                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-10-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4654




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                                                                NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                          Nos. 04-4654, 04-4679, 04-4774, 05-1015
                                       ___________

                    UNITED STATES OF AMERICA; GOVERNMENT
                             OF THE VIRGIN ISLANDS

                                            vs.

                                   NORMA MEDINA1,

                                            Appellant at No. 04-4654
                                       ___________

                    UNITED STATES OF AMERICA; GOVERNMENT
                             OF THE VIRGIN ISLANDS

                                            vs.

                                LEONARDO RODRIQUEZ

                                            Appellant at No. 04-4679
                                       ___________

                    UNITED STATES OF AMERICA; GOVERNMENT
                             OF THE VIRGIN ISLANDS

                                            vs.

                                 ORLANDO MELENDEZ

                                            Appellant at No. 04-4774
                                       ___________




1.
     Appellant Norma Medina died on January 7, 2006.
                 UNITED STATES OF AMERICA; GOVERNMENT
                          OF THE VIRGIN ISLANDS

                                         vs.

                                JOSE RODRIGUEZ

                                         Appellant at No. 05-1015
                                    ___________


                     APPEAL FROM THE DISTRICT COURT
                          OF THE VIRGIN ISLANDS

                    (D.C. Nos. 02-cr-00011-12, 02-cr-00011-19,
                           02-cr-00011-21, 02-cr-00011-18)
               Chief District Judge: The Honorable Raymond L. Finch
                                    ___________

                           ARGUED DECEMBER 6, 2005

                         BEFORE: SCIRICA, Chief Judge,
                         McKee and Nygaard, Circuit Judges.

                                (Filed April 10, 2006)
                                    ___________


Warren B. Cole, Esq. (Argued)
Hunter, Cole & Bennett
1138 King Street, Suite 301
Christiansted, St. Croix, USVI, 00820
              Counsel for Appellant, Norma Medina

Maxwell D. McIntosh, Esq.
1009 North Street
Christiansted, St. Croix, USVI 00820
              Counsel for Appellant, Leonardo Rodriquez




                                          2
Chetema M. Lucas, Esq. (Argued)
Law Offices of Douglas L. Capdeville
2107 Company Street, Lot #4
P. O. Box 224191
Christiansted, St. Croix, USVI 00822
              Counsel for Appellant, Orlando Melendez

Vincent A. Colianni, II, Esq.
Elizabeth A. Kliesch, Esq. (Argued)
Colianni & Colianni
1138 King Street
Christiansted, St. Croix, USVI 00820
              Counsel for Appellant Jose Rodriguez


Bruce Z. Marshack, Esq.
Delia Smith, Esq. (Argued)
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix, USVI 00820
              Counsel for Appellee

                                       ___________

                              OPINION OF THE COURT
                                   ___________


NYGAARD, Circuit Judge.

                                           I.

      Appellants were tried on charges of participating in a wide-ranging drug

conspiracy. At a lunch break in the trial, a government witness, Francisco Rameau,

refused to continue to his testimony. According to Government counsel, Rameau was

crying and, as alleged by Government counsel, in no condition to continue. However,

Rameau did not personally attest to this. Government counsel simply walked into the

                                           3
courtroom and told the District Judge about Rameau’s position and stated that as a

consequence, they could not continue prosecuting the conspiracy counts. Defense counsel

moved to strike all of Rameau’s testimony and relevant portions of a video shown to the

jury, and to have the District Judge instruct the jury to disregard it. Defense counsel

specifically stated that they did not want a mistrial. Although it is apparent that

Government counsel wanted a mistrial declared, he did not affirmatively move for one.

       The District Court made no effort to determine if Rameau could be recalled to the

stand and questioned by the Government as a hostile witness, nor did the Court subpoena

him or otherwise try to compel him to testify. The Court also made no effort to determine

if Rameau could be effectively cross examined despite his refusal to cooperate with the

prosecution. The Judge simply stated that since Rameau’s testimony was vivid, clear and

graphic, the jury would probably allow his testimony to affect their deliberation on the

substantive counts, and therefore, a curative instruction would be ineffective. The

District Judge declared a mistrial, sua sponte, as to all four Appellants because he

believed that jury prejudice could not be cured by an appropriate instruction.

       After the case was calendared for retrial, Appellants filed a motion to dismiss the

indictment on Fifth Amendment double jeopardy grounds. The District Judge denied the

Defendants’ motion. Defendants appeal this judgment.2


2.
 All four Appellants were tried together, their briefs raise substantially the same issues
and their appeals are consolidated. In summary, Appellants challenge the District Judge’s
sua sponte declaration of a mistrial, their subsequent reprosecution and the denial of their
                                                                                 (continued...)

                                              4
       A denial of a motion to dismiss based upon double jeopardy is a final decision

immediately appealable under Abney v. United States, 431 U.S. 651, 662; 97 S. Ct. 2034,

2041; 52 L. Ed.2d 651, 662 (1977). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We will reverse.

                                              II.

                                              A.

       Whether the declaration of a mistrial is mandated by “manifest necessity” is a

mixed question of law and fact which we review de novo. United States ex rel. Russo v.

Superior Court of New Jersey, 483 F.2d 7, 15 (3d Cir. 1973). Although the trial judge

has wide discretion in deciding what factual situations merit the grant of a mistrial,“trial

judges may declare a mistrial without barring reprosecution only in extraordinary

circumstances.” Id. at 13. “‘Manifest necessity’ must be present . . . for a trial judge to

declare a mistrial and still preserve for the state the right to prosecute a defendant.” Id.

Because placing a defendant in double jeopardy is prohibited by the Constitution, a close

question of whether manifest necessity exists should be answered in favor of the

defendant who has the strong interest of having his case resolved in a single proceeding.



2.
 (...continued)
motions to dismiss.

                                               5
Id. at 17. When a trial court declares a mistrial, sua sponte, retrial at a later date for the

same offense is not automatically barred. However, when the basis for the District

Court’s grant of a mistrial is the unavailability of a prosecution witness, “‘the strictest

scrutiny is appropriate.’” United States v. Rivera, 384 F.3d 49, 56 (3d Cir. 2004) (citing

Arizona v. Washington, 434 U.S. 497, 508; 98 S. Ct. 824, 832; 54 L. Ed.2d 717, 730

(1978)); Crawford v. Fenton, 646 F.2d 810, 816-817 (3d Cir. 1981).

       What conditions constitute “manifest necessity” is not a mechanical inquiry. The

determination must be based on the particular facts and circumstances of the case giving

rise to the declaration of a mistrial. Crawford, 646 F.2d at 817. “The District Court . . .

must take great care to ensure that there are no available alternatives before declaring a

mistrial” when it is due to the absence of a prosecution witness. Rivera, 384 F.3d at 57

(emphasis added); see also Wade v. Hunter, 336 U.S. 684; 69 S. Ct. 834; 93 L. Ed. 974

(1949) (mistrial was appropriately declared during a World War II-era court martial when

a witness became seriously ill and the proceedings would have to relocate due to hostile

advancing forces).

       Declaring a mistrial is a drastic legal measure. Because the defendant has a right

to have the case decided against him at one time in front of one tribunal, and the public

has an interest in seeing a criminal prosecution proceed to verdict, mistrials are


                                               6
disfavored. See Wade, 336 U.S. at 689, 69 S. Ct. at 837; Rivera, 384 F.3d at 55. Perhaps

most critical to this case, a mistrial should not be declared without the District Judge

giving “prudent consideration of reasonable alternatives” as well as the constitutional

importance and implications of his decision. See Rivera 384 F.3d at 56; Washington, 434

U.S. at 514, 98 S. Ct. at 834-35. Federal Rule of Criminal Procedure 26.3 requires that

“before ordering a mistrial, the court must give each defendant and the government an

opportunity to comment on the propriety of the order, to state whether that party consents

or objects, and to suggest alternatives.”

       In this case, the District Judge failed to consider the implications of declaring a

mistrial. Once he was made aware of Rameau’s alleged refusal to continue to testify for

the prosecution, he failed to examine the witness personally, or allow defense counsel to

examine him. Morever, he only briefly considered two possibilities: (1) strike Rameau’s

testimony and proceed with the trial; or (2) declare a mistrial. Little time was spent

considering either – or any other – alternatives, and no factual record was established

upon which the finding of manifest necessity could be based.3




3.
 In fact, toward the close of the proceedings, upon defense counsel’s request to address
the court and for the District Judge to consider “some other things,” the District Judge
stated, “No. I’m done. I’m not changing my mind.” (App. at 42).

                                              7
       This is not a situation where “critical prosecution evidence” was unavailable. See

Washington, 434 U.S. at 508, 98 S. Ct. at 832. Rameau was not unavailable in the sense

that he was seriously ill, incompetent or physically outside the court’s jurisdictional

bounds. Government counsel simply said that he was “not willing to testify any further in

this matter,” and that he was “crying and fairly distraught” about having to testify about

what went on in the conspiracy. The District Judge could have considered a number of

reasonable alternatives: placing Rameau under subpoena and forcing him to take the

stand or face the punishment of contempt; having the Government continue to examine

him as a hostile witness; or – perhaps most obviously – granting a recess to allow Rameau

to compose himself and reconsider his position, to name a few.4 However, he failed to

consider these options and failed to make any factual record showing that these or other

options were unavailing. Instead he simply opined that the situation could not be cured


4.
 Consideration of these reasonable alternatives helps a district court make an informed
decision and also assists the reviewing court in deciding if manifest necessity warranted
the grant of a mistrial. Examination of a witness who refuses to testify under such
circumstances could reveal, for example, if the witness was coerced or threatened. See
United States v. Stevens, 177 F.3d 579, 588 (6th Cir. 1999) (“[W]e leave open the
possibility of permitting retrial in a case . . . where the district court expressly found a
‘distinct possibility’ that the defendant had threatened the witness.”); United States v.
Mastrangelo, 662 F.2d 946, 952 (2d Cir. 1981) (“[T]he test must be simply whether at the
time the trial judge is faced with the question he reasonably concludes that there is a
distinct possibility that the defendant participated in making the witness unavailable, at
least where, as here, the Government is totally without fault . . . .”).

                                              8
by an appropriate jury instruction. This record refutes the conclusion that a mistrial was

manifestly necessary.

       We conclude that the District Judge failed to “carefully consider alternatives

available to [him.]” Rivera, 384 F.3d at 56. “Where a district court sua sponte declares a

mistrial in haste, without carefully considering alternatives available to it, it cannot be

said to be acting under manifest necessity.” See id. (citing Love v. Morton, 112 F.3d 131,

134-35 (3d Cir. 1997)). Because the mistrial was not manifestly necessary, it was

improper.

                                              B.

       The Double Jeopardy Clause of the Fifth Amendment prohibits “any person be

subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. Jeopardy attaches in a criminal case when the jury is empaneled and sworn.

Crist v. Bretz, 437 U.S. 28, 35-38; 98 S. Ct. 2156, 2160-63; 57 L. Ed.2d 24, 31-34 (1978).

A defendant has an individual right “to have his trial completed by a particular tribunal.”

Wade, 336 U.S. at 689, 69 S. Ct. at 837. Hence, a defendant may not be reprosecuted

after the first trial ended with an improperly declared mistrial because it “is barred by

the Double Jeopardy Clause.” Rivera, 384 F.3d at 56




                                               9
       Here, the jury was empaneled and sworn on March 1, 2004, and jeopardy attached

on that date. See Crist, 437 U.S. at 35-38, 98 S. Ct. at 2160-63. The mistrial was

declared March 10, 2004, after jeopardy had attached. Because the District Judge

improperly declared a mistrial as to all four defendants, retrial on the same offenses with

which they were charged in the first trial is barred under the Fifth Amendment’s Double

Jeopardy Clause.

                                             III.

       The Order of the District Court will be reversed and the cause remanded to the

District Court for it to grant the motions to dismiss.




                                              10
