U.S. v. Lopez-Avila, No. 11-10013 (1-12-12) (Bea with Noonan and Walter, D.J.)

It isn't nice to tell a half truth. It isn't prudent to lie to a court and jury. It especially isn't good to lie about a transcript before that court. All of this occurred in this case, and this appeal on double jeopardy grounds to the 9th. The defendant had entered into a plea for drug trafficking. At the PSR, she disclosed that she was coerced into carrying drugs. The court allowed her to withdraw from her plea, and the case proceeded to trial. At trial, the defendant testified. The prosecutor crossed examined, and impeached her with her statements from the COP hearing. The statement read by the prosecutor from the transcript was: "Ms. Lopez, has anyone threatened you?" "No." A recess later, defense counsel moved for mistrial because the exact language included the language: "Ms. Lopez, has anyone threatened you or forced you to plead guilty?" The prosecutor said that he dropped the last phrase because his reading, about threats, was a fair one. The court disagreed, as did the 9th, because the question concerned pleading guilty and not being threatened to commit the offense. The district court granted a mistrial. The court then denied the motion to dismiss for double jeopardy. On appeal, the 9th affirmed. It held that for double jeopardy to bar a retrial, the prosecutor, in Oregon v. Kennedy had to act with the goal of terminate the trial, not to win through improper means. As the 9th stressed, "The only relevant intent is intent to terminate the trial, not intent to prevail at trial by impermissible means." The 9th found here that the prosecutor purposely omitted the language, purported to have quoted the exact language, but that his intent was to win, not to goad the defense into moving for a mistrial. The 9th also found meritless defendant's claim that 28 USC 530B, concerning the rules regulating government lawyers, also applied to the state's interpretation for double jeopardy. Although the 9th ruled against the defendant, the 9th took the prosecutor to task in harsh language, and suggested to the court it might consider various options, including dismissal of the case with prejudice under its supervisory powers, or sanctions against the prosecutor. The prosecutor's name is spelt out throughout the opinion.

Congratulations to Mark Williman of the CJA panel in Tucson, Arizona.