Sunday, January 12, 2014

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

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


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