
USCA1 Opinion

	




                                       UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1131                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  DOMENIC SIMONETTI                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                _____________________               Edward  S. MacColl, by  Appointment of the  Court, with whom               __________________          Marshall  J. Tinkle and Thompson, McNaboe, Ashley & Bull, were on          ___________________     ________________________________          brief for appellant.               Margaret D.  McGaughey,  Assistant United  States  Attorney,               ______________________          with whom Jay P. McCloskey, United  States Attorney, and Jonathan                    ________________                               ________          A.  Toof, Assistant  United  States Attorney,  were on  brief for          ________          appellee.                                  ____________________                                    July 20, 1993                                 ____________________                    TORRUELLA,  Circuit Judge.  Defendant Domenic Simonetti                                _____________          was charged  with conspiracy  to possess  cocaine with  intent to          distribute   it  in   violation  of   21  U.S.C.       841(a)(1),          841(b)(1)(C), and 846.  After the trial began, the district court          severed  Simonetti's  case  from  that  of  his  codefendant  and          declared a mistrial over  Simonetti's objection.  Simonetti later          moved  to   dismiss  the   indictment,  alleging  retrial   would          constitute  double jeopardy  in violation  of his  constitutional          rights.  The district court denied the motion and we affirm.                    Prior to trial,  the government  released to  Simonetti          redacted  reports of government  interviews with  Peter Shoureas.          The reports  referred to  drug transactions between  Shoureas and          various other individuals.   At trial,  the government sought  to          prove  that  Domenic  Simonetti  (also  referred  to  as  "Nick")          conspired  with Shoureas  and  others to  possess and  distribute          cocaine.  While  cross-examining Shoureas, Simonetti's  attorney,          Mr.  Lilley, discovered that the unedited reports showed that the          conspiracy arguably  involved  another individual  who  was  also          referred  to as "Nick."   On different occasions  during his drug          trafficking  career, Shoureas apparently  conspired with Nicholas          Skinsacos  and later,  defendant Domenic  Simonetti.   Skinsacos'          name was redacted in the government's reports, however.  This new          information   offered   potentially   exculpatory  evidence   for          Simonetti because the defense  could have attempted to show  that          the references to "Nick" implicated Skinsacos, not Simonetti.                    Attorney  Lilley moved to dismiss the case on the basis          of  Brady v. Maryland, 373 U.S. 83 (1963), because the government              _____    ________          failed to disclose  this exculpatory evidence  before trial.   In          addition, Lilley informed  the court  that he had  a conflict  of          interest  because  he  previously  represented  Skinsacos.    The          district  court   determined   that  the   government   did   not          intentionally violate its disclosure duty by deleting  Skinsacos'          name from  the Shoureas reports,  but agreed that  the references          should have  been provided  to the  defense.1  As  a remedy,  the          court ordered  disclosure of  all references to  Skinsacos.   The          court concluded that  the delayed disclosure did  not prevent the          defense from effectively presenting its case and thus denied  the          motion to dismiss, finding dismissal  unwarranted by Brady or its                                                               _____          progeny.  See United States v. Devin, 918 F.2d 280, 289 (1st Cir.                    ___ _____________    _____          1990)  (delayed  disclosure  does  not  warrant  dismissal  where          defendant can effectively use information belatedly disclosed).2                    Attorney Lilley's  conflict of interest  with Skinsacos          remained,  however.    The   district  court  recognized  that  a          legitimate defense strategy would attempt to show that references          to "Nick"  implicated  Skinsacos, not  Lilley's  present  client,          Simonetti.  Lilley's ability to represent Simonetti was impaired,          however, because  Maine Bar Rules 3.4(e)3  and 3.6(l)(1) prohibit                                        ____________________          1     The  district  court  deemed  the  oversight  careless  and          specifically found no bad faith on the part of the prosecutor.          2  Simonetti does not specifically challenge this ruling.          3    Maine  Code   of  Professional  Responsibility  Rule  3.4(e)          provides:                      A  lawyer  shall  not  accept  employment                      adverse  to a former  client without that                      client's informed written consent if such                                         -3-          the  use   of  confidential  information  obtained   in  a  prior          representation  to the detriment of  the prior client  or for the          benefit of another party without informed written consent  of the          prior client.4   Consequently,  Lilley could not  have vigorously          defended Simonetti without a waiver  from Skinsacos.  Cf.  United                                                                ___  ______          States v. Marren, 919 F.2d 61, 63 (7th Cir. 1990).          ______    ______                    The district  court granted  a continuance for  several          days in  an effort  to resolve  the conflict  of interest.   Over          Simonetti's objection,  the court eventually  severed Simonetti's          case from his codefendant5  and concluded that manifest necessity          justified declaring a  mistrial.  Simonetti moved  to dismiss the          case on double jeopardy grounds and the district court denied the          motion, finding that  a new  trial would not  violate the  Double          Jeopardy Clause.  This appeal followed.                    The  Double  Jeopardy  Clause of  the  Fifth  Amendment                                        ____________________                      new   employment  involves   the  subject                      matter  of the  former employment  or may                      involve    the   use    of   confidential                      information obtained  through such former                      employment.          4   Maine  Code of  Professional Responsibility  Rule 3.6  (l)(1)          provides in relevant part:                        [A]   lawyer   shall  not,   without  the                      informed written consent  of the  client,                      knowingly reveal a  confidence or  secret                      of the  client;  use such  confidence  or                      secret to the disadvantage of the client;                      or use such  confidence or secret to  the                      advantage  of  the  lawyer  or   a  third                      person.          5    Counsel for  codefendant  argued  that  further delay  would          prejudice his client.                                         -4-          provides that no person shall be twice placed in jeopardy for the          same offense.   Retrial after  a properly declared  mistrial does          not automatically offend the Double Jeopardy Clause.   Arizona v.                                                                 _______          Washington, 434 U.S. 497, 505 (1978).  Where mistrial is declared          __________          over defendant's  objection, retrial  is permissible only  if the          mistrial  was justified  by  "manifest necessity."   Id.;  United                                                               ___   ______          States v.  P rez, 22  U.S. (9  Wheat.) 579 (1824).   The  Supreme          ______     _____          Court  has  interpreted  "manifest  necessity" to  mean  a  "high          degree" of necessity.   Arizona, 434  U.S. at 505;  see Brady  v.                                  _______                     ___ _____          Samaha,  667 F.2d  224,  228 (1st  Cir.  1981).   "The  'manifest          ______          necessity'   standard  provides  sufficient   protection  to  the          defendant's  interests in having his case  finally decided by the          jury  first  selected while  at  the same  time  maintaining 'the          public's  interest  in  fair  trials  designed  to  end  in  just          judgments.'"   Oregon  v.  Kennedy,  456  U.S.  667,  672  (1982)                         ______      _______          (quoting  Wade v.  Hunter,  336  U.S.  684,  689  (1949)).    The                    ____     ______          prosecution bears a heavy  burden in demonstrating that "manifest          necessity" exists when the defendant's  "valued right to have his          trial  completed   by  a  particular   tribunal"  is  implicated.          Arizona, 434  U.S. at 503 &  n.11, 505.  Moreover,  the Court has          _______          consistently  emphasized that  the  standard  cannot  be  applied          mechanically  or "without  attention  to  the particular  problem          confronting the trial  judge."  Id. at 506;  see also Illinois v.                                          ___          ________ ________          Somerville, 410 U.S. 458, 462 (1973).          __________                    "Our duty as a  reviewing court is to  assure ourselves          that the  trial  judge  engaged  in  a  'scrupulous  exercise  of                                         -5-          judicial discretion'  in making the decision that  a mistrial was          necessary."6  Samaha, 667  F.2d at 228 (quoting United  States v.                        ______                            ______________          Jorn, 400 U.S. 470, 485 (1971)).  In the past, we have considered          ____          significant  whether the trial  judge (1) considered alternatives          to a mistrial, (2) afforded counsel an opportunity to be heard on          the  issue, and  (3)  decided precipitously  or after  sufficient          reflection.  United  States v.  Ram rez, 884  F.2d 1524,  1528-29                       ______________     _______          (1st  Cir. 1989); Samaha, 667  F.2d at 228-29;  see also Arizona,                            ______                        ________ _______          434 U.S. at 515-16.                    In  the  present   case,  the   district  court   judge          scrupulously  exercised his  discretion.   After the  conflict of          interest was first discovered, the trial judge held  a conference          in  chambers to discuss possible  remedies.  He suggested several          options:   dismissal, declaration of mistrial,  or continuance to          permit  Simonetti to retain other  counsel or to  obtain a waiver          from Skinsacos.   The judge then  called a recess to  let counsel          research  the problem and review all options.  Later, the hearing          resumed,  only to be continued on several more occasions over the          next  several days.   The  district judge  specifically requested          alternative remedies from the parties  and provided ample time to          obtain the  waiver from Skinsacos.   Simonetti ultimately engaged                                        ____________________          6    Contrary  to Simonetti's  suggestion,  this  is  not a  case          involving  prosecutorial  misconduct designed  to  "harass or  to          achieve tactical advantage over the accused," which would warrant          review under the "strictest scrutiny" standard.  See Arizona, 434                                                           ___ _______          U.S.  at 508.  The district court specifically found that neither          party  could be faulted for  failing to discover  the conflict of          interest prior to trial.  See United States v. Simonetti, No. 92-                                    ___ _____________    _________          22, slip op. at 1-2 & n.2 (D. Me. Jan. 27, 1993).                                         -6-          substitute counsel who did not have a conflict of interest.   The          judge asked new counsel whether  he could suggest other remedies,          whether Simonetti  wished  to  continue  the case  with  his  new          attorney,  or whether a waiver  could be obtained from Skinsacos.          The  court  even  considered  continuing the  case  to  allow new          counsel  time to prepare the case from where Attorney Lilley left          off.  This solution was rejected because a continuance would have          been unfairly  prejudicial to codefendant.   Likewise, to proceed          with  the  codefendant  and  later reconvene  the  jury  to  hear          Simonetti's case  was not viable because the  judge believed that          the   jury  could   not  return   a  fair   verdict  under   such          circumstances.                    In sum, the judge considered alternatives, implored the          original counsel and new counsel to proffer remedies, and devoted          ample  time and  energy  to  resolve  the  conflict  of  interest          problem, while  remaining mindful of Simonetti's  strong interest          in completing his  trial before  the first jury  impaneled.   The          court could not devise  a remedy that would resolve  the conflict          of interest and permit  the case to continue before  the original          jury.   As a  result,  mistrial was  a manifest  necessity.   The          district court therefore did not abuse its discretion by granting          the mistrial over defendant's objection.                    Simonetti also  argues that,  even absent  less drastic          alternatives  to mistrial,  retrial is  barred where  mistrial is          caused by governmental misconduct.   Simonetti concedes that this          is  not a case in  which the prosecution  intentionally goaded or                                         -7-          provoked the mistrial.   See Oregon, 456  U.S. at 679.   However,                                   ___ ______          retrial also may  be barred where "egregious  or unfair behavior"          by  the  prosecution   "could  be  considered,  objectively,   as          equivalent to an intentional effort to provoke mistrial."  United                                                                     ______          States v. Larouche Campaign,  866 F.2d 512, 518 (1st  Cir. 1989).          ______    _________________          The inquiry into the  prosecutor's intent calls for a  finding of          fact.  Id.  The district court found that the failure to disclose                 ___          the  references to  Nick Skinsacos  in  the redacted  reports was          inadvertent,  although careless.   See supra  notes 1  & 6.   The                                             ___ _____          record evidence supports this factual finding.                    Simonetti finally urges that we adopt the novel rule of          Hylton  v. Eighth Judicial Dist.  Court, Dept. IV,  103 Nev. 418,          ______     ______________________________________          743 P.2d 622  (Nev. 1987), that  bars retrial where  governmental          misconduct which  rises to the level  of "inexcusable negligence"          causes  a mistrial.  In this case, the mistrial resulted from the          conflict of  interest, not the unintentional  failure to disclose          potentially  exculpatory evidence, see supra note 1.  Under these                                             ___ _____          circumstances, the  government simply  could not have  known that          Attorney  Lilley's law  firm had  represented Skinsacos,  who was          only a  peripheral player  in Simonetti's  case, some  five years          earlier.   We thus  do not confront  a case in  which inexcusable          neglect by the prosecutor  caused the mistrial, and consequently,          have no cause to consider the wisdom of Nevada's rule.                    We  affirm the  decision of  the district court  as the                        ______          Double Jeopardy Clause poses no bar to a new trial.                                         -8-
