, had possibly murdered two Ameri-

cans in Mexico. Agent Davidson testified that after

he learned of this’ information, he immediately

telephoned Agent Lumpkin in Florida concerning

that information. Actually, Agent Davidson did not

relate the information concerning the murders to

Deputy Lumpkin until May 1, 1985, at approximately

11:00 P.M. Tucson time (approximately 2:00 A.M.

Miami time). Agent Davidson, after testifying on

May 1 in Tucson, called Deputy Lumpkin in Miami

and discussed the testimony concerning the murders

by Larry Bridges.

Deputy Lumpkin acknowledged to the trial

court that Agent Davidson had called her late that

night and told her that she may be a witness and

13

Sein

gave her additional information about the murders

committed by Larry Bridges. Agent Davidson also

told Deputy Lumpkin during that late night tele-

phone conversation that she would probably be

questioned about her information concerning the

Florida wiretap affidavit. Agent Davidson attempted

to explain his late night call by claiming that he

was merely returning an earlier call made by

Deputy Lumpkin. The District Court found that

Agent Davidson's call to Deputy Lumpkin during the

trial was, indeed, a violation of the rule of exclu-

sion.

On May 16, 1985, the trial court declared

a mistrial over defendants' objections. The Ninth

Circuit Court of Appeal has upheld the action of

the trial court.

The present case is appropriate for a

hearing by this court because it is one of great :

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

14

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

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

15

district judge to imagine a rationale to justify a

patently irrational decision.

On the day of the mistrial the trial court

did not find "manifest necessity", he specifically

found violations of Brady and the Rule.

| LIMITED SCRUTINY IS NO SCRU-

TINY, A TRIAL COURT SHOULD

NOT BE ALLOWED TO RATIONALIZE

A VIOLATION OF THE CONSTITU-

TION, RATIONALIZATION IS IRRE-

SPONSIBLE:

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

16

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

guarantee against being placed twice in jeopardy is

wrong.

The manifest necessity standard was first

announced by the United States Supreme Court in

United States v. Perez, 22 U.S. (9 Wheat) 579,

580, 6 L.Ed. 165 (1824):

"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. . ."

The standard of review for the granting

of a mistrial is whether the district court abused its

17

discretion. United States v. Davis, 663 F.2d 824,

833 (9th Cir. 1981); Cawley, 630 F.2d at 1348.

The double jeopardy clause of the Constitution may

preclude the retrial of a defendant if a mistrial has

been declared without the consent of the defendant

and in the absence of a manifest necessity.

Arizona v. Washingion, supra. As long as_ the

record reflects a manifest necessity, it is not

essential that the district court state that the

mistrial is being declared due to a manifest necessi-

ty. Washington, 434 U.S. at 517-518.

I THE DECISION IS CONTRARY TO

THE UNITED STATES SUPREME

COURT STANDARD PERMITTING

MISTRIAL ONLY IN EXTRAORDI-

NARY AND- STRIKING CIRCUM-

STANCES

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.

18

The record supports the facts that the

judge did not apply this standard to the ‘instant

case.

The opinion of the Ninth Circui: Court

filed under date of January 5, 1987, at page 4,

states.

"Although the matter is not free

from doubt, we find that the requi-

site manifest necessity existed in

this case. The district judge found

that the violations of both Brady and

the witness sequestration rule,

although probably good faith mis-

takes, affected the defense lawyers'

ability to defend their clients, and

that there was no way he could cure

the resulting prejudice. Under

these circumstances the judge ex-

ercised sound discretion in declaring

a mistrial."

If this court found doubt and that the

actions of the government did affect the defense

lawyers' ability to defend their clients, how could

the judges decision be in compliance with the U.S.

Supreme Court's decision in Downum?

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."

19

lll 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

The panel decision relies upon Arizona v.

Washington, 434 U.S. 497, (1978) and attempts to

justify the application of "Limited Scrutiny". In

Arizona, mistrial was declared because of improper

conduct by the defense. In the present case, the

judge declared a mistria! based on the conduct of

the government.

The Court stated:

"All right. It is the finding of the

Court that there has been violation

of both Brady and the Rule in this

case.

The materials of the FBI file which

show that Mr. Clifford had described

Mr. Rodriguez as a six foot one, 220

pound man, when he is approximate-

ly five foot eight and 150 pounds are

obviously Brady material.

Likewise, the Lumpkin affidavit

constituted Brady material, and was

available at least during the Spring,

sometime between March and June of

1984, and should have been pro-

duced. ;

20

Agent Davidson's talk with Detective

Lumpkin, although the Court finds

that it was not done with any ulteri-

or or bad motive, nonetheless con-

stituted a violation of the rule.

| have tried to prepare this with

what | did in the Knoll case, and |

find that in Knoll | was able to cure

it by limiting such matters to the

tape, but that rebounded to the

Defendants in many ways.

Here there is no way that | can do

that, and | don't believe that Defen-

dants should have to bear the bur-

den of mistakes, whether in good or

bad faith, and | find in this in-

stance, | think they were probably

just good faith mistakes, but none-

theless they were mistakes. They

were mistakes that affect a lawyer's

ability to defend his client. (RT

5/16/85 2-3)."

Conduct by the government is within both

the court's and the government's control. Certainly

this type of conduct should not be allowed. Sanc-

tions should be imposed against the government and

surely not be utilized as a justification for denying

a defendant his constitutional rights.

21

IV THE PANEL DECISION IS _ CON-

TRARY TO THE REASONING IN

OTHER APPELLATE DECISIONS

WHICH HAVE CAREFULLY BAL-

ANCED THE NEED FOR A MISTRIAL

AGAINST THE RIGHTS OF THE

DEFENDANTS

In United States v. Smith, 621 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

(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 _ significant

interests served by the Double

Jeopardy Clause in the court's sua

sponte declaration of a mistrial over

a defendant's objection.

22

ole na ae ng

— ec iene te domed abdar i:

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 complet-

ed, 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

stand trial. Arizona v. Washington,

434 U.S. 497, 503-505, 98 S.Ct. 824,

54 L.Ed.2d 717 (1978)."

"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

declaration of a mistrial. 400 U.S.

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

Arizona v. Washington, supra, 434

U.S. at 515-16, 33 S.Ct. ; and

only by considering the 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, 579 F.2d 141,

23

146-47 (2d Cir. 19.3); United States

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

1977); United States v. Tinney, 473

F.2d 1085, 1089 (3d Cir} cert

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

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

CONCLUSION

It is respectfully submitted that the trial

judge's decision to grant sua sponte a mistrial was

done so without the consent of Mr. Arnaiz and was

predicated upon the judge's erroneous conclusion

that "Manifest Necessity" existed for the mistrial.

The judge should have dismissed this case

due to the governmental misconduct which is what

the trial judge stated on May 16, 1985. Timely

motions to dismiss based on double jeopardy

grounds were filed. When the trial judge denied

these motions after hearing on January 13, 1986, he

stated that manifest necessity now existed. This

rational is in retrospect and there wes not "Manifest

Necessity" to mistry this case on May 16, 1985.

The court now tries to justify its decision by

saying the defendant's attorney conduct’ was

24

unprofessional. The court had other alternatives,

but abused its discretion in granting the mistrial.

This court should review the appeal of

the Defendant, look at the issues again and see the

facts and case law that has been overlooked and

reverse the decision rendered on January 5, 1987.

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

Appeal.

Respectfully submitted,

FRANK A. RUBINO, ESQUIRE

3940 Main Highway

Coconut Grove, FL 33133

(305) 444-5411

25

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a true and

correct copy of the foregoing on this 4th day of

May, 1987 was mailed to:

Stephen M. McNamee,

United States Attorney

John M. Roll,

Assistant U.S. Attorney

United Bank Plaza Box 73

120 Broadway

Post Office Box 1951

Tucson, Arizona 85702-1951

A.P. Walters, Esquire

235 Cataloni Avenue |

Coral Gables, FL 33134 |

David Chesnoff, Esquire

3885 S. Decatur Bivd. #2000

Las Vegas, Nevada 89103

William H. Smith, Esquire

520 S. Fourth Street

Las Vegas, Nevada 89101

James D. Himelic, Esquire

10 East Broadway

Tucson, Arizona 85701

Charles Fried,

Solicitor General

Department of Justice

Washington, D.C. 20530

26

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES OF AMERICA,

Respondent,

vs

ISMAEL FELIPE ARNAIZ

Petitioner,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

APPENDIX

FRANK A. RUBINO, ESQUIRE

3940 Main Highway

Coconut Grove, FL 33133

(305) 444-5411

Counsel for Petitioner

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TABLE OF CONTENTS

| ORDER DENYING PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

(NINTH CIRCUIT)

I MEMORANDUM DENYING APPEAL (NINTH

CIRCUIT)

poses

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, ) Nos. 86-1034,

) 86-1035,

Vv. ) 86-1036,

) 86-1038,

ALFREDO MOYA, RAUL ) 86-1075,

ALFONSO RODRIGUEZ, ISMAEL )

FELIPE ARNAIZ, NELSON )

BACALLAO, STEPHEN FROMM, ) ORDER

)

Defendants-Appellants. )

)

)

Before: WRIGHT, SNEED, and KOZINSKI, Circuit

Judges.

The panel as constituted in the above

cases has voted to deny the petitions for rehearing

and to reject the suggestions for rehearing en

banc, filed January 20, 1987, =for appellant

Rodriguez in Case No. 86-1035, and for appellant

Arnaiz in Case No. 86-1036.

The full court has been advised of the

suggestions for en banc rehearing, and no judge of

the court has requested a vote on them. Fed. R.

App. P. 35(b).

The petitions for rehearing are denied,

and the suggestions for rehearing en banc are

rejected.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, ) Nos. 86-1034,

Cross-Appellant. ) 86-1035,

) 86-1036,

Vv. ) 86-1038,

) 86-1075,

ALFREDO MOYA, RAUL )

ALFONSO RODRIGUEZ, ISMAEL ) DC# CR-84-061-RMB

FELIPE ARNAIZ, NELSON )

BACALLAO, STEPHEN FROMM, _)

) MEMORANDUM*

Defendants-Appellants. )

Cross-Appellees. )

Ms )

Appeal from the United States District Court

for the District of Arizona

Richard M. Bilby, Chief District Judge, Presiding

Argued and Submitted November 10, 1986

San Francisco, California

Before: WRIGHT, SNEED, and KOZINSKI, Circuit

Judges.

Five codefendants appeal the district

court's denial their motions to dismiss_their indict-

ments on double jeopardy grounds. In a companion

¥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.

case, the government appeals the district court's

order regarding a sanction for a violation of the

Jencks Act. We affirm the district court's grant of

a mistrial rather than a dismissal and the district

court's sanction order limiting testimony.

bs

FACTS AND PROCEDURAL BACKGROUND

On March 20, 1984, the five codefendants

and nineteen others were charged in a sixteen-

count indictment. They were charged with various

controlled substance and currency violation § that

stemmed from an alleged conspiracy to import and

distribute cocaine, methaqualone, and _ marijuana.

During the course of the triai, the district court

found that the government violated the witness

sequestration rule on three occasions. The court

also found that the government committed two

violations of Brady v. Maryland, 373 U.S. 83

(1963), which requires the government upon specif-

ic request to disclose evidence favorable to the

accused. The court concluded that the Brady

violations "were probably just good faith mistakes,"

a

Sn sae owes

but that they were of the type that hurt the de-

fense.

It further ruled that the government had

violated Jencks Act, 18 U.S.C. § 3500. The vio-

lation occurred in the following manner. The

government attorney and a case agent took notes of

an interview with Thomas Knoll. Knoll had entered

into plea agreement in which he agreed to cooperate

with the government in two unrelated matters, and

to discuss the instant case with the prosecutor.

After an _ initial interview between Knoll and the

governmert attorney, Knoll's attorney requested

that a recording be made for Knoll's protection.

The government attorney, going through his notes,

summarized their previous discussion on_ tape.

Knoll stated that the attorney's summary was accu-

rate. The notes of the interview were subsequently

lost. Later, Knoll agreed to testify in the instant

case. The district court ruled that Knoll had, in

the recording, adopted the notes as his statement

within the meaning of the Jencks Act. The judge

sanctioned the government by _ limiting Knoll's

testimony to items covered in the recording. The

government appeals this sanction order.

On May 16, 1985, the district court sua

sponte granted mistrial because of manifest necessi-

ty. In a minute order, the court cited government

violations of Brady, the Jencks Act, and _ the

witness sequestration rule as reasons for declaring

the mistrial. At a hearing on January 13, 1986,

the court stated that defense counsel misconduct

contributed to the mistrial decision. After the

declaration of a mistrial, the defendants moved for

dismissal on grounds of double jeopardy. The

court denied their motion, and they appealed.

I.

DISCUSSION

A. Double Jeopardy

In a jury trial jeopardy attaches when the

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

U.S. 28, 29 (1978). However, reprosecution is not

barred if the trial was terminated because of "man-

ifest necessity." Arizona v. Washington, 434 U.S.

497, 505 (1978). The "words [manifest necessity]

do not describe a standard that can be applied

eel eller

mechanically or without attention to the particular

problem confronting the trial judge." Id. at 506.

The Court has stated that there are "degrees of

necessity," id. at 506, and that the degree of

deference to be given the trial judge's declaration

of a mistrial varies according to the circumstances

of each case, id. at 507-10. On the one hand,

decisions where the accused claims the mistrial was

intentionally caused by the prosecution are strictly

scrutinized; on the other hand, a trial judge's

decision that a mistrial is required because of a

deadlocked jury or possible juror bias is given

great deference. Id. at 507-11; see United States

v. Jarvis, 792 F.2d 767, 769 (9th Cir.), cert

denied, 107 S. Ct. 182 (1986). This case falls

som ,..here between these two ends of the spectrum.

Along the spectrum of trial problems that may

warrant a mistrial the difficulties that gave rise to

the mistrial in this case falls within an area in

which the trial judge is entitled to exercise his

sound discretion. ' See United States v. Jorn, 400

U.S. 470, 485-87 (1971) (plurality opinion),

modified on other grounds, Oregon v. Kennedy, 456

U.S. 667, 672-78 (1982).

Although the matter is not free from

doubt, we find that the requisite manifest necessity

existed in this case. The district judge found that

the violations of both Brady and the witness se-

questration rule, although probably good faith

mistake affected the defense lawyers' ability to

defend their clients, and that there was no way he

could cure the resulting prejudice. Under these

circumstances the judge exercised sound discretion

in declaring a mistrial.

The defendants understandably insist that

they should not be retried because government

misconduct was the primary cause of the mistrial.

The Supreme Court, however, has’ refused to

provide the shield of double jeopardy when a mis-

trial is due to mistakes of the government, United

States v. Jorn, 400 U.S. at 486, except when the

deciaration of mistrial was “on the basis of a rule

or a defective procedure that would lend itself to

prosecutorial manipulation," Illinois v. Somerville,

410 U.S. 458, 464 (1973). Given the absence of

intentional prosecutorial misconduct and the pros-

ecutor's plea for the case to go to the jury, we

conclude the prosecutorial lapses do not lend them-

selves to "prosecutorial manipulation." We hold that

the declaration of a mistrial rather than a dismissal

was proper.

We also note that the conduct of some of

the defense attorneys, although not cited as a

ground for the court's declaration of a mistrial until

nine months after the mistrial was granted, was

unprofessional, to say the _ least. The record

reveals that, on approximately thirty occasions, the

prosecutor complained to the trial court of the

heckling by certain defense counsel during the

prosecutor's arguments to the court. - We emphat-

ically disapprove of the misconduct of certain

defense counsel in this case. Attorneys of defen-

dants charged with crimes have a great stake in

maintaining the fairness of trials; they cannot

expect that society will long tolerate trials generally

unfair to the state. Defense counsel misconduct

contributed to the manifest necessity for a mistrial.

B. Sanction Under Jencks Act

The government raises two issues on

appeal from the Jencks Act sanction. It argues,

first, that the prosecutor's notes, taken during the

interview, were never adopted by the witness and

thus do not constitute Jencks Act material. The

government also argues that even if the notes were

Jencks Act material, the sanction for the govern-

ment's violation of the Jencks Act constitutes an

abuse of discretion. We have jurisdiction under 18

U.S.C. § 3731 to decide these issues because we

find that retrial of the defendants would not violate

the double jeopardy ciause. See United States v.

Layton, 720 F.2d 548, 553-54 (9th Cir. 1983), cert.

denied, 465 U.S. 1069 (1984).

A trial judge's decision that interview

notes are a witness's own statement is a question of

fact. We should not disturb his finding unless it is

clearly erroneous. United States v. Goldberg, 582

F.2d 483, 486 (9th Cir. 1978), cert. denied, 440

U.S. 973 (1979), modified on other grounds, United

States v. Shaffer, 789 F.2d 682, 687-88 (9th Cir.

1986). The standard of review employed with

iS tl A I a mm

respect to most rulings on Jencks Act issues is

abuse of discretion. United States v. Miller, 771

F.2d 1219, 1229 (9th Cir. 1985). That is also the

standard for reviewing the imposition of sanctions.

United States v. Valencia, 656 F.2d 412, 415 (9th

Cir.), cert. denied, 454 U.S. 877 (1981).

The Jencks Act defines a "statement" as

"a written statement made by [a] witness and

signed or otherwise adopted or approved by him."

18 U.S.C. § 3500(e)(1). The Supreme Court has

held "statements" of a witness that are written by a

government attorney are within the scope of the

Jencks Act. Goldberg v. United States, 425 U.S.

94, 98 (1976). Thus the notes can be a "state-

ment" under 18 U.S.C. § 3500(e)(1).

Although the prosecutor's notes were not

signed by Knoll, the trial judge ruled that Knoll

had “otherwise adopted" these notes. It was not

error to so rule. In determining whether a state-

ment has been adopted by a witness it is important

to ascertain whether the notes were read back to

the witness. United States v. Goldberg, 582 F.2d

at 487. Here, the recording consisted of the

government attorney doing precisely that.

The district court sanctioned the govern-

ment by limiting Knoll's testimony to items contained

in the tape. The government argues ‘hat the

sanction is unduly harsh because the loss of the

notes was unintentional, and the status of Knoll as

a witness was unanticipated at the time of of the

interview.

The Jencks Act authorizes the trial judge

to strike the testimony of a witness when the

government elects not to comply with an order of

the court. 18 U.S.C. § 3500(d). The court is

required, in making its decision whether to strike a

witness's testimony, to consider the culpability of

the government and the injury resulting to the

defendants. United States v. Sterling, 742 F.2d .

521, 524 (9th Cir. 1984), cert. denied, 105 S. Ct.

232 (1985). The trial judge in this instance con-

sidered the lack of government culpability and lack j

of prejudice to the defendants and then imposed a

sanction less harsh than that authorized by the

Jencks Act. His ruling was not an abuse of

discretion. We therefore affirm the district court's

order limiting Knoll's testimony to the subjects

covered in the tape-recorded statement.

AFFIRMED.

FOOTNOTE

1. The “sound discretion" standard has its ori-

gins in Mr. Justice Story's classic formulation of

the test for manifest necessity. See United States

v. Perez, 22 U.S. (9 Wheat.) 579, 580 (7824).