Petition for Writ of Certiorari — Arnaiz v. United States

86 19980) [ Freep "

: JUN 12 BOT

JOSEPH F. SPANIOL, JR,

CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM 1987

NELSON BACALLAO and

STEPHEN FROMM,

Petitioners,

VS

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALBERT PETER WALTER, JR. DAVID CHESNOFF

235 Catalonia Avenue 3885 S. Decatur Bivd.

Coral Gables, Fla. 33134 Suite 2000

(305) 442-1919 Las Vegas, Nevada 89103

(702) 367-2505

Counsel of record for

Petitioners Of counsel

a)

2)

3)

QUESTIONS PRESENTED FOR REVIEW

DID THE THREE-JUDGE PANEL OF THE NINTH

CIRCUIT COURT OF APPEALS APPLY THE WRONG

- STANDARD OF REVIEW - SOUND DISCRETION AS

OPPOSED TO STRICT SCRUTINY.

CAN THE DISTRICT COURT DECLARE A MISTRI-

AL, AS OPPOSED TO DISMISSAL WITH PREJU-

DICE, ONLY TO AVOID THE DOUBLE JEOPARDY

BAR TO A SECOND TRIAL.

UNDER DOUBLE JEOPARDY ANALYSIS, CAN

MANIFEST NECESSITY EXIST WHERE THE

GOVERNMENT MAINTAINS AT TRIAL AND ON

APPEAL THAT THE DISTRICT COURT'S SUA

SPONTE DECLARATION OF MISTRIAL WAS NOT

MANIFESTLY NECESSARY.

Il

LIST OF PARTIES IN APPELLATE COURT

NELSON BACALLAO,

STEPHEN FROMM,

ISMAEL ‘FELIPE ARNAIZ,

RAUL RODRIGUEZ, and

ALFREDO MOYA,

Appellants,

UNITED STATES OF AMERICA,

Appellee.

ii

man.

I.

Il.

III.

IV.

Ws

VI.

VII.

VIII.

IX.

A.

B.

Cc.

X.

XI.

XI.

QUESTIONS PRESENTED FOR REVIEW. . .

LIST OF PARTIES IN APPELLATE COURT.

TABLE OF CONTENTS . . . «+ «© «© « «

TABLE OF AUTHORITIES. ...... .

REFERENCE TO OPINIONS OF LOWER COURTS

JURISDISTIONAL STATEMENT. . ... .

CONSTITUTIONAL PROVISION. .... .

STATEMENT OF THE CASE ...... .

REASONS FOR GRANTING THE WRIT... .

The District Court cannot declare a

mistrial, as. opposed to dismissal

with prejudice, only to avoid the

double jeopardy bar to .a_ second

(io? > ee

The three-judge panel ‘of the ‘ninth

circuit court of appeals used the

wrong standard of review - sound

Giscretion as opposed to _ strict

scrutiny. .

Under double jeopardy analysis,

manifest necessity cannot exist

where the government maintains at

trial and on appeal that the

district court's sua sponte

declaration of mistrial was not

manifestly necessary.

Co FU a a a a

CERTIFICATE OF SERVICE. . ....- -

oS ee a ee ee ee

iii

10

14

16

18

3

IV

TABLE OF AUTHORITIES

Arizona v. Washington, 434 U.S. 497

Page

(A97S)s 6 6 ee we we tw 8 RROESH16

Brady v. Maryland, 373 U.S. 83 (1963).

° 8

Lee v. United States, 432 U S. 23 (1976) .9-10

Oregon v. Kennedy, 456 U.S. 667... .

. Bo

United States ex rel. Clauser v. McCevers,

731 F.2d 423 (7th Cir. 1984...

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

(AP Fees 6 ee ek 6 oe 8 eee

2 - oo

10-11-i5

United States v. Perez, 9 Wheat. 579 (1824) 12

STATUTES

a8 U.8.0. § 22960} os oe ew ee

ae, Gks Be oes 6s ee Oe Se ae

iv

pen teaay eal

Vv

REFERENCE TO OPINIONS OF LOWER COURTS

The unpublished opinion of the Ninth

Circuit Court of Appeals, the order denying

datentiints petition for rehearing, also in

the appellate court, and the district court's

order denying defendant's motion to dismiss

the indictment and motion for reconsideration

are reproduced in the Appendix.

VI

JURISDICTIONAL STATEMENT

The judgment of the Ninth Circuit Court

of Appeals was entered on January 5, 1987,

affirming the January 13, 1987, denial of

defendant's motion to dismiss. The Court of

Appeals denied the timely petition for rehear-

ing on April 14, 1987. The jurisdiction of

this Court is invoked under 28 U.S.C.

§1254(1).

VII

CONSTITUTIONAL PROVISION

The Double Jeopardy Clause of the Fifth

Amendment to the United’ States Constitution

states:

"(NJor shall any person be subject for

the same offence to be twice put in jeopardy

of life or limb."

vi

No.

IN THE

Supreme Court of the United States

OCTOBER TERM 1987

NELSON BACALLAO and

STEPHEN FROMM,

Petitioners,

vs

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

NELSON BACALLAO and STEPHEN FROMM, Petitioners

herein and Appellants and Defendants in the courts below,

submit this Petition for Writ of Certiorari, in accordance

with Rule 21 of the Supreme Court Rules.

VIII

STATEMENT OF THE CASE

The jurisdiction of the district court

was invoked pursuant to the indictment filed

in the United States District Court for the

District of Arizona.

References herein shall be made to the

Docket Number of papers filed in the district

court, designated as "CR" and to the tran-

script record (month, date, year and page

number) of the trial and hearing on the motion

to dismiss, designated as "RT."

In this Statement of the Case, "Petition-

ers" and "Defendants" shall be used inter-

changeably.

The Petitioners, Nelson Bacallao and

Stephen Fromm, and twenty two other individu-

als were indicted by a federal grand jury in

the District of Arizona on March 20, 1984 for

various narcotics-related and currency viola-

tions. (CR 1).

Defendants Bacallao and Fromm~= were

charged in only two counts. (CR 1).

The indictment alleged the existence of a

large narcotics importation and distribution

conspiracy spanning four years. (cR i}.

Trial commenced on April 2, 1985, in the

United States District Court for the District

of Arizona before the Honorable Richard Bilby.

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 inveitisedsies by Marion

County, Florida, Sheriff Deputy Patty Lumpkin;

and, two, the Arnaiz group of which

co-defendant Luis Villageliu was allegedly a

member. Both Barona and Mr. Villageliu were

known as Mr. B.

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. (RT

-2-

Pe Se

he i. cep

5/4/85 46). Davidson prepared an investiga-

tive 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 the

State of Florida. (RT 5/4/85 65-69). 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 at the

trial level, did the mishap come to light.

(RT 5/4/85 75; RT 5/1/85 65).

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. (RT 5/4/85

71-131).

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. (RT

5/1/85 71; RT 5/2/85 5).

On May 4, 1985, Deputy Lumpkin mentioned

that Davidson, "within the last thirty days"

called her to explain some confusion surround-

ing the killings. (RT 5/4/85 123). Only

through subsequent re-examination of Lumpkin

on May 15 did counsel for the Defendants and

the district court learn that Davidson called

Lumpkin on the night of May 1 during the

middle of cross-examination of the case agent.

(RT 5/15/85 12-13).

On May 13, 1985, the trial judge dis-

missed the case against co-defendant Gregory

Clifford after the court discovered that the

F.B.I. “obliterated” the sequestration rule.

(RT 5/13/85 88-89). Defense counsel moved to

dismiss the case against all remaining defen-

dants, due to the prosecutorial misconduct.

(RT 5/13/85 56, 78, 114). The trial judge, in

-4-

ee Oe ee ae eT eT ee eT ee ee ee

responding to counsel for Defendant Arnaiz's

request to specifically admonish Davidson and

the remaining government witnesses concerning

the Rule, stated that they needed no warning,

and if one more Rule violation were discov-

ered, the case would be dismissed against all

remaining defendants, with prejudice. (RT

5/13/85 106).

On May 16, the egregious nature of case

agent Davidson's Rule violation, his withhold-

ing of crucial Brady material, and_ the

F.B.I.'s withholding and late disclosure of

Brady material (the F.B.I. had reports de-

scribing co-defendant Raul Rodriguez as a

person “obviously not the man in the court-

room") caused the trial judge to terminate the

case. (RT 5/15/85, 275, 278, 280, 283, 285,

291, 321). The trial judge specifically found

violations of Brady and the Rule and declared

a mistrial. (RT 5/16/85 2, 3).

Defendants moved for dismissal of the

case with prejudice as the trial judge had

-5-

indicated would occur (RT 5/13/85 56, 78, 114;

RT 5/14/85 43; RT 5/15/85 307, 313, 314) and

objected to the granting of a mistrial. (RT

5/16/85 6, 11).

At the January 13, 1986, hearing on

Defendants' motion to dismiss the indictment

based on double-jeopardy grounds, the trial

judge stated that on May 16, 1985, there was

"manifest necessity" to grant the mistrial.

(RT 1/13/86 27, 28).

At this hearing, the government argued

that there was no "manifest necessity" to

declare the mistrial.

On appeal, a three-judge panel of the

Ninth Circuit Court of Appeals affirmed the

district court's order denying defendants'

motion to dismiss the indictment based on

double jeopardy grounds. The panel held that

the trial judge properly exercised his “sound

discretion" in finding "manifest necessity"

and that the government's argument against a

ra ti ta a Pt a dat

declaration of mistrial supported the trial

judge's decision.

IX

REASONS FOR GRANTING THE WRIT

The appellate court decision affirming

the district court's order denying petition-

ers' motion to dismiss the indictment based on

double jeopardy grounds conflicts with deci-

sions of other federal courts of appeals on

the same matter, with decisions of this Court,

and sanctions such a departure by the district

court, as to call for an exercise of this

‘Court's power of supervision.

A. THE DISTRICT COURT CANNOT DECLARE A

MISTRIAL, AS OPPOSED TO DISMISSAL WITH

PREJUDICE, ONLY TO AVOID THE DOUBLE

JEOPARDY BAR TO A SECOND TRIAL.

The three-judge panel of the Ninth

Circuit ignored Petitioners' argument that the

trial court erred in declaring a mistrial, as

opposed to a dismissal with prejudice, and

this oversight constitutes a clear abuse of

discretion.

Six weeks after the trial commenced, the

trial judge dismissed the charges agairst

co-defendant Gregory Clifford after the court

determined that agents from the Federal Bureau

of Investigation involved in the case somehow

discussed the case among themselves in viola-

tion of the rule against sequestration of

witnesses. (RT 5/13/85 35). Petitioners

contemporaneously demanded dismissal of their

charges. The trial judge denied these motions

but stated that he would dismiss the case with

prejudice as to .all defendants if one more

violation of the sequestration rule was

discovered. (RT 5/13/85 106). Two days later

the trial court discovered that case agent

Harold Davidson discussed the case during the

middle of his cross-examination with another

witness, Deputy Patty Lumpkin, and that this

constituted a serious violation of the

_ sequestration rule. At the same time, the

trial judge discovered numerous government

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

~~

SS CEB rt (Rn rte Ty

(1963), which requires the government’ to

disclose evidence favorable to the accused.

Petitioners repeatedly requested that the

trial ‘court take the course of action the

court stated it would take should any more

government violations occur, namely, dismissal

of the case with prejudice. (RT 5/15/85 307,

suns Bad, 3164, 318). The trial court sua

sponte declared a mistrial just prior to

sending the case to the jury.

The critical question in determining the

impact of an order terminating trial does not

turn on whether the district court labels its

action a "dismissal" or a "declaration of

mistrial" but whether the order contemplates

an end to all prosecution of the defendant for

the offense charged. Lee v. United States,

432 U.S. 23, 30 (1976). In the trial of this

cause, the trial court set the stage for a

dismissal with prejudice, but when the curtain

call came, the trial judge declared a mistri-

al. The Petitioners consciously sought a

~

dismissal with prejudice, as opposed to a

mistrial and its concomitant implications of a

second trial. (RE 5/13/63 48, 36, 78, 1124;

5/14/85 10 (co-defendant MOYA), 43).

The trial court's sua sponte declaration

of mistrial just prior to a jury verdict in

this situation is functionally indistinguish-

able from a dismissal with prejudice. Lee v.

United States, 432 U.S. at 29. As the Ninth

Circuit totally ignored this portion of

Petitioners' argument, this Court must grant

this request. for certiorari so that Petition-

ers will have an audience to debate this

travesty of justice.

B. THE THREE-JUDGE PANEL OF THE NINTH

CIRCUIT COURT OF APPEALS USED THE WRONG

STANDARD OF REVIEW - SOUND DISCRETION AS

OPPOSED TO STRICT SCRUTINY

The Ninth Circuit misapplied the teach-

ings of this Court in United States v. Jorn,

400 U.S. 470 (1971) and contrived a new

standard of review in examining a trial

judge's declaration of mistrial. At page 4 of

-19-

the Ninth Circuit's memorandum decision (page

6 in the Appendix), the appellate court held:

"Along the spectrum of trial problems that may

warrant a mistrial, the difficulties that gave

rise to the mistrial in this case fall within,

an area in which the trial judge is entitled

to exercise his sound discretion. See United

States v. Jorn, 400 U.S. 470, 485-487 (1971)

grounds, Oregon v. Kennedy, 456 U.S. 667,

) (plurality opinion), modified on other

672-78 (1982)." However, the actual language

in Jorn to which the Ninth Circuit refers does

not describe a degree of deference a reviewing

court applies to a declaration of mistrial

over a defendant's objection, nor does it

describe a degree of deference or latitude a

trial court is entitled to deciding whether a

mistrial is manifestly necessary.

The pertinent language in United States

Vv. Jorn states: "When one examines the

circumstances surrounding the discharge of

this jury, it seems abundantly apparent that

et ee ee Tout

-ll-

,

the trial judge made no effort to exercise a

sound discretion to assure that, taking all

the circumstances into account, there was a

manifest necessity for the sua sponte declara-

tion of this mistrial." Jorn, 400 U.S. at

487. Thus, "sound discretion" refers to the

quantum of discretion a trial judge is re-

quired to exercise before declaring a mistri-

al. Manifest necessity stands as a command to

trial judges not to foreclose the defendant's

option whether or not to take the case from

the jury until a scrupulous exercise of

judicial discretion leads to the’ conclusion

that the ends of public justice would not be

served by a continuation of the proceedings.

Jorn, 400 U.S. at 485 (emphasis added); see

also United States v. Perez, 9 wheat. 579, 580

(1824) ("To be sure, the power [to exercise .

sound discretion] ought to be used with the

. greatest caution, under urgent circumstances,

and for very plain and obvious causes").

o12<

The Ninth Circuit correctly restated the

two levels of appellate review - great defer-

ence when the grounds for mistrial relate to

juror prejudice, and strict scrutiny where the

accused claims the mistrial was caused by

government misconduct. The appellate court

inappropriately contrived a third level of

review - sound discretion - where no other

court in this nation has ever mentioned such a

standard of judicial review. The Ninth

Circuit's adoption of the "sound discretion"

standard was critical to its decision affirm-

ing the trial court's finding of manifest

necessity. The Ninth Circuit held at page 4

of its memorandum decision (page 6 of the

Appendix): "Although the matter is not free

from doubt, we find that the requisite mani-

fest necessity existed in this case."

In the appellate court, the Petitioners

Claimed that strict scrutiny was the appropri-

ate standard of review. The trial judge

declared a mistrial in this case because of

-13-

government misconduct. When the accused

claims that the mistrial was intentionally «

caused by the prosecution, the trial judge's

declaration of mistrial should be strictly

scrutinized. Arizona v. Washington, 434 U.S.

497, 507-510 (1977).

This Court: must exercise its supervisory

power to ensure that no federal court of

appeals, including the Ninth Circuit, adopts

the sound discretion standard of review.

C. UNDER DOUBLE JEOPARDY ANALYSIS, MANIFEST

NECESSITY CANNOT EXIST WHERE THE GOVERN-

MENT MAINTAINS AT TRIAL AND ON APPEAL

THAT THE DISTRICT COURT'S SUA SPONTE

DECLARATION OF MISTRIAL WAS NOT MANIFEST-

LY NECESSARY.

The Ninth Circuit affirmed the trial

court's finding of manifest necessity for the

declaration of mistrial. The government at

trial, at the hearing on the motion to dis-

miss, and on appeal maintained there was no

manifest necessity for the court's mistrial

declaration. However, it is axiomatic that

"the government must establish that the

-14-

ee ee

Le |

termination (of trial) was occasioned by

‘manifest necessity' in order to avoid the

Fifth Amendment double jeopardy bar to

reindictment and retrial." United States ex

rel. Clauser v. McCevers, 731 F.2d 423, 426

(7th Cir. 1984) (emphasis added).

"Because jeopardy attaches before the

judgment becomes £inal, the constitutional

protection. also embraces the defendant's

"valued right to have his trial completed by a

particular tribunal'." Arizona v. Washington,

434 U.S. 497, 503 (1978) (quoting United

States v. Jorn, 400 U.S. 470, 484 (1971)

(Brennan, J. concurring) ).

[Because] of the importance of

[this] right, and the fact that it

is frustrated by any mistrial, the

prosecutor must shoulder the burden

of justifying the mistrial if he is

to avoid the double jeopardy bar.

His burden is a heavy one. The

prosecutor must demonstrate "mani-

fest necessity" for any mistrial

declared over the objection of the

defendant. The words "manifest

necessity" appropriately character-

ize the magnitude of the prosecu-

tor's burden.

-15-

,

Arizona _v. Washington, 434 U.S. 497, 505

(1978) (footnote omitted).

Again, the Ninth Circuit ignored Peti-

tioners' argument that the prosecutor could

not meet his heavy burden of demonstrating

manifest necessity if he consistently argues

Against any finding of manifest necessity. By

so doing, the appellate court has so far

departed from the accepted and usual course of

judicial proceedings, as to call for an

exercise of this Court's power of supervision.

X

CONCLUSION

"A review on writ of certiorari is not a

matter of right, but of judicial discretion,

and will be granted only when there are

special and important reasons therefor." Sup.

Ct. R. 17. This is such a case. This Court's

. power of supervision represents the last

opportunity for the vindication — of

-16-

Petitioners' fundamental right against double

jeopardy.

DATED: June 12, 1987.

- Respectfully Submitted,

ALBERT PETER WALTER, JR.

235 Catalonia Avenue

Coral Gables, Fla. 33134

(305) 442-1919

Counsel of Record for

Petitioners

SS Lae Sel (|

ALBERT PETER WALTER, JR.

DAVID CHESNOFF

3885 S. Decatur Blvd.

Las Vegas, Nevada 89103

(702) 367-2505

Of Counsel

-17=

XI

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the

foregoing Petition for Writ of Certiorari have

been mailed by deposit with the United States

Post Office, first class postage prepaid on

this PAS day of.June, 1987 to:

John M. Roll, Esq.

Assistant U. S. Attorney

United Bank Plaza Box 73

120 Broadway

P. O. Box 1951

Tucson, Arizona 85702-1951

David Chesnoff, Esq.

3885 S. Decatur Blvd. #2000

Las Vegas, Nevada 89103

James D. Himelic, Esq.

10 East Broadway

Tucson, Arizona 85701

Frank A. Rubino, Esq.

3940 Main Highway

Coconut Grove, Fla. 33133

Charles Fried, Esq.

Solicitor General

Department of Justice

Washington, D. C. 20530

SSS

A. P. WALTER, JR.

=18-<

IN THE

Supreme Court of the United States

OCTOBER TERM 1987

NELSON BACALLAO and

STEPHEN FROMM,

Petitioners,

vs

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

APPENDIX

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CASE NOS.: 86-1036, 86-1035

86-1036, 86-1038

86-1075

D.C.: CR-84-0061-TUC-RMB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Cross-Appellant.

-vs- MEMORANDUM*

ALFREDO MOYA, RAUL ALFONSO

RODRIGUEZ, ISMAEL FELIPE

ARNAIZ, NELSON BACALLAO,

STEPHEN FROMM,

Defendants-Appellants,

Cross-Appellees.

/

Appeal from the United States District Court

for the District of Arizona

R. M. Bilby, Chief District Judge, Presiding

Argued and Submitted November 10, 1986

San Francisco, California

Before: WRIGHT, SNEED, and KOZINSKI, Circuit

Judges

*This disposition is not appropriate for

publication and may not be cited to or by the

courts of this circuit except as provided by

Sth Cir. BR. Zi.

Five codefendants appeal the district

court's denial of their motions to dismiss

their indictments on double jeopardy grounds.

In a companion case, the government “appeals

the district court's order regarding a sanc-

tion for a violation of the Jencks Act. we

affirm the district court's grant of a mistri-

al rather than a dismissal and the district

court's sanction order limiting testimony.

I

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

violations that stemmed from an alleged

conspiracy to import and distribute cocaine,

methaqualone, and marijuana. During the

-course of the trial, the district court found

that the government violated the witness

sequestration rule on three occasions. The

o3=

PB Am a9 eno) Nia

court also found that the government committed

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

83 (1963), which requires the government upon

specific request to disclose evidence favor-

able to the accused. The court conniuaed that

the Brady violations "were probably just good

faith mistakes," but that they were of the

type that hurt the defense.

It further ruled that the government had

violated the Jencks Act, 18 U.S.C. § 3500.

The violation occurred in the following

manner. The government attorney and a case

agent took notes of an interview with Thomas

Knoll. Knoll had entered into a plea agree-

ment 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 government attorney, Knoll's attorney

requested that a recording be made for Knoll's

protection. The government attorney, going

through his notes, summarized their previous

«Jo

discussion on tape. Knoll stated that the

attorney's gummary wan accurate. 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 a mistrial because of manifest

necessity. 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

Lael

dismissal on grounds of double jeopardy. The

court denied their motion, and they appealed.

Il

DISCUSSION

A. Double Jeopardy

In a jury trial jeopardy attaches when

the jury is empaneled and sworn. Criat #2,

Beets. 437 U:i8. 26;:' 29 tigre). However,

reprosecution is not barred if the trial was

terminated because of "manifest necessity."

Arizona _v. Washington, 434 U.S. 497, 505

(1978). The "words [manifest necessity] do

not describe a standard that can be applied

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,

-5-

decisions where the accused claims the mistri-

al 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 somewhere

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 fall 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

a6~=

judge found that the violations of both Brady

and the witness sequestration rule, although

probably good faith mistakes, 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 mistrial is due to mistakes of

the government, United States v. Jorn, 400

U.S. at 486, except when the declaration of

mistrial was “on the basis of a rule or a

defective procedure that would lend itself to

prosecutorial manipulation," Illinois Vv.

Somerville, 410 U.S. 458, 464 (1973). Given

the absence of intentional prosecutorial

misconduct and the prosecutor's plea for the

~

‘case to go to the jury, we conclude the

prosecutorial lapses do not lend themselves 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 approxi-

mately thirty occasions, the prosecutor

complained to the trial court of the heckling

by certain defense counsel during the prosecu-

tor's arguments to the court. We emphatically

disapprove of the misconduct of certain

defense counsel in this case. Attorneys of

defendants 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 government'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 clause.

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 respect to most rulings on Jencks Act

issues is abuse of discretion. United States

v. Miller, 771 #.2€@ 1219, 1229 (9th Cir.

1985). That is also the standard for review-

ing 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).

=a16—

Thus the notes can be a "statement" 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 statement 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 govern-

ment 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

that 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 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

«ij.

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. 2322 (1985). The

trial judge in this instance considered the

lack of government culpability and lack 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.

-12-

he The "sound discretion" standard has

its origins in Mr. Justice Story's classic

formulation of the test for manifest necessi-

ty. See United States v. Perez, 22 u.s. (9

Wheat.) 579, 580 (1824).

a1 3=

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CASE NO.: 86-1036

UNITED STATES OF AMERICA, D.C. 3

CR-84-061

TUC-RMB

Plaintiff-Appellee,

-Vs- ORDER

ALFREDO MOYA, RAUL ALFONSO FILED

RODRIGUEZ, ISMAEL FELIPE April 14, 1987

ARNAIZ, NELSON BACALLAO,

STEPHEN FROMM, C.A. Catterson

Clerk .

Defendants-Appellants, U.S.Court of

Appeals

Before: WRIGHT, SNEED, and KOZINSKI, Circuit

Judges

The panel as constituted in the above

case has voted to deny the petition for

rehearing en banc.

The full court has been advised of the

suggestion for en banc rehearing, and no judge

of the court has requested a vote on the

suggestion for rehearing en banc. Fed. R.

App. p. 35(b).

The petition for rehearing is denied, and

the suggestion for rehearing en.banc is

rejected.

Oe eh See

"Gas Wed) ees ew ater ee

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

D.C.: CR-84-061-TUC-RMB

UNITED STATES OF AMERICA,

Plaintiff,

-vs- ORDER

ISMAEL FELIPE ARNAIZ,

Defendants.

Counsel for the Defendants have urged

upon the Court that it reconsider its ruling

denying their Motion to Dismiss on the basis

of double jeopardy. They claim that their

review of the record after the hearing on

January 13, 1986 shows the Court had entered

an OrGmy on May 13, 1985, that if it found any

additional violations of the rule, it would

dismiss the counts as to all of the Defen-

dants. They specifically point to the lan-

guage of the Court on Page 106, May 13, 1985,

and the findings of the Court on May 16, 1985,

that there had been a rule violation involving

Deputy Lumpkin.

After reviewing the transcripts in

question and refreshing its memory, the Court

denies the Motion for Reconsideration. What

counsel say is true, the Court waS very

agitated on the 13th, and stated that if there

was. an additional violation of the rule, it

would dismiss the case. No new violations

occurred after that time. However, it was

brought to the Court's attention that an

additional violation had occurred prior to May

13, 1985, but was not discovered until after

May 13, 1985, when it was brought to the

Court's attention. Based on this, the Court

determined that there was a manifest necessity

for declaring a mistrial, but decided not to

dismiss the case for two reasons: 1) the

violation of the rule had not occurred after

‘May 13, 1985, and 2) the broad, open file

policy of the United States Attorney's Office

in Tucson indicated that the prosecutor had

= 2a

done nothing improper, and had made a good

faith effort to comply with Jencks, Brady, and

the rule of the Court. —er instance, the

violations occurred by the investigative

agencies, FBI, DEA, and the Miami Police

Department. Under all these circumstances,

the Court felt, and still feels that there was

a manifest necessity for declaring a mistrial,

but that a dismissal was too harsh a remedy

under all of the circumstances of the case.

DATED this 14th day of January, 1986.

Richard M. Bilby, Judge

United States District Court