                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 14 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-10002

              Plaintiff-Appellee,                D.C. No.
                                                 1:17-cr-00020-RVM-1
 v.

MARK SHAWN SMITH,                                MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                             for the District of Guam
                  Ramona V. Manglona, District Judge, Presiding

                             Submitted June 12, 2019**
                                Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
Judges.

      Mark S. Smith appeals the district court’s denial of his motion to dismiss the

indictment against him on double jeopardy grounds. We review de novo a denial

of a motion to dismiss an indictment, United States v. Bates, 917 F.2d 388, 392

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(9th Cir. 1990), and for abuse of discretion a finding of manifest necessity for a

mistrial, United States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are

familiar with the facts of this case, we need not recount them here.

      Where a district court declares a mistrial after jeopardy has attached and

without the defendant’s consent, re-prosecution of the defendant is barred unless

the mistrial was justified by “manifest necessity.” Arizona v. Washington, 434 U.S.

497, 505 (1978). In reviewing a district court’s finding of manifest necessity, we

analyze the procedures it employed, including whether it (1) heard the opinions of

the parties about the propriety of a mistrial, (2) considered alternatives to a mistrial

and chose the least harmful one to the defendant’s rights, and (3) acted

deliberatively instead of abruptly, basing its judgment on the evidence in the

record. Chapman, 524 F.3d at 1082. We afford “special deference” to a finding of

manifest necessity that is based on the court’s “observations and personal

assessment that a fair trial would be impossible.” Id.

      The record indicates that the district court afforded both parties an

opportunity to present their opinions on the propriety of a mistrial. The mistrial

order reflects that the court was considering numerous motions and responses filed

by both parties when it declared a mistrial. The court also held a hearing where the


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parties argued extensively about the relevance of David Lujan’s name appearing in

the exhibits, the significance and extent of his purported conflict of interest, and

the propriety of a mistrial

      The district court also considered alternatives to a mistrial but concluded

there simply were none. Redacting the evidence for Lujan’s name would not

prevent his identity from coming out during the trial, and it would be unfair to the

government to entirely limit the disclosure of Lujan’s previous employment

because it was directly relevant to the government’s case. In addition, Lujan’s

requests to redact the evidence stemmed from concern for his personal reputation,

which illustrated to the court Lujan’s divided loyalty. Disqualification of Lujan as

counsel and the declaration of a mistrial were least harmful to Smith’s rights.

      Finally, the record indicates the court acted deliberatively in considering

whether Lujan’s conflict of interest created manifest necessity for a mistrial. The

government notified the court of Lujan’s potential conflict of interest in its pre-trial

motion to disqualify him as counsel. But, based on the information it had at the

time, and the lack of specificity in the government’s motion, the court concluded

that Smith’s right to the counsel of his choosing outweighed any risk it posed. The

disabling nature of Lujan’s conflict became apparent only after the trial began and

the court learned each party’s theory of the case. Cf. Thomas v. Mun. Court, 878


                                           3
F.2d 285, 289–90 (9th Cir. 1989) (court discovered defense counsel’s conflict after

trial had commenced creating manifest necessity for a mistrial).

      In short, the district court acted within its discretion in concluding there was

manifest necessity for a mistrial, and thus it did not err in denying Smith’s motion

to dismiss the indictment.



      AFFIRMED.




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