NOLAN REDDEN EGGER, PETITIONER V. UNITED STATES OF AMERICA No. 89-7550 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A) is unpublished, but the decision is noted at 898 F.2d 159 (Table). JURISDICTION The judgment of the court of appeals was entered on February 16, 1990. Pet. App. 1A. A petition for rehearing was denied on March 22, 1990. Pet. App. 1B. The petition for a writ of certiorari was filed on May 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether retrial following a mistrial is barred by the Double Jeopardy Clause unless defense counsel's motion for a mistrial was made with the defendant's fully informed and publicly acknowledged consent. STATEMENT A grand jury in the Northern District of Alabama indicted petitioner on charges of conspiring to sell counterfeit currency, in violation of 18 U.S.C. 371 (Count 1); possession of counterfeit currency, in violation of 18 U.S.C. 472 (Count 2); and passing counterfeit currency, in violation of 18 U.S.C. 472 (Counts 3 and 4). Petitioner's first jury trial resulted in a mistrial. His second jury trial ended in convictions on two counts (Counts 1 and 2), and acquittal on a third count (Count 3). /1/ The district court subsequently granted petitioner a new trial based upon the government's inadvertent violation of the Jencks Act, 18 U.S.C. 3500, and Brady v. Maryland, 373 U.S. 83 (1963). Prior to the commencement of the third trial, petitioner moved to dismiss the indictment on double jeopardy grounds. The district court denied his motion, and the court of appeals affirmed. Pet. App. A. 1. At petitioner's first trial, the government called Leonard Palumbo as a witness. At the conclusion of Palumbo's examination, the following exchange occurred: THE COURT: Thank you. You may be excused. THE WITNESS: Your Honor, I've got a little comment because -- THE COURT: I don't want to hear from you. Go on. You're excused. Go on. THE WITNESS: Well -- THE COURT: Go on. THE WITNESS: Okay, Your Honor. But I wrote this up last night. I've got a legal obligation to say this. THE COURT: I don't want to hear you. THE WITNESS: As a real estate broker -- THE COURT: I don't want to hear it. THE WITNESS: state license, under the State of Alabama. THE COURT: Take this man out. THE WITNESS: I would be glad to go. THE COURT: I'll put you in jail if you fool with me. Now get him out of here. THE MARSHAL: Are these your books, here? THE WITNESS: Yes, sir. (Witness escorted from the courtroom by Marshals.) Pet. App. D3. The district court then instructed the prosecutor to call the next government witness. Before the witness was called, however, the prosecution requested a side bar conference. The court adjourned to chambers, where the following discussion took place: THE COURT: Do you want a mistrial? MR. LOCKE (Defense Counsel): Yes, Sir. THE COURT: I'm certainly inclined to declare it. MR. LOCKE: All right. I would so move. THE COURT: You're going to have to get this thing in different order. I don't think there's any way at all that we can fairly try this case for the Government or for the Defendant, under the circumstances, towards this jury. I knew this man was going to give you trouble. Like I say, I never saw a Palumbo that didn't. MR. SINCLAIR (Prosecutor): Well, Your Honor, asking him for his name and address, we didn't anticipate that we would have this problem. We would argue that the defense invited the problem. THE COURT: Did you sit down and talk with him before you put him on the stand? MR. SINCLAIR: No, sir. THE COURT: You did not. The best trial lawyers in the criminal world tried a case before me one time. He told me he never put a witness on the stand that he hadn't talked to them at least twice. I'm going to declare a mistrial in this case. It will be set for retrial and somebody else will try it; not me. (Open Court) THE COURT: Ladies and gentlemen of the jury, in my judgment, there's no way that we can continue the trial of this case and see that both the Government and the Defendant get a fair trial. There's no way I can erase from my mind, and your mind, some things that have happened in this case. I'm going to declare a mistrial. The case will be tried over again by a different judge and different jury. Pet. App. 3A-4A. Petitioner's second trial began on June 5, 1989. Prior to this trial, petitioner filed a motion to dismiss the indictment on double jeopardy grounds. The district court denied the motion, and the trial proceeded. /2/ The jury convicted petitioner on two of the three remaining counts in the indictment, and acquitted him on the third count. Petitioner moved for a new trial, alleging that the government had failed to disclose an exculpatory statement made to government agents by a prosecution witness. The district court granted petitioner's motion, concluding that the government's omission, although an oversight, was significant enough to warrant a new trial. The government did not appeal this ruling. Pet. App. 4A. In September 1989, before the start of the third trial, petitioner again moved to dismiss the indictment on double jeopardy grounds. See C.A. App. 11-12. He alleged that the prosecution's lack of preparedness necessitated the first mistrial and that the trial court provoked the defendant's mistrial motion. Pet. App. 5A. A magistrate recommended that the motion be denied, Pet. App. D, and the district court adopted the magistrate's recommendation. Pet. App. C. 2. The court of appeals affirmed. Pet. App. A. The court held that the district court did not commit clear error in determining that petitioner had consented to the mistrial. Because petitioner consented, the court stated, he waived any double jeopardy claim that he otherwise might have had. Pet. App. 5A-6A. The court of appeals also agreed with the district court's determination that the court did not pressure defense counsel into seeking the mistrial. Pet. App. 6A-7A. Finally, the court of appeals rejected petitioner's contention that the Double Jeopardy Clause barred retrial following the government's unintentional Brady violation. The court found that, absent a showing that the government intended to prod the defendant into seeking another mistrial, the proper remedy for the Brady violation was a new trial. Pet. App. 7A-8A. ARGUMENT Petitioner contends (Pet. 9-17) that the Double Jeopardy Clause bars any further prosecution for the counterfeiting offenses because the record does not show that petitioner's counsel moved for a mistrial with petitioner's "fully informed and publicly acknowledged consent." Pet. 11. This contention, which petitioner raised for the first time in his petition for rehearing to the court of appeals, is without merit. Accordingly, review by this Court is not warranted. 1. Petitioner failed to raise his present argument before the district court, see C.A. App. 11-12, or in his initial briefing and argument in the court of appeals. Petitioner instead contended that the district court goaded his lawyer into requesting a mistrial, and that the court's conduct barred retrial. See Pet. C.A. Br. 8-14. Indeed, petitioner's initial brief submitted to the court of appeals conceded that "(i)n this case (petitioner) moved for a mistrial(,) thus consenting to the mistrial and waiving any double jeopardy protection unless the prosecutor or judge intentionally provoked the request for a mistrial." Id. at 10. Petitioner raised the waiver issue for the first time in his petition for rehearing to the court of appeals, which was denied without opinion. Pet. App. B. See note 4, infra. If petitioner had raised his contention in the district court, that court could have entered findings as to whether petitioner and his counsel discussed the possibility of moving for a mistrial, and whether petitioner voiced any objection to his lawyer's course of action. The district court also could have determined whether there was a manifest necessity to grant a mistrial even over the defendant's objection, a determination that would be entitled to deference on appeal. Cf. Arizona v. Washington, 434 U.S. 497, 510 (1978) (trial court's determination that improper and prejudicial remarks of prosecutor required a mistrial is entitled to special respect). 2. In any event, petitioner's claim is without merit. In United States v. Dinitz, 424 U.S. 600 (1976), the Court stated that it had "implicitly rejected the contention that the permissibility of a retrial following a mistrial * * * depends on a knowing, voluntary, and intelligent waiver of a constitutional right." Id. at 609-610 n.11 (citing cases). The Court said that it was error to "treat() the defendant's interest in going forward before the first jury as a constitutional right comparable to the right to counsel," and thus reliance on Johnson v. Zerbst, 304 U.S. 458 (1938), is misplaced in this context. 424 U.S. at 610 n.11. The Court's statements in Dinitz are consistent with the general rule that a defendant's personal consent is needed only for a few "fundamental decisions regarding the case, such as to whether to plead guilty, waive a jury trial, testify in his or her own behalf, or take an appeal." Jones v. Barnes, 463 U.S. 745, 751 (1983); see also Wainwright v. Sykes, 433 U.S. 72, 93 n.1(1977) (Burger, C.J., concurring). Thus, in Lee v. United States, 432 U.S. 23 (1977), the Court held that there was no violation of double jeopardy principles where "the District Court * * * did not act sua sponte but in response to a motion by defense counsel." Id. at 31 (emphasis added). Petitioner cites Taylor v. Illinois, 484 U.S. 400 (1988), for the proposition that a motion for mistrial requires the informed and public consent of the defendant (Pet. 11), but Taylor does not include double jeopardy rights among the few "basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client," and states that "the lawyer has -- and must have -- full authority to manage the conduct of the trial." /3/ Id. at 417-418 & n.24. None of the decisions of the courts of appeals cited by petitioner conflicts with the decision of the Eleventh Circuit in this case. Adamson v. Ricketts, 789 F.2d 722 (9th Cir. 1986), rev'd, 483 U.S. 1 (1987), presented the question whether the Double Jeopardy Clause barred a prosecution following the defendant's breach of a plea agreement. Not only did the question in Adamson differ from the question in this case, but this Court subsequently reversed the decision of the Ninth Circuit, holding that prosecution of the defendant did not violate double jeopardy principles. 483 U.S. at 8. In Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980), cert. denied, 449 U.S. 1085 (1981), the defendant objected to a mistrial. Petitioner, unlike the defendant in Walker, does not contend that he objected to the mistrial, or even that he would have objected had he been present at the conference in chambers. Finally, in United States v. Rich, 589 F.2d 1025, 1027-1032 (10th Cir. 1978), the district court discharged the jury over the objections of defense counsel, while the defendant was absent from the courtroom. Here, petitioner's counsel unambiguously consented to a mistrial, and petitioner was present in the courtroom when the jury was dismissed. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ANDREW LEVCHUK Attorney JULY 1990 /1/ Prior to the second trial, the district court granted the government's motion to dismiss Count 4. Pet. App. 2A n.1. /2/ Petitioner elected not to pursue an interlocutory appeal. Pet. App. 4A n.2. /3/ The other decisions of this Court cited by petitioner are inapposite. Brookhart v. Janis, 384 U.S. 1 (1966), held that a defendant's lawyer may not waive the defendant's right to plead not guilty and have a jury trial by consenting to a trial procedure that is the practical equivalent of a guilty plea. Green v. United States, 355 U.S. 184 (1957), held that a defendant convicted of a lesser included offense does not waive the right not to be retried for the greater offense by successfully appealing the conviction. Schneckloth v. Bustamonte, 412 U.S. 218, 237-238 (1973), noted in passing that Green applied the knowing and intelligent waiver standard in a double jeopardy setting. But the Court has expressly stated that the permissibility of retrial following mistrial does not depend on a knowing, voluntary, and intelligent waiver by the defendant. United States v. Dinitz, 424 U.S. at 609-610 n.11. /4/ Petitioner also contends, in passing, that his absence from the conference in the trial judge's chambers violated his right to be present at all critical stages of his trial. Pet. 11-12 (citing Faretta v. California, 422 U.S. 806 (1975)). But Faretta concerned the right to self-representation. Here, petitioner was represented in the conference by his attorney, and Fed. R. Crim. P. 43(c)(3) provides that a defendant's presence is not required at a conference upon a question of law. In any event, this issue was not raised in the courts below, and thus need not be addressed here. See United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977).