     08-5797-cr
     USA v. Bright

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
     AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 0.23 AND
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
     CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
     MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
     UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
     WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
     PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
     WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
     AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
     DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 1            At a stated term of the United States Court of                    Appeals
 2       for the Second Circuit, held at the Daniel Patrick                    Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                    City of
 4       New York, on the 14 th day of December, two thousand                  nine.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                ROSEMARY S. POOLER,
 9                BARRINGTON D. PARKER,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               08-5797-cr
17
18       SIDNEY BRIGHT
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       APPEARING FOR APPELLANT:              Marvin E. Schecter, Law Offices
23                                             of Marvin E. Schecter, New York,
24                                             New York.
25


                                                  1
 1   APPEARING FOR APPELLEE:    Jillian B. Berman, Joan M.
 2                              Loughnane, Jesse M. Furman,
 3                              United States Attorney’s Office
 4                              for the Southern District of New
 5                              York, New York.
 6
 7        Appeal from an order of the District Court for the
 8   Southern District of New York (Pauley, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the order of the district court be UPHELD.
12
13        Defendant-appellant Sidney Bright appeals from a
14   November 24, 2008 order by the U.S. District Court for the
15   Southern District of New York (Pauley, J.) denying a motion
16   to dismiss an indictment against him on double jeopardy
17   grounds. We assume the parties’ familiarity with the
18   underlying facts, the procedural history, and the issues
19   presented for review.
20
21        This Court has jurisdiction over an interlocutory
22   appeal under 28 U.S.C. § 1291 when an appellant claims that
23   a prosecution violates his double jeopardy rights. United
24   States v. Pavloyianis, 996 F.2d 1467, 1472 (2d Cir. 1993).
25   This Court reviews “de novo as a question of law the denial
26   of a motion to dismiss an indictment on Double Jeopardy
27   grounds.” United States v. Estrada, 320 F.3d 173, 180 (2d
28   Cir. 2003).
29
30        A mistrial in a defendant’s initial trial does not
31   generally impose a double jeopardy bar if a defendant
32   requests the mistrial or consents to the declaration of the
33   mistrial. Maula v. Freckleton, 972 F.2d 27, 29 (2d Cir.
34   1992); see also United States v. Huang, 960 F.2d 1128, 1133
35   (2d Cir. 1992) (“[T]he Double Jeopardy Clause guards against
36   government oppression; it does not relieve a defendant of
37   the consequences of his voluntary choice to accept a
38   mistrial.”).
39
40        Here, Bright consented to the mistrial. When the issue
41   of the potential conflict resurfaced on the third day of the
42   trial, the judge ensured that the defendant understood what
43   was going on and appointed new counsel to consult with him
44   about the conflicts issue. After a break in the
45   proceedings, the new counsel confirmed that Bright
46   understood the issues and stated that Bright did not wish to
47   waive his right to unconflicted counsel. The court directly

                                  2
 1   asked Bright “do you understand as a consequence of . . .
 2   the absence of your consent, that I will have to declare a
 3   mistrial in this case; do you understand that?” Bright
 4   answered affirmatively.
 5
 6        Bright’s argument that he lacked representation at this
 7   stage (and so could not have properly consented) is
 8   unsupported by the record. Bright was represented by
 9   counsel at all times. The court appointed Richard Jasper
10   “as counsel for Mr. Bright and would ask that [he] confer
11   with him regarding this matter.” The court did not relieve
12   Jasper as “counsel for the defendant in connection with the
13   Curcio matter” until after the mistrial was granted.
14   Furthermore, Bright’s original attorney still represented
15   him until relieved at a conference the following day. His
16   original attorney spoke on his behalf at later points in the
17   mistrial discussion.
18
19        The totality of the circumstances confirm Bright’s
20   consent. United States v. Goldstein, 479 F.2d 1061, 1067
21   (2d Cir. 1973) (“Consent [to a mistrial] need not be
22   express, but may be implied from the totality of
23   circumstances attendant on a declaration of mistrial.”).
24   This Court has held that if a defendant has a chance to
25   object to a mistrial, but chooses not to do so, then a court
26   can infer consent. United States v. Beckerman, 516 F.2d
27   905, 909 (2d Cir. 1975); see also Maula, 972 F.2d at 29
28   (“Inferring consent from counsel’s failure to object in this
29   case is not only consistent with the requirements of the
30   double jeopardy clause; it also tracks the general principle
31   applied in other areas of trial practice, when failure to
32   object to a ruling, which at the time it is made or proposed
33   could readily be changed, will bar future attempts to review
34   that ruling.”). Here, Bright’s counsel expressly informed
35   the court that he had no objection to the mistrial. The
36   district court asked, “I believe that I’m led to only one
37   conclusion here, and that is the need to declare a mistrial
38   in this case. Does any party see it any differently.”
39   Avraham Moskowitz--Bright’s original counsel--replied, “No
40   your honor.”
41
42        Given Bright’s consent to the mistrial, double jeopardy
43   could not attach unless the prosecution intentionally
44   provoked the mistrial. Oregon v. Kennedy, 456 U.S. 667, 673
45   (1982); United States v. Millan, 17 F.3d 14, 18 (2d Cir.
46   1993). This constitutes a “narrow” exception to the general
47   rule that a defendant’s consent to a mistrial lifts the

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 1   double jeopardy bar. Kennedy, 456 U.S. at 673; Millan, 17
 2   F.3d at 18. For this exception to apply the prosecution
 3   must intend to provoke a mistrial “so as to afford the
 4   prosecution a more favorable opportunity to convict the
 5   defendant.” United States v. Dinitz, 424 U.S. 600, 611
 6   (1976). Mere bad faith, harassment, or gross negligence by
 7   a prosecutor do not similarly override a defendant’s
 8   consent. Id.; Huang, 960 F.2d at 1133 (“The applicability
 9   of this exception turns squarely on the judge’s or
10   prosecutor’s intent.”).
11
12        Bright argues that any consent he gave was provoked by
13   the prosecution, which desired to force a mistrial. There
14   is insufficient evidence to support this allegation.
15
16        We accept a district court’s finding that the
17   prosecution did not intentionally act to provoke a mistrial
18   unless such a finding was “clearly erroneous.” Millan, 17
19   F.3d at 18. The district court here did not explicitly
20   discuss the defendant’s argument that the prosecution forced
21   a mistrial to improve its chances in a second trial, however
22   it implicitly found that the prosecution did not do so. The
23   district court’s opinion lays out the proper legal standard;
24   it quotes Maula, 972 F.2d at 29, for the proposition that if
25   the defendant consents to the mistrial, double jeopardy does
26   not bar a second prosecution “unless the government or the
27   court acts in a manner intended to provoke a defendant to
28   move for a mistrial.” Id. Given that it was aware of the
29   proper legal standard and the defendant’s argument that the
30   prosecution provoked the mistrial, we infer that the
31   district court found that the prosecution did not goad the
32   defendant into consenting to a mistrial.
33
34        The record supports the district court’s finding that
35   the prosecution did not intentionally provoke a mistrial.
36   The prosecution’s initial position was that the trial could
37   go forward and that the conflict was theoretical, not
38   actual. The prosecution did not advocate for a mistrial and
39   believed any conflict that existed could be waived. The
40   prosecution offered an alternative solution that might have
41   allowed the first trial to proceed (allowing an unconflicted
42   attorney to cross-examine a witness)--an expedient that the
43   court rejected. Furthermore, none of the alleged flaws in
44   the prosecution’s case that the defendant argues motivated
45   the prosecution to prompt the mistrial would be remedied by
46   a second trial. The prosecution’s decision to raise the
47   potential conflict is easily accounted for by a desire to

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 1   avoid a successful appeal by Bright on the grounds that his
 2   conflicted counsel was unable to vigorously attack a key
 3   government witness. See generally Wheat v. United States,
 4   486 U.S. 153, 159-62 (1988) (exploring when possibly
 5   conflicted attorneys no longer constitute effective
 6   counsel).
 7
 8        Since Bright consented to the mistrial and the
 9   prosecution did not intentionally provoke a mistrial, the
10   district court’s order denying defendant’s motion to dismiss
11   is upheld.
12
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16                              By:
17
18
19                              ___________________________




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