# 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_0387%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 820 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0387%3A1. Public record. Not legal advice.