United States v. McIntyre , 384 F. App'x 805 ( 2010 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 29, 2010
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Nos. 08-3304 & 09-3173
v. (D.C. No. 2:06-CR-20047-CM-JPO-3)
(D. Kan.)
TERRY J. MCINTYRE, JR., a/k/a T-Mac,
a/k/a Florida,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before O'BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and GORSUCH,
Circuit Judge.
Following a second trial, Terry J. McIntyre, Jr. was convicted of various offenses
arising out of his involvement in a drug distribution conspiracy in Lawrence, Kansas.
Prompted by what it concluded to be manifest necessity, the district court declared a
mistrial during his first trial after his counsel reported that a former client might have
purchased drugs from McIntyre and his co-defendants and might be called to testify.
*
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
McIntyre later moved to dismiss the indictment which formed the basis of the second trial
on double jeopardy grounds. The court denied the motion, again concluding the mistrial
was warranted by manifest necessity. McIntyre appeals from that decision and also from
the court’s denial of his pre-trial motion to suppress. We affirm.
I. BACKGROUND
In May 2005, the Lawrence Police Department obtained information from a
confidential informant (CI) regarding crack cocaine dealers in Lawrence, Kansas. The CI
assisted the police in ten controlled purchases. Upon further investigation, the police
identified McIntyre and his co-defendants as belonging to a group of drug dealers known
as the “Blue Crew.” (R. Vol. II at 47.) The police also obtained evidence against
McIntyre during a traffic stop on September 28, 2005, which was unrelated to the larger
investigation. On March 31, 2006, McIntyre was charged, along with four other
defendants, in a seventeen-count indictment. Specifically, McIntyre was charged with
seven counts relating to his involvement in distributing crack cocaine from 2004 to 2006.
Zachary L.K. Williams and Johnnie K. Williams, III, were charged in the same
indictment and were tried jointly with McIntyre.
A. Motion to Suppress
Prior to the first trial, McIntyre filed a motion to suppress evidence from the
September 28, 2005 vehicle stop arguing Officer Branson Star lacked reasonable
suspicion for the stop. Star testified to the following at the suppression hearing.
At approximately 2:30 a.m. on September 28, 2005, he was on routine patrol when
he observed a vehicle “moving very slowly through the parking lot [of a hotel] with its
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[head]lights off.” (R. Supp. Vol. I at 49.) He thought the vehicle “was suspicious” and
decided he “needed to investigate.” (Id. at 47, 49.) He turned his patrol car around and
observed the vehicle, now with its lights on, pull out of the hotel parking lot. As he
pulled up to the vehicle, he observed two people inside, neither of whom turned towards
him; they continued on their way.
Star followed. He ran a registration check and learned the vehicle was not listed
as stolen and was registered to Deborah Garrett at a local address. He knew two of
Garrett’s relatives—“a son [and a] nephew”—had previously been involved in “[g]uns,
drugs, other crimes, alcohol-related crimes.” (Id. at 51.) He was suspicious because the
vehicle was associated with these individuals and was located at a hotel, even though it
was registered locally. According to Star, automobile burglaries and narcotic-related
activity frequently take place at hotels and he had been involved in a number of
investigations involving hotels. More specifically, he had been involved in a drug
investigation at this particular hotel involving one of the co-defendants in this case,
Michael Beal, just a few month earlier. Star “made the decision to stop the vehicle”
because he wanted to “identify the occupants” and “see if their story was plausible for
driving through the parking . . . lot with no lights on . . . .” (Id. at 52-53.)
After gathering the above information, Star stopped the vehicle approximately six
blocks from the hotel. He approached the driver’s side door and asked the driver and
passenger for their identification. The passenger stated he had no identification but said
his name was Terry McIntyre. The officer explained why he stopped the vehicle. He
then walked to the passenger side of the car to ask McIntyre for his personal information.
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During that interaction, Star observed “a white substance wrapped in plastic between
[McIntyre’s] legs.” (Id. at 57.) He believed the substance to be crack cocaine so he
waited until another officer arrived and then asked McIntyre to step out of the vehicle and
placed him under arrest. McIntyre volunteered that there was a gun in his pocket. The
officers recovered the weapon, a package of a white substance and $620 in cash from
McIntyre’s person. From the vehicle, they recovered a digital scale and two bags
containing a white powder. All of the bags were found to contain cocaine.
After hearing this evidence and considering the arguments of counsel, the court
denied McIntyre’s motion to suppress concluding “Officer Star acted reasonably in
stopping [McIntyre].” (Id. at 129.)
B. First Trial
McIntyre’s first trial commenced on April 1, 2008. He was tried along with two
co-defendants, Zachary Williams and Johnnie Williams. On the sixth day of trial, April
10, 2008, McIntyre’s counsel, Jacquelyn Rokusek, advised the court she had withdrawn
from representing Stephen Barbee in another case.1 Rokusek had contacted the
government approximately six weeks prior to trial to ask whether there was a conflict of
interest arising out of her representation of both McIntyre and Barbee. The government
stated it was not aware of any conflict and Barbee apparently advised Rokusek he was
not familiar with any of the individuals involved in this case. Rokusek later learned both
cases involved the same CI and Barbee’s phone number appeared on phone records in
1
At this point, the jury had heard the testimony of five prosecution witnesses and
118 exhibits had been admitted into evidence.
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this case, indicating he may have purchased drugs from the Blue Crew.
Rokusek informed the court she had contacted the Kansas Disciplinary
Administrator’s Office who advised her she had a conflict as to her representation of
Barbee but not as to McIntyre. According to Rokusek, she told McIntyre about the
potential conflict; nevertheless, he wanted her to continue to represent him. The
government was not satisfied McIntyre could waive the conflict and expressed concern
that Rokusek might be a witness based on the apparently conflicting statements given to
her by Barbee. After further questioning by the court, Rokusek acknowledged McIntyre
might not be able to waive the conflict of interest. She stated: “I can’t tell you
definitively that . . . it would be a knowing and intelligently made waiver, simply because
I’m limited in what I can discuss with [McIntyre] regarding this issue as it is protected by
the attorney/client privilege, my conversation with my other client.” (Id. at 732.)
The court asked counsel to submit briefs regarding whether there was a basis for a
mistrial as to McIntyre and, if so, how that would affect his co-defendants, the Williams
brothers. The court stated it was “leaning towards” finding a mistrial and asked counsel
to state whether they believed there were any alternatives. (R. Vol. II at 752.) Rokusek
requested the court “order that the government be prohibited from calling Mr. Barbee as a
witness in this case” so that “no conflict would exist.” (Id. at 753.) Counsel for the co-
defendants and the government suggested three other alternatives: (1) obtaining a waiver
of attorney/client privilege from Barbee; (2) severing McIntyre from the trial and
proceeding against the Williams brothers; and (3) delaying the trial for 30 to 60 days to
allow a new attorney to represent McIntyre.
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On April 14, the court proposed its ruling and then asked the attorneys to state any
objections on the record. It concluded Rokusek could not proceed as McIntyre’s counsel
because there was an actual conflict of interest regarding her representation of McIntyre
and “a wavier could not cure the present problems” because McIntyre “is unable to give a
knowing waiver.” (Id. at 789-90.) It then said: “In considering whether declaring a
mistrial is appropriate, this court uses discretion to determine whether such declaration is
compelled by manifest necessity. Federal Rule of Criminal Procedure 26.3 requires this
court to solicit alternatives from counsel before ordering a mistrial.” (Id. at 790.)
The court considered—and rejected—each of the alternatives counsel proposed. It
rejected the alternative of prohibiting Barbee from testifying because Barbee “may serve
as a witness for the government or for [co-]defendants” and “[t]he court will not prohibit
the other defendants from calling witnesses that may have potentially beneficial
information.” (Id. at 791.) In addition, the court noted “[t]his alternative [prohibiting
Barbee from testifying] does not solve the problem that Miss Rokusek may have learned
information related to the confidential informant through her representation of Mr.
Barbee, and may therefore be unable to effectively cross-examine the confidential
informant.” Id.
Because the court concluded “there [were] no viable alternatives to remedy the
problems created by Miss Rokusek’s conflict” it held “a mistrial for Terry McIntyre
[was] a manifest necessity.” (Id. at 793.) It declared mistrials as to all defendants,
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overruling the objections of all three.2 Rokusek again requested the court prohibit Barbee
from testifying at trial. It overruled the objection and announced its final ruling:
First, the court finds that Miss Rokusek has an unwaivable conflict of
interest. Miss Rokusek is unable to continue to represent defendant Terry
McIntyre in this trial. Requiring defendant Terry McIntyre to proceed
without counsel or with new counsel would significantly hinder his Sixth
Amendment right . . . to effective assistance of counsel and his right[] to a
fair trial. Without any viable alternatives, the court finds a mistrial for
defendant Terry McIntyre necessary. Second, because defendant Terry
McIntyre cannot proceed in the current trial, the court severs his trial from
the remaining defendants. Third, [the] court finds that the resulting trial
could also violate the rights of defendant Johnnie Williams and defendant
Zachary Williams. Without any viable alternatives, the court finds that
mistrials for defendants Johnnie Williams and Zachary Williams are
necessary.
(Id. at 811-12.)
C. Motion to Dismiss and Second Trial
The government filed a third superseding indictment on April 24, 2008, which
expanded the time period for the conspiracy and alleged two additional counts against
McIntyre.3 McIntyre moved to dismiss the indictment based on double jeopardy. After a
hearing the court denied the motion, explaining “it went to great lengths to discover and
evaluate all possible options for continuing [the first trial].” (R. Supp. Vol. II at 59.)
“[T]here was no bad faith or intent to deceive on the part of the government.” (Id. at 60.)
It “considered . . . carefully” the option of prohibiting Barbee from testifying but
2
McIntyre’s rights are not co-extensive with the rights of Zachary Williams and
Jonnie Williams. Rokusek’s representation of Barbee affected McIntyre and his co-
defendants in different ways. The Williams brothers have filed separate appeals, each
challenging, inter alia, the necessity of a mistrial. We do not consider whether the
mistrial was warranted as to them.
3
McIntyre does not complain about the broadened scope of this indictment.
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concluded it was not “a viable alternative.” (Id.) The court “affirm[ed] its finding that a
mistrial for Terry McIntyre was a manifest necessity.” (Id. at 61.)
McIntyre’s second trial commenced in November 2008. He was tried with
Zachary Williams and Johnnie Williams. The jury convicted him of nine of ten counts;4
the court sentenced him to 322 months imprisonment. He moved for a new trial which
the court denied. He appeals from his conviction and sentence complaining of the denial
of (1) his motion to dismiss and (2) his motion to suppress.5
II. DISCUSSION
A. Motion to Dismiss
“When a mistrial has been declared, the Double Jeopardy Clause precludes a
retrial of the defendant unless the defendant consented to the mistrial, or unless the
mistrial was compelled by manifest necessity.” United States v. Crotwell, 896 F.2d 437,
439 (10th Cir. 1990) (quotations, citation and footnote omitted). The district court
concluded the mistrial was compelled by manifest necessity. We review this decision for
an abuse of discretion. United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992).
“[T]he Supreme Court has refused to adopt a mechanistic formula for the presence of
manifest necessity, and has repeatedly reiterated that trial judges must be accorded broad
discretion to declare a mistrial.” Walck v. Edmondson, 472 F.3d 1227, 1236 (10th Cir.
4
Barbee did not testify in the second trial.
5
On October 30, 2008, McIntyre appealed from the district court’s denial of his
motion to dismiss the third superseding indictment. His appeal was assigned Case No.
08-3304. It was abated on December 2, 2008. McIntyre appealed from the final
judgment on June 17, 2009. On June 26, 2009, the order abating his appeal was vacated.
His current appeal (Case No. 09-3173) has been consolidated with his prior appeal.
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2007) (quotations and citations omitted). In considering whether a mistrial resulted from
manifest necessity, we generally consider many factors,6 but we focus our discussion
here on McIntyre’s arguments.
McIntyre contends the mistrial was not compelled by manifest necessity because
the court could have proceeded with the trial if it had simply prohibited Barbee from
testifying. We can certainly consider whether the possible prejudice created by
Rokusek’s representation of Barbee could be “cured” by some action other than a mistrial
6
One commentator has listed the factors relevant to the manifest necessity
determination as follows:
(1) the source of the difficulty that led to the mistrial—i.e., whether the
difficulty was the product of the actions of the prosecutor, defense counsel,
or trial judge, or were events over which the participants lacked control; (2)
whether the difficulty could have been intentionally created or manipulated
for the purpose of giving the prosecution an opportunity to strengthen its
case; (3) whether the possible prejudice or other legal complications created
by the difficulty could be “cured” by some alternative action that would
preserve the fairness of the trial; (4) whether the record indicates that the
trial judge considered such alternatives; (5) whether any conviction
resulting from the trial would inevitably be subject to reversal on appeal;
(6) whether the trial judge acted during the “heat of the trial confrontation”;
(7) whether the trial judge’s determination rests on an evaluation of the
demeanor of the participants, the “atmosphere” of the trial, or any other
factors that similarly are not amenable to strict appellate review; (8)
whether the trial judge granted the mistrial solely for the purpose of
protecting the defendant against possible prejudice; (9) whether the
evidence presented by the prosecution prior to the mistrial suggested a
weakness in the prosecution’s case (e.g., a witness had failed to testify as
anticipated); (10) whether the jurors had heard enough of the case to
formulate some tentative opinions; (11) whether the case had proceeded so
far as to give the prosecution a substantial preview of the defense’s tactics
and evidence; and (12) whether the composition of the jury was unusual.
Walck, 472 F.3d at 1236 n.5 (quoting 5 Wayne R. Lafave et al., Criminal Procedure
25.2(c) n.18 (2d ed. 1999).
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and, if so, whether the trial judge considered such alternative. See supra n.6. Here,
Rokusek raised the alternative of prohibiting Barbee from testifying before the district
court but the court rejected it because it did not want to prohibit McIntyre’s co-
defendants from calling Barbee as a witness. Notably, Rokusek advised the court she
“was wanting to call [Barbee] as a witness in this case because I felt there was
exculpatory information . . . .” (R. Vol. II at 716.) Even if the court had prohibited
Barbee from testifying, it would not have solved the problem regarding Rokusek’s
continued representation of McIntyre. The court concluded she had a conflict of interest
that McIntyre could not waive because she could not tell him what she learned from
Barbee. Thus, McIntyre would have had to proceed with new counsel, following a delay
of sufficient length to allow the new counsel to become familiar with the case. This
would have presented a significant hardship to the jury, who was originally advised the
trial would last four to six weeks. We have explained, in a similar context: “[T]he court
was not required to accept a solution which remedied only one of the problems or offered
temporary relief.” United States v. Calabrese, 645 F.2d 1379, 1383 (10th Cir. 1981).
McIntyre argues “[t]he government caused the situation leading to the mistrial.”
(Appellant’s Br. at 17.) If this were true, it would certainly factor into our analysis. See
supra n.6. But it is not. The court specifically found the government did not act in bad
faith in failing to inform Rokusek of Barbee’s involvement prior to trial and we see no
reason to doubt that finding. Indeed, McIntyre’s counsel conceded at oral argument that
there was no bad faith here. McIntyre also contends the mistrial was “prematurely . . .
granted” because Barbee was never actually called as a witness. (Id.) This argument
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ignores the court’s conclusion that Rokusek could not continue to represent McIntyre
because McIntyre could not waive the conflict of interest.
McIntyre relies on Walck to support his position. In Walck, the state trial court
declared a mistrial over the defendant’s objection when a key witness went into early
labor and was taken to the hospital to deliver her child after the jury was sworn and heard
testimony. 472 F.3d at 1231. We affirmed the district court’s grant of the defendant’s
petition for habeas relief because we concluded “[the witness’s] absence did not give rise
to manifest necessity.” Id. at 1238. We explained: (1) her testimony was not “absolutely
necessary;” (2) “the prosecution proceeded to trial in the face of a known risk that [the
witness] would be unavailable at trial;” (3) the reason for the mistrial—witness
unavailability—“was not significant enough to give rise to manifest necessity;” and (4)
“the state trial judge did not sufficiently consider the viable and reasonable alternatives to
a mistrial.” Id. at 1238-40.
Here, we are not reviewing a case of witness unavailability but instead, a case
involving a conflict of interest between an attorney and a client. Thus, the first three
considerations factoring into our decision in Walck are inapplicable here. And, unlike in
Walck, the court here asked the parties to suggest alternatives to a mistrial, as required by
Rule 26.3 of the Federal Rules of Criminal Procedure.7 A more analogous case is
Calabrese, 645 F.3d 1379.
7
Fed. R. Crim. P. 26.3 states: “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.”
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In Calabrese, the trial court sua sponte granted a mistrial as to all defendants after
counsel for one of the co-defendants attempted to impeach a government witness by
inquiring whether the witness had lied in an affidavit filed in an earlier criminal
proceeding. “[T]he [same] attorney had represented the witness in the earlier proceeding
and had prepared the affidavit he was using for impeachment.” Id. at 1382. We held the
district court did not err in denying the defendant’s motion to dismiss the second
indictment on double jeopardy grounds because the mistrial was compelled by manifest
necessity. We explained:
The court below was confronted with a kaleidoscope of problems,
including a possible violation of the attorney-client privilege, the attorney’s
role as both an advocate and a witness in the proceedings, and a
controversy over the ethical propriety of the attorney’s prior representation
of the witness.
Id. at 1383. We noted “the mistrial declaration was not caused by prosecutorial or
judicial overreaching.” Id.
The district court here was presented with a similar “kaleidoscope of problems”
and its decision to grant a mistrial did not result from “prosecutorial or judicial
overreaching.” It considered various alternatives to declaring a mistrial and, after
thorough consideration, concluded none were viable. Like the district court in Calabrese,
the trial court here acted with the principal goal of protecting the interests of McIntyre
and his co-defendants. In light of the “broad discretion” afforded trial judges to declare a
mistrial, see Walck, 472 F.3d at 1236, we conclude the court did not abuse its discretion
in denying McIntyre’s motion to dismiss.
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B. Motion to Suppress
“When reviewing the denial of a motion to suppress, we view the evidence in the
light most favorable to the government, accept the district court’s findings of fact unless
clearly erroneous, and review de novo the ultimate determination of reasonableness under
the Fourth Amendment.” United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004).
In assessing the constitutionality of an investigatory stop, we ask whether
the circumstances demonstrate that law enforcement officers had
reasonable suspicion that criminal activity may have been afoot. In making
this determination, we look at the totality of the circumstances to determine
whether a particularized and objective basis, viewed from the standpoint of
an objectively reasonable police officer, existed for suspecting legal
wrongdoing.
United States v. Lopez, 518 F.3d 790, 797 (10th Cir. 2008) (citations omitted).
McIntyre contends the district court erred in denying his motion to suppress only
because “there [was] . . . insufficient evidence of potential criminal activity . . . .”
(Appellant’s Br. at 24.) He argues: “Driving without headlights for a few seconds at
most does not qualify as even a minimally objective justification for a stop.” (Id.)
However, he also acknowledges—as he must—that Star did not stop the vehicle in which
he was traveling solely because he observed it being driven without headlights. Star also
reasonably suspected criminal activity because the vehicle was traveling through the
parking lot of a hotel at 2:30 a.m. even though it was registered to an individual with a
local address—an individual whose relatives had been involved in “[g]uns, drugs, other
crimes, alcohol-related crimes.” (R. Supp. Vol. I at 51.)
Based upon his law enforcement experience, Star suspected the vehicle might have
been involved in an automobile burglary or drug-related activity. Tellingly, he had been
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involved in a drug investigation—involving one of McIntyre’s co-defendants—at the
same location only a few months prior to this stop. “[O]fficers are not required to ignore
the relevant characteristics of a location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation.” Illinois v. Wardlow, 528 U.S.
119, 124 (2000). The stop here occurred in an area of expected criminal activity; a factor
relevant to the reasonable suspicion analysis. See id.McIntyre argues there may have been an entirely innocent explanation for the
conduct observed by Star. Though possibly true, it does not negate a finding of
reasonable suspicion. “[O]fficers are permitted . . . to draw inferences and make
deductions that might well elude an untrained person.” United States v. Moore, 22 F.3d
241, 243 (10th Cir. 1994) (quotations omitted).
In analyzing whether a given set of factors gives rise to the requisite
reasonable suspicion, we . . . must be careful to judge the officer’s conduct
in light of common sense and ordinary human experience but also to grant
deference to a trained law enforcement officer’s ability to distinguish
between innocent and suspicious circumstances.
Lopez, 518 F.3d at 797 (quotations omitted). Viewed under this standard and accepting
the trial court’s factual findings, we agree Star had reasonable suspicion to stop the
vehicle. The court did not err in denying McIntyre’s motion to suppress.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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