Case o' The Week: Double or Nothing - Mondragon and Double Jeopardy
To paraphrase the classic Greg Kihn Band tune, "I was in jeopardy, baby, ooh-oh-ooh."
Or not.
United States v. Mondragon, 2013
WL 6726925 (9th Cir. Dec. 23, 2013), decision available here.
Players: Decision by Judge Graber, joined
by Judges Tashima and Murguia.
Facts: After a jury was empaneled Mondragon
went to a settlement conference and then plead guilty: he did not object when
the district court then declared a mistrial. Id. at *1. Mondragon then successfully moved to rescind his guilty
plea. Id. Before the next trial was underway,
Mondragon invoked the Double Jeopardy clause and demanded the original jury hear his case. Id. The district court denied the motion
to dismiss the superseding indictment. Id.
Mondragon filed an interlocutory appeal. Id.
at *2.
Issue(s): “[The] rule, that a declaration of
mistrial at the behest or with the consent of the defendant stands as no
obstacle to a new trial, has one ‘narrow exception’; the rule does not apply
when the mistrial is caused by the misconduct of the prosecutor or judge and
that misconduct is motivated by an intent to . . . subvert the protections afforded
by the Double Jeopardy Clause.” Id.
at *2 (internal quotations and citations omitted). “Here, Defendant argues that
the district court engaged in misconduct because the settlement conference
violated Federal Rule of Criminal Procedure 11. He further argues that the
misconduct constituted ‘goading’ because the presiding judge intended that the
settlement conference result in Defendant’s consent to a mistrial.” Id. at *3. “. . . [T]he relevant inquiry
is whether the impropriety was an attempt to prevent the empaneled jury from
reaching its verdict.” Id. at *4.
Held: “Even
if we assume that the district court violated the local settlement rule and
Rule 11, we still conclude that the district court’s actions did not constitute
‘goading.’” Id. at *3. “Defendant
leaps from the fact that a voluntary settlement conference may result in a plea
agreement and a consequent mistrial to the conclusion that the judge
necessarily sought to cause a
mistrial. There is no support in the law, in logic, or in the record for that
leap.” Id.
Of Note: After Davila, 133 S. Ct. 2139 (2013), the significance of Mondragon in the context of mid-trial
settlement conference is effectively moot: there aren’t any settlement
conferences (or if there are, they are few and far between). The broader import
or Mondragon is the “coerce to
consent to mistrial” branch of the Double Jeopardy analysis. Id. at *2-*4. While it is not a terribly
surprising result, Mondragon refuses
to grow that branch beyond traditional bases for finding that jeopardy attached.
Id. at *3.
How to
Use: Mondragon
gives a little primer for when jeopardy does
attach, when the court or prosecutor goads the defense into agreeing to a
mistrial. The point of this line of law is to “’prevent[ ] prosecutors from
sinking a case they knew was doomed to end in an acquittal in the hope of
having better luck before a second jury.’” Id.
at *4 (quoting United States v. Perlaza,
439 F.3d 1149, 1173 (9th Cir. 2006)).
Examples? “[I]f the prosecutor thinks
that the jury will acquit because the government’s star witness performed
poorly on cross-examination, the prosecutor’s misconduct aimed at causing a
mistrial would bar retrial. Or if a judge who disliked the jury’s racial or
professional mix engaged in misconduct in order to seek a different mix in the
jury pool, the judge’s misconduct leading to a mistrial would bar retrial.” Id. at *4.
For
Further Reading: A month or so ago we flagged buzz of a possible amendment
to the drug guidelines. See blog here. That buzz became much more real last week, as the Commission sought comments
on a proposed amendment that would knock 2 levels off drug guidelines. See press release here.
Bring that certain reduction into current negotiations (or brush up on your
Speedy Trial exclusions and stall drug cases until the
amendments kick in).
Finally, negotiate-out § 3582 resentencing waivers!
(Or try to: the ability (or
inability) to negotiate over § 3582 waivers in plea agreements is a topic of much
interest in the ND Cal right now).
Image
of “Jeopardy” from http://globalstrategygroup.com/wp-content/uploads/2013/08/1280_jeo_alex-738030.jpg
Steven
Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
.
Labels: Double Jeopardy, Graber, Guidelines, Interlocutory Appeals, Rule 11, Settlement Conferences, USSG 2D1.1
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