United States v. Robert Bradley, Norman Speck, 905 F.2d 1482, 11th Cir. (1990)

905 F.
2d 1482
UNITED STATES of America, Plaintiff-Appellee,

v.
Robert BRADLEY, Norman Speck, Defendants-Appellants.
No. 89-5248.
United States Court of Appeals,

Eleventh Circuit.
July 13, 1990.
Alvin E. Entin, Entin, Schwartz, Margules & Lazarus, Miami, Fla., for
Robert Bradley and Norman Speck.
Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Eileen M. O'Connor, Anne
R. Schultz, and Linda Collins Hertz, Asst. U.S. Attys., Ft. Lauderdale,
Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before KRAVITCH and JOHNSON, Circuit Judges, and KAUFMAN * ,
Senior District Judge.
FRANK A. KAUFMAN, Senior District Judge:
Appellants Robert Bradley and Norman Speck were among twenty-one
defendants indicted in the United States District Court for the Southern
District of Florida pursuant to a twenty-nine count indictment filed on
September 23, 1987 in which various marijuana and cocaine offenses were
charged. The indictment contained twenty-one counts charging
substantive cocaine-related offenses (Counts 1-3; 12-29). All twenty-one
defendants were charged with one or more cocaine-related offenses. In
addition, the indictment contained eight counts charging substantive
marijuana-related offenses (Counts 4-11). Along with nine other of those
defendants, Bradley and Speck were charged with relation to both
marijuana and cocaine.1
Owing to pleas of guilty and the fugitive status of two of the defendants,
the case proceeded to trial against nine defendants, only two of whom,
Speck and Bradley, were charged in any of the marijuana counts.

Prior to trial and during the first four and one-half days of testimony of the
twenty-four day trial, defendants filed various severance motions. Speck
and Bradley sought complete severance from co-defendants on the basis
of prejudicial spillover. The remaining defendants requested the severing
of the marijuana counts from the cocaine counts.2 The district court did
not rule with respect to any of those motions prior to trial. However, on
the fifth day of testimony, that court severed the marijuana counts from
the indictment pursuant to Fed.R.Crim.P. 14 and continued the trial
against the nine defendants in connection with the cocaine counts.
At the conclusion of trial, the jury acquitted Speck on each of the cocaine
counts pursuant to which he was charged; however, the jury failed to
reach a verdict concerning any of the cocaine counts as to Bradley. In
addition, the jury found five of the remaining seven defendants guilty as to
at least one of the cocaine conspiracy charges, and failed to reach a verdict
as to two others.3
The trial court set the severed marijuana counts against Bradley and
Speck apart for a subsequent trial, and denied appellants' motions to
dismiss those charges. Contending as they had below that retrial of those
remaining counts is barred by the Fifth Amendment of the Constitution,
Bradley and Speck appeal. We affirm.
A. FACTS
The evidence adduced by the government at trial was that Bradley and
Speck were active participants in extensive marijuana and cocaine
smuggling operations from 1984 to 1986. According to that evidence,
Speck flew an aircraft containing marijuana from Jamaica into the United
States as part of a smuggling operation in 1984. In connection with that
operation, Bradley added additional fuel capacity, i.e., plumbed, to a
second aircraft involved in the smuggling operation and made other
repairs to that aircraft in addition to acting as a "spotter" for both aircraft
as they arrived over the United States to determine if law enforcement
aircraft were in pursuit. In May, 1985, the participants in the marijuana
smuggling operation became involved with cocaine because dealing in
cocaine was more lucrative. The cocaine operation ran from May, 1985
until May, 1986. Bradley continued to plumb, and provide repairs to,
aircraft involved in the smuggling. In addition, on at least one occasion,
Bradley again acted as a "spotter" for aircraft returning to this country
with cocaine. The government's evidence also showed that Speck allowed
aircraft owned by himself and his brother to be used in the smuggling

operation, "plumbed" certain of those planes prior to takeoff, and "checked
out" in one of his aircraft one of the pilots who was to fly in the
smuggling operation.
B. APPEALABILITY
Under Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d
651 (1977), the denial of a double jeopardy motion is an appealable order,
prior to trial, under 28 U.S.C. Sec. 1291, if the " 'claim[ ] of former
jeopardy' " is "at least 'colorable,' " and is not " 'frivolous.' " Richardson v.
United States, 468 U.S. 317, 322, 104 S.Ct. 3081, 3084, 82 L.Ed.2d 242
(1984), quoting Abney, 431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8, and
United States v. MacDonald, 435 U.S. 850, 862, 98 S.Ct. 1547, 1553, 56
L.Ed.2d 18 (1978). In Richardson, Justice Rehnquist wrote that "[a]
colorable claim ... presupposes that there is some possible validity to a
claim." Id. 468 U.S. at 326 n. 6, 104 S.Ct. at 3086 n. 6.
The district court, in denying appellants' motion to dismiss the remaining
charges against them, stated that it regarded appellants' double jeopardy
claims as frivolous. In United States v. Dunbar, 611 F.2d 985, 986 (5th
Cir.1980) (en banc ), the Fifth Circuit,4 held "that an appeal from the
denial of a frivolous double jeopardy motion does not divest the district
court of jurisdiction to proceed with trial, if the district court has found the
motion to be frivolous." The court commented that "this rule implements a
theory of dual jurisdiction" between the district court and the circuit court,
noting that "[t]he idea of dual jurisdiction is not a new concept in federal
jurisprudence." Id. at 989. Under Dunbar, the court below, after making a
written finding that appellants' double jeopardy motion was frivolous, was
not thereby divested of jurisdiction over the within case, despite
appellants' filing of notices of appeal to this court. Accordingly, the
district court could have proceeded to trial herein without awaiting the
results of this appeal if that court's decision that the within double
jeopardy claim is frivolous were correct.5 However, in its brief, the
government concedes that Bradley and Speck have presented a
"colorable" double jeopardy claim, and, consequently, that this court has
jurisdiction to hear the instant appeal. In our view, that concession is
appropriate, and we therefore treat the double jeopardy claim of
appellants as nonfrivolous.
C. DOUBLE JEOPARDY PRINCIPLES
Speck and Bradley contend that retrial of the marijuana counts in this
case 6 is barred by the Double Jeopardy Clause of the Fifth Amendment

because, under United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547,
556, 27 L.Ed.2d 543 (1971), the district court's severance during trial of
the marijuana counts, without their consent, deprived them of their
constitutionally protected right to have their trial completed by the jury
selected to serve in that trial.
"The Double Jeopardy Clause of the Fifth Amendment protects a
defendant in a criminal proceeding against multiple punishments or
repeated prosecutions for the same offense." United States v. Dinitz, 424
U.S. 600, 606, 96 S.Ct. 1075, 1078, 47 L.Ed.2d 267 (1976) (footnote
omitted). The Supreme Court has long held that the Fifth Amendment's
double jeopardy prohibition mandates that "jeopardy attaches when the
jury is empaneled and sworn." Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct.
2156, 2160, 57 L.Ed.2d 24 (1978), citing Downum v. United States, 372
U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Where a criminal
defendant requests and is granted a mistrial, double jeopardy provisions
do not apply, absent prosecutorial or judicial misconduct which involves
"bad faith in order to goad the [defendant] into requesting a mistrial."
Dinitz, 424 U.S. at 607-08, 611, 96 S.Ct. at 1079-80, 1081; Jorn, 400 U.S.
at 485, 91 S.Ct. at 557. However, "where the judge, acting without the
defendant's consent, aborts the proceeding, the defendant has been
deprived of his 'valued right to have his trial completed by a particular
tribunal.' " Jorn, 400 U.S. at 484, 91 S.Ct. at 556, quoting Wade v. Hunter,
336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949) (footnote
omitted). The Constitution protects that valued right "by requiring that a
trial judge declare a mistrial without the consent of the defendant only
after it determines that mistrial is a manifest necessity." Abdi v. State of
Georgia, 744 F.2d 1500, 1503 (11th Cir.1984), cert. denied, 471 U.S.
1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985) (footnote omitted). In other
words, in the absence of a motion or consent by the defendant, there can
be no new trial unless " 'there is a manifest necessity for the [mistrial], or
the ends of public justice would otherwise be defeated.' " Jorn, 400 U.S. at
481, 91 S.Ct. at 555, quoting Justice Story in United States v. Perez, 22
U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).
D. WAIVER
1
Had the district court completely severed appellants from the trial as they
requested, they would clearly presently have no double jeopardy claim absent a
showing that the government intended "to subvert" the protections afforded by
the Double Jeopardy Clause by "goad[ing them] into moving for a mistrial."
Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416
(1982). See United States v. Posner, 780 F.2d 1536, 1537 (11th Cir.), cert.
denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986). However, in
this case, the district court did not so do but rather severed the marijuana counts
only and continued the trial against all of the defendants, including Speck and
Bradley, as to the cocaine charges. When it so did, Speck and Bradley objected
to the proposed severance, sought instead a complete severance, rather than just
a severance of the marijuana counts, and advised the court that they were
"going to take the position that jeopardy had attached and that there cannot be a
trial in connection with those [severed marijuana] counts." The government
suggests that since appellants moved for total severance and thus were willing
to remove from trial all issues before the empaneled jury, and the district court
granted only partial severance, each of appellants waived his right to claim
double jeopardy as a result. The government contends that by so doing,
appellants made a deliberate election to forego their valued rights to have their
guilt or innocence determined before the empaneled jury. Appellants, on the
other hand, maintain that by seeking a total severance out of concern for the
possible taint or prejudicial spillover from the cocaine evidence adduced against
co-defendants, they did not waive their right to claim double jeopardy as to the
marijuana counts as a result of the trial court's grant of their co-defendants'
motions for partial severance. In that regard, appellants point out that at no time
did they make a motion solely for severance of the marijuana charges. Rather,
after the jury was sworn, they sought only total severance. In that context,
Speck and Bradley are correct--and the government is wrong--with regard to
the government's waiver contention.
E. JOINDER
2
According to appellants, the necessity for some type of severance was

occasioned not by circumstances arising unexpectedly at trial, but rather by the
alleged initial misjoinder of the cocaine and marijuana counts in the indictment,
and the government's refusal to give up the unfair advantage obtained thereby
after trial started and up to and including the severance action by the district
court.
In the companion appeal arising from the same prosecution and trial as the
within case, United States v. John Weaver, et al., 905 F.2d 1466,7 Speck and
Bradley's co-defendants, Sikes and Weaver, have challenged the government's
joinder of the marijuana counts with the cocaine charges in the same indictment
as improper. Speck and Bradley do not expressly raise any claim of improper
joinder in this appeal. However, to the extent they implicitly so do, we hold
such joinder erroneous for the same reasons stated in our opinion in Weaver,
but also conclude that it is harmless error in connection with the cocaine
charges against Speck and Bradley for the reasons stated in Weaver and also
because Speck was acquitted as to all of the cocaine counts, and the jury failed
to reach a verdict as to Bradley concerning any of the cocaine counts. However,
Speck and Bradley assert that without the improper initial joinder in the
indictment of the marijuana charges with the cocaine charges, they would not
have been subject to nearly five days of trial on the marijuana charges before
those charges were severed out. That brings us to application of the doctrine of
manifest necessity.F. MANIFEST NECESSITY
4
Neither Bradley nor Speck has alleged--and the record does not reflect--any bad
faith conduct on the part of the judge or the prosecutor, or any intent on the part
of the prosecutor to provoke any of the defendants in the trial below into
seeking a mistrial. Quite the contrary, the record reveals that by joining all
defendants and offenses into a single indictment, the prosecutor sought to try all
of the defendants only once. Indeed, throughout the trial, the prosecutor
opposed all of defendants' various motions for severance or mistrial, and also
opposed the trial court's mid-trial severance decision. Unlike Jorn, supra, where
the trial judge acted on his own motion in declaring a mistrial without the
defendant's consent and gave no consideration to the possibility of a trial
continuance, the trial judge below scrupulously considered all of defendants'
and the prosecutor's arguments before finally severing the marijuana counts
under Fed.R.Crim.P. 14.
Appellants concede that some type of severance was manifestly necessary as a

result of the improper misjoinder in the indictment. The question arises,
however, as to whether, when such joinder, as it was here, was caused not by
bad faith but at most by bad judgment on the part of the prosecution and by an
initial error by the district court in not ordering a severance before trial, Speck
and Bradley are entitled per se to interpose the bar of double jeopardy to a new
trial against them on the marijuana counts. The answer to that question is "no."
Initial perfection in such matters is not guaranteed to any defendant. And if
error in joinder occurs under Fed.R.Crim.P. 8(b), the trial court is empowered
to sever after trial starts under Fed.R.Crim.P. 14 if manifest necessity so
requires. If that were not so, "mistrials caused by prosecutorial or judicial errors
could never be followed by second trials, because it is never manifestly
necessary to make a mistake. Yet ... a prosecutor's blunder in drafting an
indictment [can] suppl[y] manifest necessity for a mistrial." United States v.
Buljubasic, 808 F.2d 1260, 1265 (7th Cir.), cert. denied, 484 U.S. 815, 108
S.Ct. 67, 98 L.Ed.2d 31 (1987). Thus, "[i]f the judge makes a mistake before
trial, it can be corrected and the accused tried properly. If the judge makes a
mistake after trial, that too can be corrected.... If the prosecution makes a
mistake in drafting the indictment, and this causes a mid-trial dismissal, that
may be corrected and the trial redone." United States ex rel. Young v. Lane,
768 F.2d 834, 839 (7th Cir.), cert. denied, 474 U.S. 951, 106 S.Ct. 317, 88
L.Ed.2d 300 (1985) (citations omitted). See also United States v. Beasley, 550
F.2d 261, 274-75 (5th Cir.) (Fay, J.), cert. denied, 434 U.S. 863, 98 S.Ct. 195,
54 L.Ed.2d 138 (1977).
6
Speck and Bradley also assert in this appeal that, in any event, the severance
ordered by the district court was not manifestly necessary. We disagree. The
classic formulation of what constitutes manifest necessity was advanced by
Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed.
165 (1824). Nevertheless, there is still "no precise formulation or mechanical
application" for determining what facts constitute manifest necessity, "for the
'high degree' of necessity mandated by the phrase can be found in a variety of
circumstances." Abdi, 744 F.2d at 1503, quoting Arizona v. Washington, 434
U.S. 497, 506-07, 98 S.Ct. 824, 830-31, 54 L.Ed.2d 717 (1978) (footnote
omitted). To determine if severance was manifestly necessary, a reviewing
court must examine "the entire record in the case without limiting itself to the
actual findings of the trial court." Abdi at 1503. "The manifest necessity for a
mistrial can exist alongside less drastic alternatives, so long as the record
discloses that the trial court considered alternatives before declaring mistrial."
Id. Thus, an important consideration in an appeal such as this one is whether the
trial court carefully considered the alternatives and exercised sound discretion
and did not act in an abrupt, precipitous or erratic manner. See Jorn, 400 U.S. at
487, 91 S.Ct. at 558. "The decision of the ... trial court that mistrial was a
manifest necessity deserves great deference ... especially ... when the grounds
for the mistrial relate to jury prejudice, for the trial judge is in a particularly
good position to observe the jurors, the witnesses and the attorneys in order to
evaluate the extent of the prejudice." Abdi, 744 F.2d at 1503, citing Arizona v.
Washington, 434 U.S. at 510-14, 98 S.Ct. at 832-35. No party in a criminal
prosecution "has a right to have his case decided by a jury which may be
tainted by bias; in these circumstances, 'the public's interest in fair trials
designed to end in just judgments' must prevail over the defendant's 'valued
right' to have his trial concluded before the first jury impaneled." Arizona v.
Washington, 434 U.S. at 516, 98 S.Ct. at 835-36 (1978), quoting Wade v.
Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949) (footnotes
omitted). Moreover, the Supreme Court has suggested that an additional
consideration in assessing manifest necessity is a determination "as to which
party to the case was the beneficiary of the mistrial ruling." Jorn, 400 U.S. at
482, 91 S.Ct. at 555. Thus, in Gori v. United States, 367 U.S. 364, 81 S.Ct.
1523, 6 L.Ed.2d 901 (1961), the Court "upheld reprosecution" after a mistrial in
an opinion which "appears to tie the judgment that there was no abuse of
discretion in these circumstances to the fact that the judge was acting 'in the
sole interest of the defendant.' " Jorn, 400 U.S. at 482, 91 S.Ct. at 555, quoting
Gori, 367 U.S. at 369, 81 S.Ct. at 1526.
7
In its order dismissing appellants' motion to dismiss, the district court noted that
"[a]s the trial progressed it became apparent to the court that it was difficult to
separate the various conspiracies and that some severance was in order." The
record reflects that all defendants agreed at some time during the trial that some
type of severance was absolutely necessary; they just could not agree with
respect to who or what should be severed. It is also clear that the district court,
before declaring a mistrial, listened to detailed argument, devoted substantial
time to the issue, carefully weighed possible alternatives and took into account
prejudice to the non-appellant defendants, judicial economy and the avoidance
of multiple litigations regarding the same or similar offenses. And, as in Gori,
367 U.S. at 369, 81 S.Ct. at 1526, in granting the co-defendants' severance
motion, the court below acted "in the sole interest[s] of the defendant[s]," and
contrary to the urging of the prosecutor. Under the circumstances, manifest
necessity existed for the trial court to sever one or more charges and/or
defendants. In that light, as Judge Vance has written, "once a severance is found
to be warranted by manifest necessity, the trial court has sound discretion over
who is to be retained and who is to be severed." United States v. Aguiar, 610
F.2d 1296, 1301 (5th Cir.), cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d
31 (1980). It is true that the district court did not make a specific finding as to
manifest necessity. However, that fact is of little import in this case in which
the record contains more than "sufficient justification" for such a finding.
Arizona v. Washington, 434 U.S. at 516-17, 98 S.Ct. at 835-36.
Accordingly, we conclude that the trial court soundly exercised its discretion in
granting severance of the marijuana counts. Therefore, retrial of appellants
upon the marijuana counts is not barred by the Double Jeopardy Clause. The
district court's denial of appellants' motion to dismiss the marijuana counts is
Affirmed, and the within case is Remanded to the district court for trial of the
marijuana counts.
Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of
Maryland, sitting by designation
In the indictment, Speck and Bradley, plus seventeen others, were charged in
Count Two with conspiracy to import at least one kilogram of cocaine, in
violation of 21 U.S.C. Sec. 963. Count Three charged all defendants, including
appellants, with conspiracy to possess with intent to distribute at least one

kilogram of cocaine, in violation of 21 U.S.C. Sec. 846
Bradley and Speck, along with up to nine others who did not proceed to trial,
were charged in Counts Four and Five, respectively, with conspiracy to import
and conspiracy to possess with intent to distribute marijuana, in violation of 21
U.S.C. Secs. 963 and 846, and in Count Ten with interstate travel to promote
unlawful activity involving marijuana, in violation of 18 U.S.C. Secs. 1952 and
2.
In addition, Bradley was charged in Count Thirteen with possession with intent
to distribute at least one kilogram of cocaine, in violation of 21 U.S.C. Sec.
841(a)(1). Speck was charged in Count Twenty with importation of at least one
kilogram of cocaine, in violation of 21 U.S.C. Sec. 952(a) and in Count
Twenty-One with possession with intent to distribute at least one kilogram of
cocaine, in violation of 21 U.S.C. Sec. 841(a)(1).
2
In addition to Speck's pretrial Motion for Severance Based Upon Prejudicial

Joinder, which was adopted by Bradley, co-defendant Robert Fowlkes filed a
pretrial motion to sever the marijuana counts, which he orally renewed at trial,
and in which co-defendants Thomas Sikes, John Weaver, and Francis Scara
joined. At that time, the district court indicated that all defendants would be
considered as having joined in the motion unless they specifically indicated
otherwise. The government opposed all severance motions
The separate appeals of Sikes and Weaver, who were convicted upon some of
the cocaine charges, have been decided adversely to them in an opinion filed by
this court today
Decisions of the United States Court of Appeals for the Fifth Circuit prior to
October 1, 1981 are binding as precedent in the Eleventh Circuit. Bonner v.
City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc )
In that same Order in which it determined the double jeopardy claim to be

frivolous, the court below stated: "The defendants who raise this issue [Speck
and Bradley] have stated that they intend to appeal if their motion is denied.
Although the court feels that this issue is frivolous, the court will sever out the
defendant Donald Wilson for a separate trial since he is being held in pre-trial
detention." Thus, it would appear that the district court, in its discretion,
decided not to proceed to trial against Speck and Bradley during the pendency
of this appeal
The marijuana counts which were severed during trial and which remain
pending against appellants are Counts Four, Five and Ten of the indictment
See note 3, supra

United States v. Robert Bradley, Norman Speck, 905 F.2d 1482, 11th Cir. (1990)

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United States v. Robert Bradley, Norman Speck, 905 F.2d 1482, 11th Cir. (1990)

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905 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

Speck and Bradley, were charged in any of the marijuana counts.

aircraft owned by himself and his brother to be used in the smuggling

case 6 is barred by the Double Jeopardy Clause of the Fifth Amendment

According to appellants, the necessity for some type of severance was

Appellants concede that some type of severance was manifestly necessary as a

appellants, with conspiracy to possess with intent to distribute at least one

In addition to Speck's pretrial Motion for Severance Based Upon Prejudicial

In that same Order in which it determined the double jeopardy claim to be

See note 3, supra

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