                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2007

USA v. Dinzey
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2251




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"USA v. Dinzey" (2007). 2007 Decisions. Paper 21.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/21


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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 07-2251
                                    ___________

                         UNITED STATES OF AMERICA

                                         vs.

                                  ALLEN DINZEY
                                    a/k/a MOW

                                         Allen Dinzey,
                                               Appellant
                                    ___________

               On Appeal from the District Court of the Virgin Islands
                       (Division of St. Thomas and St. John)
                         (D.C. Criminal No. 05-cr-00076-3)
                  District Judge: The Honorable Curtis V. Gomez
                                   ___________

                              Argued: December 10, 2007


             BEFORE: SMITH, NYGAARD, and ROTH, Circuit Judges.


                              (Filed: December 20, 2007)


Bernard M. VanSluytman, Esq. (Argued)
P. O. Box 6878
Charlotte Amalie, St. Thomas
USVI 00804

      Counsel for Appellant
Delia Smith, Esq. (Argued)
Office of the United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924

       Counsel for Appellee

                                       ___________

                               OPINION OF THE COURT
                                    ___________

NYGAARD, Circuit Judge.

       Allen Dinzey, along with twelve co-defendants, was indicted in a multi-count

indictment alleging drug conspiracy offenses. Dinzey was also charged with distribution

of crack cocaine. During his trial, DEA Agent Mark Josephs’ testimony raised a Bruton

error.1 The District Court declared a mistrial as to Dinzey. Dinzey then moved to dismiss

the indictment, arguing that the prosecutor deliberately provoked a mistrial to preserve the

opportunity for a second trial. The District Court denied Dinzey's motion and Dinzey has




        1
            In Bruton v. United States, 391 U.S. 123 (1968), Bruton and his co-defendant,
Evans, were tried jointly before a jury. At trial, a federal officer testified that Evans had
confessed to the robbery and had implicated Bruton in his confession. The judge
instructed the jury that it should consider Evans' confession solely in determining Evans'
guilt and that it should disregard the confession with regard to Bruton's involvement. The
Supreme Court reversed Bruton's conviction, holding that the introduction of a
non-testifying co-defendant's confession implicating Bruton violated the accused's right to
confront witnesses secured by the Confrontation Clause of the Sixth Amendment. Id. at
126. Id. at 128; see also United States v. Richards, 241 F.3d 335, 340 (3d Cir. 2001).


                                             2
now appealed. On appeal Dinzey raises one issue: whether the District Court's denial of

his motion to dismiss the indictment violated his double jeopardy rights. We will affirm.

       We have specifically held that when a defendant requests a mistrial, even in

response to prosecutorial or judicial error, double jeopardy does not bar retrial, unless the

error that prompted it was the result of bad-faith conduct by a judge or prosecutorial

misconduct. See United States v. Pharis, 298 F.3d 228, 243 (3d Cir. 2002). It is not

disputed that Dinzey moved for the mistrial. In his brief, Dinzey admits that "In written

arguments, defendant sought a dismissal of the case. The [District Court] then granted

defendant Dinzey a mistrial and severed him from the case." Appellant's brief at 6.

Therefore, the only question before us is whether the underlying error that caused the

mistrial was prompted by prosecutorial misconduct or bad faith.

       There is none. Dinzey argues that the prosecutor intentionally acted to provoke a

mistrial by eliciting testimony of a post-arrest statement defendant Francois made, thereby

causing a Bruton error. However, there is no evidence on this record to indicate that the

prosecutor did anything to provoke a mistrial - indeed the prosecutor opposed Dinzey’s

motion. The District Court also found that “Dinzey has not presented, nor is the Court

aware of, any evidence in the record to suggest that the prosecutor intentionally caused

the mistrial.” Appendix at 11. Finally, the prosecutor argued against granting a mistrial

and asked the District Court to give a curative instruction instead. Supplemental

Appendix at 68. Because Dinzey moved for the mistrial and there is no evidence of bad



                                              3
faith, his re-prosecution does not violate any Constitutional proscription. We will affirm.




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