Case o' The Week: Double Trouble - Lucas and discovery for (suspected) Petite Policy and Double Jeopardy Violations

State plea of guilt. 

Sentence imposed.

Feds charge same crime. 

(Ninth indisposed).

United States v. Lucas, 2016 WL 6595972(9th Cir. Nov. 8, 2016), decision available here.

Players:  Decision by Judge Tallman, joined by Judges McKeown and Wardlaw. 

  Hard-fought appeal by ND Cal AFPDs Dan Blank and Carmen Smarandoiu.

Facts: Lucas ran after being stopped for BART fare evasion. Id. He fell when tazed: a pistol fell out of his shorts, then a second pistol was found. Id. Lucas pleaded guilty to being a felon in possession in state court, was sentenced, and was scheduled for release on his state sentence. Id. 

  Two weeks before his release date on his state case, he was charged federally with being a felon in possession (same guns, same event). Id. at *2. As soon as he was released from state custody, he was brought into federal court.

  When pressed the AUSA said that she had obtained a Petite waiver. Id. The “important federal interests” were reportedly the fact that the event had taken place in a BART station, and that Lucas “had not received an adequate state sentence.” Id.  

  The defense sought discovery, seeking information that would demonstrate that state and federal authorities colluded in prosecuting Lucas and thereby violated Double Jeopardy. Id. The AUSA refused to disclose; motions to compel were denied by magistrate and district judges. Id. at *3.  

Issue(s): “[Lucas’s] appeal turns on a discovery issue: whether the district court erred by denying his motion to compel information he contends will support a motion to dismiss the federal indictment under the Double Jeopardy Clause of the United States Constitution.” Id. at *1.

Held: “Because Lucas failed to either make the requisite showing of materiality under . . . Rule 16 or adequately challenge the government’s representation that it does not have any Brady material, we affirm.” Id.  

  “In short: Cooperation is constitutional; collusion is not. Impermissible collusion may be found when the prosecutors of one sovereign so thoroughly dominate[ ] or manipulate[ ] the prosecutorial machinery of the other sovereign that the latter retains little or no volition in its own proceedings.” . . . Such collusion may occur when a second prosecution is not pursued to vindicate the separate interests of the second sovereign, but is merely pursued as a sham on behalf of the sovereign first to prosecute.” Id. at *5 (quotations and citations omitted). 

  “Here, the district court properly found that Zone is indistinguishable from Lucas's case and that Lucas failed to make the threshold showing of materiality. Lucas's arguments to the contrary are unpersuasive. The Trigger Lock article that Lucas presented to the district court, like the news articles in Zone, merely describes the cooperation between federal and state authorities in attempting to reduce gun violence in San Francisco.” Id. at *7. 

  “We conclude on this record that, under Zone and the high evidentiary standard in double jeopardy claims, the district court did not abuse its discretion in ruling that Lucas failed to make a sufficient showing of materiality under Rule 16.” Id. at *8.

Of Note: In Lucas, the feds targeted a man who already pleaded guilty to the identical offense at the Hall of Justice, and who had already completed his state sentence for the same crime. Turns out the ND Cal USAO has taken this approach in at least five other cases in the last five years. Id. at *7 (discussing AUSA’s report of an informal poll). 

  Judge Tallman assures us that “It is perfectly sensible that federal authorities sought to prosecute Lucas after his comparatively light state sentence for possessing a firearm as a convicted felon.” Id. at *8. State actors – the PD, the DA, and the judge who resolved the first case in good faith -- may disagree. 

  Lucas is a tough read for AFPDs, but an even harder case for our county comrades. How does one advise a client on the merits of a state plea offer, when lurking feds wait to re-charge the same case when the state sentence is done?

How to Use: Does Brady apply to double jeopardy claims? An open question, and one that is (perhaps thankfully) not resolved in Lucas. Id. at 9 & n.9. Lucas’s holding is limited to the insufficiency of the discovery showing – don’t let the case be cited for the proposition that Brady claims do not apply to double jeopardy challenges.

                                               

For Further Reading: It is interesting to consider DOJ's Petite policy waiver form, in the context of the Lucas decision. A July 2016 version of the waiver application for AUSAs is available here.

“Double Jeopardy” image from http://www.hungjury.org/doublejeopardy.html

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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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

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Case o' The Week: Better to Lose than Tie -- Flores-Perez and Interlocutory Appeal of Rule 29 After Hung Jury

Cirilio Flores-Perez had the bad luck to hang his federal jury, 9-3 for acquittal.

If he wanted review of the denial of his Rule 29 motions, explains the Ninth, he should have gone for a conviction. United States v. Flores-Perez, 2011 WL 2450984 (9th Cir. June 21, 2011), decision available here.


Players: Hard-fought and clever appeal by San Diego Assistant Defender Devin Burstein. Decision by Senior District Judge Mills (C.D. Illinois).

Facts: Flores-Perez hung a federal jury on a one-count indictment alleging an attempt to transport an undocumented alien. Id. at *1. (Nine to three in favor of acquittal, by the way). Id. The district court denied his Rule 29 motions brought at the close of the government's case and after the jury hung. Id.

The government then re-indicted with four counts, including the "attempt count." Id. Flores moved the district court to dismiss the superseding indictment on double jeopardy grounds. Id. His motion was denied, and Flores-Perez appealed. Id.

The government challenged the appeal for lack of jurisdiction. Id.

Issue(s): [Ed. note: The ‘84 Supreme Court decision Richardson v. United States, 468 U.S. 317 (1984), effectively eliminated defense double jeopardy challenges on interlocutory appeal, after a mistrial or hung jury.]

“[U]nder Richardson, double jeopardy claims asserting termination of jeopardy due to a hung jury and associated mistrial are no longer colorable.” Id. at *2. "Flores argues that Richardson and its progeny are not controlling because he is appealing the denial of his motion to dismiss the superseding indictment, not his Rule 29 acquittal motion.” Id.

Held: “We hold that the filing of a superseding indictment after mistrial does not raise a colorable double jeopardy claim.” Id. at *3. “[W]e lack jurisdiction to review the district court’s denial of the motion for acquittal.” Id. at *4.

Of Note: Senior, out-of-circuit, district Judge Mills creates a new Ninth rule in this case. The San Diego Defender cleverly argued that it wasn’t challenging the Rule 29 motion (barred on interlocutory appeal); it was challenging the superseding indictment that followed the jury hang. Id. at *3-5. Judge Mills rejects the challenge and makes a new Ninth rule along the way: “the issuance of a superseding indictment does not nullify the original indictment, and . . the issuance of a superseding indictment does not terminate the original jeopardy.” Id. at *4.

This is one of those simple new rules that has complex ramifications. Judge Mills favorably quotes authority that explains that all a superseding indictment does is create another choice for the government to proceed upon a trial – the original indictment, or the superseding. Seems the prudent move for the defense (and the district courts) is to now insist that earlier indictments be dismissed by the government when a superseding indictment is obtained, to prevent prosecutors from leap-frogging among charges before trial.

How to Use: Consider this case in the context of Allen charges. The decision on whether to ask for an Allen charge is always a tough choice for the defense. Remember than an Allen charge is that “dynamite” jury instruction designed to push a hung jury towards unanimity. Flores-Perez reminds us why this is such a hard call. If you’ve lost a truly righteous Rule 29 motion in the district court and end up with a hung jury and mistrial, you can kiss your appeal good-bye.

Is it actually better, in that setting, to get the Allen charge, risk the conviction, and preserve the right to appeal the denial of the Rule 29 motion? Flores-Perez is a good cases to tuck next to the Allen instruction tab on your trial binder, as a reminder of the appellate issues at stake.

For Further Reading: The Supreme Court’s Richardson decision created a particularly galling rule. To see the Richardson rule in action, consider James: a case out of the ND of Cal.

In the first round of this bank robbery case, the government flat-out forgot to introduce proof of FDIC insurance. The district court erroneously denied the Rule 29 motion, and the jury convicted on three out of four counts – hanging on the fourth. Jeopardy attached, the bank robber appealed, the denial of the Rule 29 was reversed by the Ninth, the defense celebrated. United States v. James, 987 F.2d 648, 652 (9th Cir. 1993).

But, as noted above, on the fourth count the jury hung. Because jeopardy didn’t attach, no interlocutory appeal was available and the bank robber never got the FDIC / Rule 29 issue from the fourth count before the Ninth. See United States v. James, 109 F.3d 597 (9th Cir. 1997). James was tried again and convicted. Id. at 598. Hence, after Richardson, the clearly-guilty – who have the good fortune of getting convicted – enjoy appellate review of their Rule 29 motion. Defendants facing weaker proof, who hang their juries, are out of luck in the Ninth.


"Hung jury" logo from http://www.hungjurytheband.com/


Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org

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