United States v. Mark Smith ( 2019 )

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NOT FOR PUBLICATION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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