United States v. Willie E. Sloan ( 1994 )

NIEMEYER, Circuit Judge,

dissenting.

When the defendant, Willie Sloan, elected not to testify at trial, having earlier and repeatedly during the course of trial advised the district court that he would testify, the district court on its own motion declared a mistrial. As grounds for its motion, the district court stated in its order of December 28, 1993:

[F]rom the trial’s inception, defense counsel on several occasions unequivocally asserted to both the court and to the United States Attorney that the defendant would testify on his own behalf. The court relied upon such representations in its rulings upon evidentiary issues in both the Government’s and the defendant’s cases-in-chief, admitting evidence presumed to be corroborative of defendant’s anticipated testimony.

* * * * * *

In the court’s view, reliance upon defense counsel’s unequivocal assertion that defendant would testify rendered the trial fundamentally unfair to the United States. * * * * * *

The court having found the quest for truth to have been fundamentally flawed, a mistrial was declared, and it is so ordered.

After the mistrial was declared, the defendant filed a motion to dismiss the indictment on grounds that a retrial would violate the Double Jeopardy Clause of the Fifth Amendment. In denying the motion, the district court stated:

The court deems it unnecessary again to address the bases of the defendant’s Memorandum, but observes that a trial transcript will not reflect comments made in chambers or off the record, or the silence of the court or counsel in reliance thereon. Nor will a transcript reflect the court’s unspoken thought processes in presiding over a trial and in ruling on matters arising therein. The cold record cannot com vey many nuances of a criminal trial or the dynamics of human interaction throughout the various proceedings.^*

From the district court’s order denying the motion to dismiss the indictment, this appeal followed, and for the reasons stated below, I would affirm.

The double jeopardy protection granted by the Fifth Amendment prohibits a second trial “for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). The Court explained, however, that a retrial because of trial error does not violate the Double Jeopardy Clause:

In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its ease. As such, it implies nothing with respect to the guilt or innocence of the defendant.

Id. at 15, 98 S.Ct. at 2149. See also Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 290-91, 102 L.Ed.2d 265 (1988). The Court has stated that the protection against affording the prosecution a second opportunity to supply evidence which it failed to present initially lies “at the core of the [Double Jeopardy] Clause’s protections.” Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982).

Beyond circumstances where the defendant has been acquitted or might have been acquitted because of an inadequacy of the government’s evidence, the Supreme Court has been reluctant to deny the opportunity for a second trial and has generally left the decision in such circumstances to the “broad discretion” of the trial judge. See Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973); see also Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 835 (requiring trial judges to exercise “sound discretion”). This is so even if the trial judge has granted a new trial too hastily or for reasons that were not entirely clear. See Gori v. United States, 367 U.S. 364, 366, 81 S.Ct. 1523, 1525, 6 L.Ed.2d 901 (1961). In Gori, in commenting about the trial judge’s declaration of a mistrial sua sponte during the direct examination of the government’s fourth witness, the Supreme Court observed, “It is unclear what reasons caused the court to take this action, which the Court of Appeals characterized as ‘overassiduous’ and criticized as premature.” Id. at 365-66, 81 S.Ct. at 1524-25. Nevertheless, in affirming the retrial of the defendant, the Court stated:

Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.... [W]e have consistently declined to scrutinize with sharp surveillance the exercise of that discretion.

Id. at 368, 81 S.Ct. at 1526. The Court did note that the trial court’s discretion may be abused if the court declares a mistrial to help the prosecution at a trial in which “its case is going badly, by affording it another, more favorable opportunity to convict the accused.” Id. at 369, 81 S.Ct. at 1526-27. But this observation merely amounts to a variation on the critical theme that double jeopardy prohibits a retrial to cure an inadequacy of the government’s evidence in the first trial. As the Court in Arizona v. Washington summarized:

“[The Double Jeopardy Clause] bars retrials where ‘bad-faith conduct by judge or prosecutor’ ... threatens the ‘[h]arrassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.”

434 U.S. 497, 508, 98 S.Ct. 824, 831-32, 54 L.Ed.2d 717 (1978) (quoting United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267). Otherwise, the district court’s judgment is entitled to “great deference,” id. 434 U.S. at 514, 98 S.Ct. at 835, and must be accorded “the highest degree of respect,” id. at 511, 98 S.Ct. at 833.

Thus the double jeopardy prohibitions against retrial fall into two categories: (1) an absolute protection, where the defendant has been acquitted (or convicted) or would have been acquitted had the case gone to judgment, and (2) a discretionary grant of protection, at issue here, where the trial is aborted because of trial error or some other event tending to defeat the ends of public justice. In reviewing cases in the second category, the Supreme Court continues to return to the fountainhead statement of Justice Story in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824):

[I]n all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.

The Perez formulation, however, does not set forth a test to be rigidly or mechanically applied. See Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. at 830-31. And the public interest in “fair trials designed to end in just judgments” is not to be undermined casually. See id. at 516, 98 S.Ct. at 836. The discretion given to trial judges, accordingly, is necessarily broad in light of the “compelling institutional considerations militating in favor of appellate deference to the trial judge’s evaluation,” id. at 513, 98 S.Ct. at 834, and therefore our review can only be for its abuse. As the Court in Arizona v. Washington noted, the Double Jeopardy Clause recognizes society’s interest in “giving the prosecution one complete opportunity to convict those who have violated its laws.” . Id. at 509, 98 S.Ct. at 832. This is the end of public justice which must not be forsaken readily.

The interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest.

Illinois v. Somerville, 410 U.S. at 463, 93 S.Ct. at 1070.

In this ease, the district court declared a mistrial on its own motion because of a perceived injustice in the proceedings. Even though the government was denied a complete opportunity to convict, and the defendant was denied the opportunity for obtaining an acquittal, no evidence appears that the district court abused its discretion. The court believed, and so expressed the belief which we have no reason to doubt, that because of matters that appear both on and off the record, the “quest for truth [became] fundamentally flawed.” The court did not attribute fault to the defendant’s abrupt decision not to testify, but did recognize that the change of stance undermined the trial’s structural assumption that the defendant would testify. This structure took shape right from the beginning in the defendant’s opening statement. Because we can now evaluate specific rulings and exchanges from a written record which was unavailable to the district court, we might be inclined to question the wisdom of the district court’s order based on the bare record, particularly when the judge failed to explore other possibilities for saving the trial. But such speculation does not require us to find that the district court abused its broad discretion. Indeed, nothing in the record points to the conclusion that the district judge acted “irrationally or irresponsibly,” Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 835, or in such a manner as to cast doubt upon the exercise of his broad discretion.

In furtherance of the Perez formulation, public justice demands that the government be given the opportunity to complete a prosecution, unless its own actions preclude such an opportunity and as long as a district court did not act in bad faith or otherwise abuse its discretion. We should not act to deny the public its right to prosecute fully and fairly those persons accused of felonies.

The majority opinion reveals an admirably thorough effort in having combed the record for actual reliance and prejudice, finding little that could not have been corrected by an instruction to the jury or a renewed opportunity to one side or the other to present witnesses. While those alternatives may become apparent under the closer scrutiny of the record made possible at the appellate level, the record is not without support for the district court’s concerns. The conduct of the trial placed the credibility of Sloan squarely before the jury, and various exchanges during trial, outlined by the majority opinion, continued to rely on Sloan taking the stand. In addition to explicit statements of reliance on Sloan’s expressed intention to testify and to the direction the trial took based on that assumption, we note that the district court also observed that it often remained silent in reliance on these statements, something that the trial transcript cannot reveal. All of these matters, express and implied, point to an effort by the district court to obtain a just trial and not to favor one side or the other. Cf. United States v. Jorn, 400 U.S. 470, 483, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971). I do not believe that the task undertaken by the majority to find irremediable prejudice is the appropriate standard of review.

In short, while I am prepared to acknowledge that from the bare record, it would appear that a greater exploration of ways to save the trial could have been undertaken, I cannot conclude that the mistrial declared by the district court was irrational or an abuse of discretion, which is the applicable standard of review. In the absence of clear evidence of abuse, I would find that “the public’s interest in fair trials designed to end in just judgments” outweighs, in this case, the defendant’s right to have his trial concluded before the first jury impaneled or to be free from the harassment of a second trial, see Arizona v. Washington, 434 U.S. at 516, 98 S.Ct. at 836, especially where, as here, the declaration of mistrial has not been shown to have prejudiced the defendant or benefited the prosecution.

Accordingly, I respectfully dissent.

* The majority opinion reveals a thorough review of the trial record and reports the representations made by defense counsel about Sloan’s testifying as well as responses by the court and the government. While the majority opinion presumes that the "trial judge acted in 'subjective good faith,’ ” it concludes that the record belies the court’s concerns leading to the declaration of a mistrial. While I cannot take issue with the matters quoted from the record, I would disagree with the characterization. I only note that in addition to the passages discussed in the majority opinion, the opening statement focused the trial from the outset on Sloan’s credibility and intent to testify:

The evidence will show you, ladies and gentlemen, that Willie Sloan, and this is important, because again you are to judge the credibility of this evidence and the credibility of this man and his history with the union.

******

[The local union] didn’t want to share the work.... [Tjhe international union had to send three international vice presidents down here to swear the new members in because the membership down here didn't want to share the wealth.

And the evidence will show you that Willie Sloan never forgot that ....

(Emphasis added). These statements are part of a longer story outlined by defense counsel about how Sloan came from most modest beginnings to his success as union president, relying on his thoughts and personal credibility to support the many statements about his success story. While some of the matters could have been testified to by third persons, it was apparent that the promise to the court and jury was that Sloan would take the stand. Although Sloan was free to change his mind, the district court rightly could have concluded that because of his change in position, the structure of the trial had become such that the case could not thereafter be presented fairly to the jury, even in the absence of bad faith on the part of the litigants.