# Petition for Writ of Certiorari — Arnaiz v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0257%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 820 ## Text 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 eae eenaeeteeaemnenaall aaerreseaerinriaemeraeannineeinmmemainiieiaiitenes 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0257%3A1. Public record. Not legal advice.