United States v. John Rumpf, Joanne Hanson, Gloria Masters, and Gary James Griffin , 576 F.2d 818 ( 1978 )

SETH, Chief Judge.

The four defendants were convicted of conspiracy to possess marijuana with intent to distribute, contrary to 21 U.S.C. § 846, and have taken this joint appeal. The first trial ended with a mistrial, and the conviction concluded the second trial.

The appellants assert that there was no probable cause for their arrest, nor for the search of the farmhouse and barn where they were arrested and where the marijuana was found. The arrests and the initial search were made by DEA agents without warrants.

The appellants also argue that their motions raising the issue of double jeopardy, following the trial court’s declaration of a mistrial, were erroneously denied, and further that defendants asked the trial court for an appeal from this denial, which request served to divest the trial court of jurisdiction to proceed with the second trial. In so urging, the appellants rely on Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, which was decided during the course of this appeal. This Circuit had not passed on the issue of appealability of a denial of a motion based on double jeopardy.

A mistrial was declared at the conclusion of the opening statement for the prosecution at the first trial. The Assistant United States Attorney mentioned in this statement that there would be evidence as to the search of a farmhouse where papers of the defendant Hanson would be found. He also said, “They will also find three bags of marijuana and two syringes.” The record shows that the attorneys for the defendants and the Assistant United States Attorney who made the opening statement had discussed just before trial the matter of the syringes. The attorney, Mr. Jerry Patchen, who with others had entered an appearance for defendant Hanson, advised the court when the Government’s opening statement was concluded that he wished to make a motion. He asked to approach the bench and did so, as did the other attorneys representing the defendants. Mr. Patchen immediately said: “I would like to move for a mistrial because of the prosecutor’s reference to the two syringes that were found in Joanne Hanson’s apartment.” He then told the court in effect that in the conversations that morning between the Assistant United States Attorney and the attorneys for the defendants (or some of them), it had been agreed that the syringes would not be introduced, and also would not be referred to at trial. The prosecution advised the court at this bench conference that it had been agreed that the syringes would not be introduced, but it had not been agreed that they would not be commented on. The court without more declared a mistrial. The defense attorneys at the bench conference other than Mr. Patchen said nothing whatever. The court then excused the jury. This was about 11:00 a. m. It appears that the second trial was then set to start, and did start, at 1:45 p. m. that afternoon or about two and one-half hours later.

Before the second trial began, all the defendants moved for dismissal on the ground of double jeopardy. The motions were denied. The following colloquy then took place: As to attorney Patchen, he said in part: “. . . I would like to give notice of appeal of the denial.” The court said: “. . . You have ten days for that anyway.” Mr. Patchen said there are five Circuits “. . . that indicate that we are entitled to an interlocutory appeal . May I give oral notice of appeal.” The court, “. . . You certainly may.” The attorney for the other defendants made a motion to dismiss because of “prior jeopardy.” The motion was denied, and the attorney said: “. . . May we also request an interlocutory appeal at this time?” The court said: “Yes. Sure may, but it will be denied.”

The court then asked the parties if they were ready for trial, and they announced they were. The second trial began, and no further action or procedure as to the “appeals” took place.

The defendants do not urge here that they asked for nor were denied any continuance or delay in the second trial to permit an appeal to be perfected or for any other purpose, and the record shows none. The second trial thus proceeded, and it appears that the matter rested there until this appeal was perfected. The appellants urged the appealability of the denial of the motion based on double jeopardy before the decision in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, as the issue had not been decided in this Circuit. Abney was decided during the pendency of this appeal, as mentioned above.

The Supreme Court in Abney points out that the need for considering a denial of a double jeopardy motion to be final for the purposes of appeal is to allow the assertion of the constitutional right before the defendant is confronted with a second trial. The Court refers to pretrial proceedings to consider the motion and to appeal the double jeopardy motion if denied by the trial court. Thus the protection is against being subjected to or threatened with a second trial, and the attendant delay. The protection is, of course, broader than against double punishment.

In Abney v. United States, 431 U.S. at page 661, 97 S.Ct. at page 2041, the Court said:

“. . . Because of this focus on the ‘risk’ of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction . . . ”

The Court there also quoted from Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 where reference is made to subjecting the defendant to the embarrassment, expense, and ordeal, and compelling him to live in a continuing state of anxiety and insecurity. The Court in Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 described the protection by saying:

“. . . Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing . . . .”

The courts of appeal which reached the same conclusion before Abney followed the same reasoning, and made the same explanation for the need for a pretrial review. See United States v. Barket, 530 F.2d 181 (8th Cir.); United States v. DiSilvio, 520 F.2d 247 (3d Cir.); United States v. Beckerman, 516 F.2d 905 (2d Cir.); Thomas v. Beasley, 491 F.2d 507 (6th Cir.); United States v. Lansdown, 460 F.2d 164 (4th Cir.).

This is indeed the basic reason for the appealability conclusion, but here the defendants have already had a second trial. The “pretrial protection” from a second trial, until the double jeopardy issue is decided, cannot here be accomplished.

The reasons in Abney, the emphasis by the Court on pretrial protection, cannot be achieved. The second trial had already taken place before Abney was decided. We must hold in these circumstances that Abney is not applicable. A pretrial procedure to protect against a second trial cannot be utilized. If Abney were literally applied it could lead to a third trial under defendants’ theory, and the problem would be compounded. Thus we cannot apply the Abney’s construction of 28 U.S.C. § 1291 to these circumstances. Abney is a decision on 28 U.S.C. § 1291, and is as well a decision on the time for a challenge. It thus decides how and when a constitutional right may be asserted. Any application of Abney would lead to an incongruous result in the circumstances before us. Consideration has been given to the application of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, and Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554.

It is also apparent that defendants made no effort, other than the oral notice of appeal, to have the matter determined before the second trial, and made no effort to perfect an appeal, if indeed one had been taken. The shortness of time and the related factors are apparent, but the appeal could well have been perfected as the second trial progressed or separately thereafter. This appeal must proceed on the basis that the double jeopardy issue is part of this appeal, and that the trial court was never divested of jurisdiction. We can only consider the double jeopardy claim of the defendants now since a pre-second trial consideration is not possible. The defendants thus present this constitutional issue as part of this appeal and first consideration should be given to the consequence of the motion for a mistrial voiced by Mr. Patchen, one of the attorneys for defendant Hanson. As described above, this motion was made at the end of the opening statement of the prosecution.

Mr. Patchen was the attorney who voiced the motion for a mistrial. The record does not show whether he moved only on behalf of defendant Hanson or for the others as well. He just said: “I move . ” etc. The other defense attorneys were at the bench, and made no statements whatever. They remained silent and the court proceeded. Under these circumstances, it is reasonable to construe their silence to be acquiescence in the statements of Mr. Patchen and in the motion for mistrial. They made no objection to the mistrial as they had adequate opportunity to do, and did not disaffirm the statement of Mr. Patchen. Under the circumstances, they were obligated to speak to express their position if they did not agree with the motion.

The docket as to the entry of appearances shows that Mr. Francis entered his appearance as attorney for each of the defendants. Mr. Moyers represented defendant Hanson and defendant Masters at trial and defendant Rumpf at sentencing. In view of the cross-representation of the several defendants, and their silence at the bench conference, we must hold, as above indicated, that all defendants acquiesced and thereby participated in the motion for mistrial. They had an obligation to speak, and their silence was an agreement in the course and position of the one who did speak.

The consequence of the motion for mistrial under these circumstances is clear. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717, or Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, is a starting point, as could be United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, or United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, and United States v. Buzzard, 540 F.2d 1383 (10th Cir.), establish that by moving for a mistrial, a defendant waives objection thereto if one is declared. This follows in the absence of bad faith conduct by the prosecution or the judge, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267, or in the absence of governmental action intended to provoke a motion for mistrial or to secure a more favorable tribunal. If such bad faith is shown, there is no waiver of double jeopardy objection to a mistrial.

The defendants assert that the prosecution deliberately sought to get the two syringes into evidence, but the record does not support this argument in any way. The record shows only a misunderstanding between defense counsel and the prosecution as to a conversation before trial as to whether the syringes would be commented on or testified to. The reference to the syringes in the opening statement cannot be held to be “bad faith” conduct under Dinitz. Bad faith does not include mistakes or errors. United States v. Jorn, 400 U.S. 470. There was no conduct to provoke the motion for mistrial so as to relieve defendants from the consequences of a waiver of objections thereto.

The action of the trial judge in granting the motion for mistrial was done quickly, but the issue was narrow and uncomplicated. The defendants assert that the action was hasty, but again the matter was clear-cut, and in any event, it was taken on the request of the defendants.

We have held that the burden is on the defendant to establish the facts supporting his motion for dismissal on the ground of double jeopardy. United States v. Wilshire Oil Co. of Texas, 427 F.2d 969 (10th Cir.). This holding must still prevail under United States v. Abney, where the matter is to be disposed of in pretrial proceedings to include evidentiary hearings. This doctrine may have to give way to unusual circumstances where the proof may be in the control of the prosecution, or where it can only be established by the use of Government witnesses. In the situation before us, however, there are no factors precluding the application of the doctrine.

We thus hold that the second trial here appealed from was not shown to be barred by the prohibition against double jeopardy.

As to the arrests and the search, the defendant Griffin was charged only with conspiracy to possess with an intent to distribute marijuana. He claimed no interest in the premises searched nor in the items seized. Possession by Griffin was not an element of the charge against him. He had no standing to challenge the search and seizure under Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.

As to the other defendants, the record shows that the DEA agents learned that a load of marijuana being flown from Mexico was going to land on State Road 117 south of Grants, New Mexico. The defendants were observed driving a Chevrolet Suburban and a pickup with a camper trailer into the area. The agents testified that these vehicles had been observed in connection with incidents involving marijuana. The vehicles went down State Road 117 and spent the night. The next morning the agents saw them emerging from the road on to the interstate highway. They followed the vehicles about eighty to ninety miles to a farm near Moriarty, New Mexico. The agents testified that the trailer was heavily loaded and swayed. When the agents arrived at the farm they entered it and found marijuana in plain sight in the barn and smelled it in the camping trailer which was parked in the barn. The defendants were arrested. The agents had no warrant for search or arrest at the time. Later a search warrant was obtained, and the house was searched.

The Government urges that it was not possible during the time the agents were-following the vehicles for them to secure warrants. The defendants argue there was not probable cause for the arrests and the search of the barn which revealed a large quantity of marijuana.

The record demonstrates that there was probable cause for the arrests and the search. The whole train of events, the pri- or connection of the vehicles with marijuana transactions, and the information that a plane would arrive were sufficient. The need to follow the defendants, and to take action immediately revealed exigent circumstances. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; United States v. Sigal, 500 F.2d 1118 (10th Cir.); United States v. Miller, 460 F.2d 582 (10th Cir.). We have held that smell alone is sufficient probable cause for a search. United States v. Bowman, 487 F.2d 1229 (10th Cir.); United States v. Anderson, 468 F.2d 1280 (10th Cir.).

We must hold that there was probable cause for the arrests and search. There was clearly sufficient evidence to support the convictions.

AFFIRMED.