United States v. Dinzey

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-20-2007
USA v. Dinzey
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2251
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"USA v. Dinzey" (2007). 2007 Decisions. Paper 21.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/21
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2251
___________
UNITED STATES OF AMERICA
vs.
ALLEN DINZEY
a/k/a MOW
Allen Dinzey,
Appellant
___________
On Appeal from the District Court of the Virgin Islands
(Division of St. Thomas and St. John)
(D.C. Criminal No. 05-cr-00076-3)
District Judge: The Honorable Curtis V. Gomez
___________
Argued: December 10, 2007
BEFORE: SMITH, NYGAARD, and ROTH, Circuit Judges.
(Filed: December 20, 2007)
Bernard M. VanSluytman, Esq. (Argued)
P. O. Box 6878
Charlotte Amalie, St. Thomas
USVI 00804
Counsel for Appellant
Delia Smith, Esq. (Argued)
Office of the United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Allen Dinzey, along with twelve co-defendants, was indicted in a multi-count
indictment alleging drug conspiracy offenses. Dinzey was also charged with distribution
of crack cocaine. During his trial, DEA Agent Mark Josephs’ testimony raised a Bruton
error.1 The District Court declared a mistrial as to Dinzey. Dinzey then moved to dismiss
the indictment, arguing that the prosecutor deliberately provoked a mistrial to preserve the
opportunity for a second trial. The District Court denied Dinzey's motion and Dinzey has
1
In Bruton v. United States, 391 U.S. 123 (1968), Bruton and his co-defendant,
Evans, were tried jointly before a jury. At trial, a federal officer testified that Evans had
confessed to the robbery and had implicated Bruton in his confession. The judge
instructed the jury that it should consider Evans' confession solely in determining Evans'
guilt and that it should disregard the confession with regard to Bruton's involvement. The
Supreme Court reversed Bruton's conviction, holding that the introduction of a
non-testifying co-defendant's confession implicating Bruton violated the accused's right to
confront witnesses secured by the Confrontation Clause of the Sixth Amendment. Id. at
126. Id. at 128; see also United States v. Richards, 241 F.3d 335, 340 (3d Cir. 2001).
2
now appealed. On appeal Dinzey raises one issue: whether the District Court's denial of
his motion to dismiss the indictment violated his double jeopardy rights. We will affirm.
We have specifically held that when a defendant requests a mistrial, even in
response to prosecutorial or judicial error, double jeopardy does not bar retrial, unless the
error that prompted it was the result of bad-faith conduct by a judge or prosecutorial
misconduct. See United States v. Pharis, 298 F.3d 228, 243 (3d Cir. 2002). It is not
disputed that Dinzey moved for the mistrial. In his brief, Dinzey admits that "In written
arguments, defendant sought a dismissal of the case. The [District Court] then granted
defendant Dinzey a mistrial and severed him from the case." Appellant's brief at 6.
Therefore, the only question before us is whether the underlying error that caused the
mistrial was prompted by prosecutorial misconduct or bad faith.
There is none. Dinzey argues that the prosecutor intentionally acted to provoke a
mistrial by eliciting testimony of a post-arrest statement defendant Francois made, thereby
causing a Bruton error. However, there is no evidence on this record to indicate that the
prosecutor did anything to provoke a mistrial - indeed the prosecutor opposed Dinzey’s
motion. The District Court also found that “Dinzey has not presented, nor is the Court
aware of, any evidence in the record to suggest that the prosecutor intentionally caused
the mistrial.” Appendix at 11. Finally, the prosecutor argued against granting a mistrial
and asked the District Court to give a curative instruction instead. Supplemental
Appendix at 68. Because Dinzey moved for the mistrial and there is no evidence of bad
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faith, his re-prosecution does not violate any Constitutional proscription. We will affirm.
4