                  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 &amp; 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 &amp;  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 &amp; 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  &amp; 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-
