United States v. Glenn Wong ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10469
Plaintiff-Appellee, D.C. No.
1:17-cr-00020-RVM-2
v.
GLENN D. WONG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Guam
Ramona V. Manglona, Chief Judge, Presiding
Submitted November 5, 2018**
Seattle, Washington
Before: McKEOWN and FRIEDLAND, Circuit Judges, and GAITAN,*** District
Judge.
Glenn Wong appeals the denial of his motion to dismiss the indictment on
double jeopardy grounds. Because the parties are familiar with the facts, we do not
*
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).
***
The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
recite them here. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Wong’s first trial ended when the court declared a mistrial based on manifest
necessity. Wong argues the district court abused its discretion in finding manifest
necessity, and that double jeopardy therefore attached and bars the indictment. We
review de novo a denial of a motion to dismiss an indictment, and we review for
abuse of discretion a finding of manifest necessity for a mistrial. United States v.
Bates, 917 F.2d 388, 392 (9th Cir. 1990); United States v. Chapman, 524 F.3d
1073, 1082 (9th Cir. 2008).
Where, as here, the district court based its manifest necessity determination
on its “observations and personal assessment that a fair trial would be impossible,”
we afford that view “special deference.” Chapman, 524 F.3d at 1082. Our review
focuses on the procedures employed by the district court. Id. We consider
whether the court heard the opinions of the parties about the propriety of the
mistrial, considered the alternatives to a mistrial and chose the alternative least
harmful to Wong’s rights, acted deliberately instead of abruptly, and based its
judgment on evidence in the record. Id.The district court held an extensive hearing at which it considered the
parties’ input and alternatives to a mistrial, including redacting prejudicial
information. Ultimately, the court concluded that it would have been futile and
unfair to the Government to try the case without identifying by name David Lujan,
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counsel to Wong’s co-defendant Mark Smith, because Lujan’s previous
employment was directly relevant. The court further reasoned—and Wong
agreed—that it would prejudice Wong for Lujan to continue representing Smith,
because identifying Lujan could taint the jury’s perception of both defendants.
Seeing no viable alternatives, the court disqualified Lujan and declared a mistrial
out of manifest necessity. These determinations satisfy each of the Chapman
factors, id., were well within the district court’s discretion, and complied with
Federal Rule of Criminal Procedure 26.3.
The need to declare a mistrial did not manifest until after empaneling the
jury, so the timing here is not suspect. Cf. United States v. Sammaripa, 55 F.3d
433, 435 (9th Cir. 1995). The Government moved before trial to disqualify Lujan,
but the district court denied the motion as speculative. Only after trial began did
the prejudice crystallize with respect to Lujan’s name.
Nor does it undermine the manifest necessity finding that anticipated
testimony from Anthony Perez, a defense expert and former law firm partner of
Lujan, may have been privileged. Wong makes no showing to this end, and the
case on which he relies, United States v. Rowe, does not support a presumption that
all communications between members of a law firm are privileged. 96 F.3d 1294,
1296 (9th Cir. 1996). Notably, the district court disqualified Lujan (and as a result,
found manifest necessity for a mistrial) not only based on Perez’s anticipated
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testimony, but also because other evidence would inevitably have invoked Lujan’s
name.
The district court acted within its discretion in finding manifest necessity for
a mistrial, and it therefore did not err by denying the motion to dismiss the
indictment.
AFFIRMED.
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