United States v. Robert Bradley, Norman Speck, 905 F.2d 1482, 11th Cir. (1990)
United States v. Robert Bradley, Norman Speck, 905 F.2d 1482, 11th Cir. (1990)
2d 1482
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,
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
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.
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
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 )
The marijuana counts which were severed during trial and which remain
pending against appellants are Counts Four, Five and Ten of the indictment