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


1-4-2007

USA v. Williams
Precedential or Non-Precedential: Precedential

Docket No. 05-4292




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"USA v. Williams" (2007). 2007 Decisions. Paper 1709.
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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 05-4292




              UNITED STATES OF AMERICA,
                                  Appellant
                          v.

                   KENNETH WILLIAMS,
                       a/k/a Junior




        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                    (D.C. No. 05-cr-00125)
          District Judge: Honorable John P. Fullam


                  Argued November 8, 2006

    Before: SLOVITER, CHAGARES, and GREENBERG,
                      Circuit Judges

                    (Filed January 4, 2007)
                             _____

Richard P. Barrett
Robert A. Zauzmer (Argued)
Office of United States Attorney
Philadelphia, PA l9l06

      Attorney for Appellant



                               1
Francis J. Genovese (Argued)
Solomon, Berschler, Warren, Schatz & Flood
Norristown, PA l9401

      Attorney for Appellee

                  OPINION OF THE COURT
                           ____

SLOVITER, Circuit Judge.

       Before us is the Government’s appeal of an order entered
by the District Court granting the motion of defendant/appellee
Kenneth Williams to dismiss the indictment on double jeopardy
grounds, which followed the Court’s grant of Williams’ motion
for a mistrial. The principal issue is the legal standard to be
applied by the District Court in considering a motion to dismiss
an indictment for what the District Court viewed as prosecutorial
misconduct.

                               I.

       County detectives who were engaged in an undercover
investigation into the distribution of cocaine base (“crack”) had
arrest warrants for Williams based on information that he had
sold crack to detectives and cooperating sources. They seized
Williams when the car he was driving came to rest in the parking
area next to the Travel Lodge in Pottstown, Pennsylvania.
According to the testimony of several of the detectives, after
they arrested Williams they seized eighty-two bags of crack
cocaine from his pocket. Some detectives proceeded to
Williams’ residence where, according to their testimony, they
intended to wait for search warrants which other detectives were
seeking. Williams’ girlfriend lived in the house and initially
refused the request to search. She later consented when she
learned that Kevin Jones, who occupied the basement apartment,
had a firearm under the futon where he had been sleeping. The
detectives then searched the premises and seized additional
drugs and two handguns, the one in Jones’ futon and one in a
closet near the front door. After the arrest, Williams was

                                2
questioned at the police station and, according to the
Government, admitted to dealing in crack cocaine but denied
possession of the handguns.

        The District Court thereafter granted Williams’ motion to
suppress the evidence seized from his residence on the ground
that his girlfriend’s consent was not voluntary but denied
Williams’ motion to suppress his confession. Williams, who had
felony drug convictions in 1998 and 2002, moved in limine to
preclude introduction of those prior drug felonies, but withdrew
the motion after the Government agreed in writing that it would
not present that evidence in its case-in-chief. The Government,
nonetheless, reserved the right to use that evidence on cross-
examination if Williams testified.

       Williams had been charged on three counts, but in light of
the suppression order the Government proceeded to trial on only
the count alleging possession with intent to distribute more than
five grams of cocaine base in violation of 21 U.S.C. § 841 (a)(1)
based on the eighty-two bags of crack that the Government
contends was seized from Williams’ pocket when he was
arrested.

        As it had agreed, the Government presented its case
without introducing evidence of Williams’ prior felony drug
convictions. Williams then took the stand to begin the defense
portion of the case. He denied that he had made arrangements
for a drug sale at the Travel Lodge. He denied that he had been
carrying drugs when arrested and denied that he had confessed to
selling drugs. The cross-examination by the Assistant U.S.
Attorney proceeded as follows:

      Q.     You never said you’d sell bags for five dollars a
             piece; right?

      A.     No.

      Q.     As a matter of fact, you acted like you had no idea
             how much bags of cocaine sell for; right?



                                3
A.     Actually, the officer asked me how much do a bag
       – and he made the signs with his fingers, he said
       how much do a bag like this go for, like a bag this
       small? I said, I don’t know, probably five dollars.

Q.     You say probably, you’re not familiar with the
       drug trade?

A.     Yes.

Q.     Yes, you are familiar with the drug trade?

A.     Yes, I grew up around drugs all my life.

Q.     As a matter of fact, you have two prior convictions
       for selling drugs?

       [DEFENSE COUNSEL]: Objection, your Honor.

       THE COURT: Objection sustained.

       [DEFENSE COUNSEL]: May we see you at side
       bar? May we see your Honor?

       THE COURT: Yes, indeed.

(At side bar:)

       THE COURT: Yes?

       ([Defense counsel] responds, and his response is
       totally inaudible.)

       THE COURT: Are you asking for one now? I’m
       inclined to grant it, if you do, but I might also say
       if I grant a mistrial, it will be with the condition
       that any retrial both sides are represented by
       different lawyers. What’s obviously happening
       here is that the police were dealing with the drugs
       that were found in the house, which have been

                          4
             suppressed, and they’re getting that in by the back
             door, and confusing the witness.

             [ASST. U.S. ATTY]: That’s not true, Judge.

             THE COURT: Of course it is.

             [DEFENSE COUNSEL]: Judge, it’s a point
             they’re trying to get his prior convictions in
             through the back door as well.

             THE COURT: Don’t do it again. If you’re not
             moving for a mistrial, I won’t grant it.

      (End of side bar.)

             THE COURT: The jury will disregard that last
             question. Do you have something that’s
             permissible? Let’s hear it.

             [ASST. U.S. ATTY]: Your honor, may we see you
             at side bar again?

             THE COURT: No.

App. at 175-76.

        The cross-examination then proceeded for a page and a
half of the transcript concerning Williams’ biographical
information. The following question was then asked:

      [ASST. U.S. ATTY]:
      Q.   Mr. Williams, back in 1998 you were convicted of
           selling drugs back then; correct?

             [DEFENSE COUNSEL]: Objection, your Honor.

             THE COURT: Objection sustained.

             [DEFENSE COUNSEL]: I move for a mistrial.

                                5
              THE COURT: And that will be – a mistrial will be
              granted.

Id. at 177.

        Williams thereafter moved to dismiss the indictment.
After a hearing, the District Court granted the motion to dismiss
the indictment. The Court issued an opinion dated July 19,
2005. It noted that it had sustained defendant’s objection to the
prosecutor’s question with respect to Williams’ two prior
convictions for selling drugs and that it had directed the
prosecutor not to “pursue that line of questioning” again.1 Id. at
5. The Court noted that the prosecutor shortly thereafter asked
Williams if he was convicted “back in 1998” of selling drugs.
The District Court stated that “[b]y promptly disobeying the
court’s instruction and inquiring about a seven-year-old previous
conviction, the prosecutor must have known that it would trigger
a mistrial.” Id. at 6. The District Court acknowledged “that
mere harassment or overreaching which results in a mistrial is
not enough to bar retrial under the Double Jeopardy Clause[,]”
but stated that “the prosecutor, like everyone else, must be
deemed to have intended the readily foreseeable consequences of
his actions[,]” and concluded “that the [i]ndictment must be
dismissed.” Id.

                                II.

       The Government argues that the District Court misapplied
the legal standard as to when double jeopardy attaches following
a Government-provoked mistrial. The relevant standard was
enunciated by the Supreme Court in Oregon v. Kennedy, 456
U.S. 667, 675-76 (1982), where the Court stated:

              Prosecutorial conduct that might be viewed as
       harassment or overreaching, even if sufficient to justify a
       mistrial on defendant’s motion . . . does not bar retrial



       1
        In fact, the actual words the judge used at the time were
“Don’t do it again.” App. at 176 (emphasis added).

                                6
       absent intent on the part of the prosecutor to subvert the
       protections afforded by the Double Jeopardy Clause. A
       defendant’s motion for a mistrial constitutes “a deliberate
       election on his part to forgo his valued right to have his
       guilt or innocence determined before the first trier of
       fact.” United States v. Scott, 437 U.S. 82, 93 (1978).
       Where prosecutorial error even of a degree sufficient to
       warrant a mistrial has occurred, “[t]he important
       consideration, for purposes of the Double Jeopardy
       Clause, is that the defendant retain primary control over
       the course to be followed in the event of such error.”
       United States v. Dinitz, [424 U.S. 600,] 609 [(1976)].
       Only where the governmental conduct in question is
       intended to “goad” the defendant into moving for a
       mistrial may a defendant raise the bar of double jeopardy
       to a second trial after having succeeded in aborting the
       first on his own motion.

(emphasis added).

       The Court noted that in its earlier opinions it had also
focused on the Government’s intent. It cited, inter alia, United
States v. Dinitz, 424 U.S. 600 (1976), where the opinion spoke
in terms of “governmental actions intended to provoke mistrial
requests,” 424 U.S. at 611, and United States v. DiFrancesco,
449 U.S. 117, 130 (1980), where the Court said that
“reprosecution of a defendant who has successfully moved for a
mistrial is not barred, so long as the government did not
deliberately seek to provoke the mistrial request.” Kennedy, 456
U.S. at 678 n.8.

        Shortly afer the Kennedy decision was announced, this
court was presented with a somewhat similar issue in United
States v. Curtis, 683 F.2d 769 (3d Cir. 1982). When the case
first came to this court, we reversed the conviction and directed a
new trial because the prosecutor had remarked about the
defendant’s silence in direct contravention of the district judge’s
warning. On remand, the district court held that further
prosecution of the defendant was barred by the Double Jeopardy
Clause. On appeal from that order, we reversed. We noted that

                                7
in dictum in Burks v. United States, 437 U.S. 1, 15 (1978), the
Supreme Court had stated that prosecutorial misconduct fell
within the class of grounds for reversal of a trial verdict that did
not implicate the Double Jeopardy Clause. Curtis, 683 F.2d at
773. We held that there was no significant difference in
application of the Double Jeopardy Clause when the new trial
was required because of appellate reversal or because of
prosecutorial misconduct. We concluded that a second trial
“could constitute double jeopardy, if at all, only if the
prosecutorial misconduct. . . . was intended to provoke the
defendant into moving for a mistrial.” Id. at 776 (internal
quotation marks omitted).

       Case law following Kennedy and Curtis has consistently
emphasized that application of the double jeopardy bar is
dependent on a showing of the prosecutor’s subjective intent to
cause a mistrial in order to retry the case. See United States v.
Coleman, 862 F.2d 455, 458 (3d Cir. 1988) (“double jeopardy
clause will not bar retrial absent intent on the part of the
prosecutor to subvert the protections afforded by the Double
Jeopardy Clause”) (internal quotation marks and citation
omitted); United States v. Gilmore, 454 F.3d 725, 729-30 (7th
Cir. 2006) (“The key question is whether the prosecutor
deliberately introduced the error in order to provoke the
defendant into moving for a mistrial, and thereby rescuing a trial
going badly. . . . Intent is a critical element to understand when
determining if a prosecutor's actions intentionally triggered the
mistrial.”); United States v. McIntosh, 380 F.3d 548, 557 (1st
Cir. 2004) (upholding district court’s denial of motion to dismiss
indictment on provoked-mistrial grounds, and noting that
“prosecutorial error or even prosecutorial harassment that results
in a mistrial will not unlatch the double jeopardy bar in the
absence of the intent to cause a mistrial”).

       The district court in Curtis found that the prosecutor’s
statements in his summation to the jury commenting on the
defendant’s silence were made in knowing contravention of the
court’s order and were intended to bring about a mistrial, but we
held that finding was clearly erroneous. 683 F.2d at 778. We
recognized that ordinarily a trial judge’s interpretation of events

                                  8
occurring in that judge’s courtroom are entitled to considerable
deference; nonetheless, after reviewing the record, we concluded
in Curtis that the District Court’s inference of an intent to
provoke a mistrial could not be sustained.

       The Government argues that in this case the “district
court seemed to accept the prosecutor’s representation that he
did not intend to cause a mistrial.” Appellant’s Br. at 28. It
notes that the District Court stated in its opinion that “I have no
doubt of the prosecutor’s sincerity in wishing, after the fact, that
he had not caused a mistrial[.]” App. at 6. It is the
Government’s position that this demonstrates that the District
Court believed that the prosecutor only mistakenly, not
intentionally, triggered a mistrial by his questioning.

       At the hearing on the defendant’s motion to dismiss the
indictment, the prosecutor explained to the Court that he had
been confused as to what the Court directed him not to repeat
when the Court sustained the objection to his first question to
Williams regarding his prior convictions. The prosecutor stated
that he understood that the Court was directing him not to
question Williams about the evidence that was suppressed (drugs
and firearms found in the residence). Review of the trial
transcript shows that was a reasonable conclusion because the
District Court stated during the sidebar, “[w]hat’s obviously
happening here is that the police were dealing with the drugs that
were found in the house, which have been suppressed, and
they’re getting that in by the back door. . . .” Id. at 175-76.

        At the hearing, the prosecutor explained to the Court, “I
misunderstood that, and I applied your words there to the reason
for sustaining the objection.” Id. at 196. The prosecutor then
explained that he was not asking about evidence that was
suppressed when he asked the question that elicited the mistrial.
His explanation is supported by the fact that he began the
question that the Court found objectionable with the words
“Back in 1998” in order “to insure that the defendant was clear
that I was not asking about evidence that was suppressed, and
the Court also was clear.” Id. The prosecutor offered to testify
regarding his practice, his training, and as to his intent whether

                                 9
to cause a mistrial but the District Court declined to hear any
such evidence.

       Reviewing the record, we conclude that at most there was
confusion about the basis for the District Court’s direction to the
prosecutor not to do “it” again. Id. at 176. Certainly there was
no explicit direction by the District Court to the prosecutor not to
ask any questions about Williams’ prior felony convictions.

        Apparently, the U.S. Attorney’s Office in this district
follows a general practice of advising the trial court in advance
that it wishes to impeach a defendant with evidence of prior
convictions. Had that been done in this case, the confusion
undoubtedly would have not occurred. However, as the District
Court recognized, there is no requirement that the prosecutor
seek the District Court’s permission in advance. Under Rule 609
of the Federal Rules of Evidence, “evidence that an accused has
been convicted [of a crime punishable by death or impeachment
in excess of one year under the law under which the witness was
convicted] shall be admitted if the court determines that the
probative value of admitting this evidence outweighs its
prejudicial effect to the accused.” Fed. R. Evid. 609(a)(1). Only
if the evidence is of a conviction more than ten years old is there
a requirement that there be advance notice to the adverse party of
intent to use such evidence so that the court can determine
whether the probative value substantially outweighs the
prejudicial effect. Fed. R. Evid. 609(b). Inasmuch as the drug
felony convictions with which the prosecutor sought to impeach
Williams (who had testified that he was not familiar with the
drug trade) occurred less than ten years before, there was no
requirement for advance notice. The Government notes that
notwithstanding the lack of any such requirement, on the
morning of Williams’ cross-examination the prosecutor did
advise defense counsel of his intent to impeach Williams.

       Although it is often difficult for an appellate court to
determine the prosecutor’s intent from the cold record, our
decision in Curtis gives us an example to follow in making such
a determination. In Curtis, this court concluded that the
prosecutor’s conduct “did not, in the context of that trial,

                                10
obviously require a mistrial.” 683 F.2d at 777. We stated,
“[n]othing in the record indicates that the prosecutor believed
that the jury was about to acquit Curtis.” Id. The same can be
said in this case.

        The Government’s case appeared to be going well. There
had been consistent testimony by four local officers who had
personal knowledge of the circumstances surrounding Williams’
arrest. Detective Edward Kropp, who was assigned to the
Montgomery County District Attorney’s Office for two-and-a-
half years and previously worked for the Pottstown Police
Department for seventeen years, was the lead detective in this
matter. He testified that he searched Williams after the arrest and
seized from the left side of Williams’ trousers a sandwich baggie
containing eighty-two red-tinted zip-lock bags of an off-white,
rock-like substance and one orange zip-lock bag containing an
off-white, rock-like substance. Detective Samuel Gallen, who
had been in law enforcement for approximately twenty-five
years, confirmed Kropp’s testimony and testified that he
searched the front right pocket of Williams’ trousers and
retrieved a $50 bill. Detective David Evans also testified that he
was present at the search and observed the recovery of the drugs
from Williams’ person. The informant, who had been one of
Williams’ customers, testified that he was at the Travel Lodge
on the date in question as part of a pre-arranged buy-bust
transaction. Pennsylvania State Parole Board agent Dennis
Powell testified he was in the hotel room with the informant
along with Pottstown police officer Todd Richards, when the
informant called Williams to meet him at the Travel Lodge.
Lindsay Rademaker, a forensic chemist with the National
Medical Services, testified as to her procedure in testing
substances for the presence of controlled substances and
identified the exhibit containing the material submitted for
analysis by the police officers which she found to contain
cocaine base. Both Detective Gallen and Detective Mark
Minzola testified as to the circumstances under which Williams
confessed that he owned the crack that was found on his person.
Detective Gallen noted that Williams was very insistent that his
girlfriend had no responsibility for the cocaine.



                                11
       Although in his direct examination Williams denied
having the packages of crack on him, denied that he went to the
Travel Lodge to sell crack, and denied that he confessed to
possessing the crack that was seized from his person
notwithstanding his initials on some of the pages of the
confession and his signature at the end, there was no objective
reason why the prosecutor would have believed that the trial was
going badly for the Government and that the jury might acquit.
Thus, in this case as in Curtis, “there has been no showing that
the Government had reason to hope it might uncover new
evidence . . . or that it . . . stood to gain from a mistrial.” Id.

        In United States v. Gonzalez, the Court of Appeals for the
Tenth Circuit reversed a district court dismissal of the indictment
with prejudice, stating, “to the extent the [district court] allowed
an inference of prosecutorial intent to force a mistrial in the
absence of objective evidence, the analysis was contrary to
Kennedy and our precedent, including [United States v.
McMurry, 818 F.2d 24, 25-26 (10th Cir. 1987)].” 248 F.3d
1201, 1204 (10th Cir. 2001). In Gonzalez, as here, the district
court had stated, speaking of the prosecutor, that a person
intends the natural and probable consequences of his or her acts
if those acts are knowingly done. The Court of Appeals, in
reversing, stated:

        The practical implications of the district court’s analysis
       of intent in this context also merit discussion. By
       focusing on the natural and probable consequences of
       prosecutorial conduct rather than the intent underlying
       such conduct, the standard employed by the district court
       would, as the government argues, “convert Kennedy’s
       narrow exception into the rule. . . .” Aplt. Br. at 16. That
       is, under the district court’s reading of Kennedy, any
       prosecutorial conduct that induces the defendant to
       request a mistrial could bar retrial.

Id. at 1204-05.

       The statement by the district court in the Gonzalez case
parallels that made by the District Court in this case. Here also,

                                12
the District Court’s analysis was incorrect.

        Because the applicable standard for a double jeopardy bar
as a result of prosecutorial misconduct requires a showing that
the Government had in fact intended to goad the defendant into
requesting a mistrial, and there was no such showing in this case,
it was error to dismiss the indictment. Accordingly, the order of
the District Court is reversed and this matter is remanded for a
new trial.




                                13
