United States District Court, D. Arizona
ORDER
HONORABLE DAVID C. BURY, UNITED STATES DISTRICT JUDGE
This
matter was referred to Magistrate Judge Lynnette C. Kimmins,
pursuant to Rules of Practice for the United States District
Court, District of Arizona (Local Rules), Rule (Civil)
72.1(a). On February 27, 2019, Magistrate Judge Kimmins
issued a Report and Recommendation (R&R). She recommends
that the Court grant the Petition for Writ of Habeas Corpus
(the Petition) based on a double jeopardy violation (Claim
2). She recommends the Court dismiss Claims 1, 3, and 4 as
premature. The Court accepts and adopts the Magistrate
Judge's R&R as the findings of fact and conclusions
of law of this Court as to the dismissal of Claims 1, 3, and
4, but rejects the recommendation as to Claim
2.[1]
The Court finds that the Double Jeopardy Clause in the Fifth
Amendment of the United States Constitution was not violated
because the Defendant's attorney requested the mistrial.
STANDARD
OF REVIEW
The
duties of the district court in connection with a R&R by
a Magistrate Judge are set forth in Rule 72 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The
district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. §
636(b)(1). Where the parties object to a Report and
Recommendation, “‘[a] judge of the [district]
court shall make a de novo determination of those
portions of the [R&R] to which objection is
made.'” Thomas v. Arn, 474 U.S. 140,
149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).
This
Court's ruling is a de novo determination as to
those portions of the R&R to which there are objections.
28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416
F.3d 992, 1000 n. 13 (9th Cir.2005); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003)
(en banc). To the extent that no objection has been
made, arguments to the contrary have been waived.
Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections
are waived if they are not filed within fourteen days of
service of the R&R), see also McCall v. Andrus,
628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to
Magistrate's report waives right to do so on appeal);
Advisory Committee Notes to Fed.R.Civ.P. 72 (citing
Campbell v. United States Dist. Court, 501 F.2d 196,
206 (9th Cir. 1974) (when no timely objection is filed, the
court need only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation)).
The
parties were sent copies of the R&R and instructed that,
pursuant to 28 U.S.C. § 636(b)(1), they had 14 days to
file written objections. See also, Fed.R.Civ.P. 72
(party objecting to the recommended disposition has fourteen
(14) days to file specific, written objections). The Court
has considered the objections filed by the Respondent, the
Petitioner's Reply, and the parties' briefs
considered by the Magistrate Judge in deciding the Petition.
OBJECTIONS
The
objection filed by the Defendant was not argued to the
Magistrate Judge, but the Court considers it here, and the
Petitioner has been afforded an opportunity to Reply.
As
explained in the R&R, the Petitioner, defendant High,
objected in open court when his attorney asked for a mistrial
on the second day of his trial. The jury had been empaneled
on day one, a Wednesday. The second day of trial, when
counsel arrived to commence presentation of the evidence,
Defendant's attorney informed the trial judge that he was
too sick to proceed to represent the defendant at trial and
expressly asked for a mistrial. When the court declared in
open court it was going to declare a mistrial at the request
of defense counsel, Defendant High objected on speedy trial
grounds. He noted that there were two attorneys appointed to
represent him and asked that the other attorney proceed. The
second attorney explained that he was only present for
training purposes, and he was not prepared to conduct the
trial. The court cited extraordinary circumstances, found
delay was indispensable to the interests of justice, and
declared the mistrial on a Thursday. (R&R (Doc. 40) at
1-2.)
A
status conference was set for the following Monday, whereat
Defendant High argued that a new trial would violate his
double jeopardy rights, that lead-counsel or the second
attorney should have proceeded with the trial. “High
further argued that he did not consent to the mistrial and he
was not given sufficient time to dispute the request.”
(R&R (Doc. 40) (citing TR (Doc. 29) at 22). Counsel
explained he understood why his client had objected to the
request for a mistrial but unfortunately counsel's
illness was very unforeseen, and it was more than a common
cold. Counsel did not believe he could ethically file a
motion based on double jeopardy because defense counsel
requested the mistrial, and it would essentially be tricking
the court to say, “Judge, a-ha, we got you, now it has
to be double jeopardy, that jeopardy attaches, since it was
at our request.” (TR (Doc. 29) at 21.)
The
trial court summed up the situation as being where the main
trial attorney had said on the record that he was ill,
nauseous, had a headache, and could not go forward
effectively to represent defendant High at trial. The second
attorney had said he was not prepared to take up the trial on
the fly and effectively represent the defendant. In such
circumstances, the court had to act to protect High's
right to a fair trial or the defendant could say: my main
attorney said he was too sick to represent me effectively and
the other attorney said he was unprepared. The Court noted
that his attorneys had not waived his speedy trial rights,
but the Court had found extraordinary
circumstances[2] to exempt the delay for speedy trial
purposes. The Court found it had had no choice but to grant
defense counsel's request for the mistrial. (TR (Doc. 29)
at 22-23.)
The
court reasoned that it would not entertain High's pro se
double jeopardy motion to dismiss because he was represented
by counsel. (R&R (Doc. 2 (citing TR (Doc. 29) at 18).
The
Magistrate Judge did not consider this “catch
22”[3] situation described by the trial judge
because it was not presented to her. She focused on the
double jeopardy protection of a “defendant's right
to have his ‘trial completed by a particular tribunal,
'” (R&R (Doc. 40) at 6 (quoting Arizona v.
Washington, 434 U.S. 497, 504 (1978), and the Fifth
Amendment's bar to retrial of a defendant unless the
trial court's declaration of a mistrial, over the
defendant's objection, was due to ‘manifest
necessity.'” She concluded based on the record that
the defendant objected to his attorney's request for a
mistrial that the trial court's failure to make a finding
of manifest necessity doomed the mistrial. Noting the
mistrial was called on Thursday and the status conference was
held on Monday, with counsel well and in attendance, she
noted that “nothing in the record suggest[ed] that,
after a short continuance, a full and fair trial could not
have been held with the first jury empaneled.” (R&R
(Doc. 40) at 6-7.)
With
the advantage of the R&R briefs, this Court answers the
question not addressed by the Magistrate Judge. Was the
mistrial granted at the request of the defendant?
“‘If a case is dismissed after jeopardy attaches
but before the jury reaches a verdict, a defendant may be
tried again for the same crime only in two circumstances: (1)
if he consents to the dismissal; or (2) if the district court
determines that the dismissal was required by ‘manifest
necessity.'” United States v. Chapman, 524
F.3d 1073, 1081 (9th Cir. 2008) (quoting
United States v. Bonas, 344 F.3d 945, 948
(9th Cir. 2003)). The Magistrate Judge analyzed
the Petition under the second prong. This Court looks at the
first: “When a mistrial is the result of a
defendant's request and not the result of intentional
prosecutorial provocation, ‘the manifest necessity'
standard has no place in the application of the Double
Jeopardy Clause.” (Objection (Doc. 42) at 4 (citing
Oregon v. ...