UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1131
UNITED STATES OF AMERICA,
Appellee,
v.
DOMENIC SIMONETTI
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Selya and Cyr,
Circuit Judges.
Edward S. MacColl, by Appointment of the Court, with whom
Marshall J. Tinkle and Thompson, McNaboe, Ashley & Bull, were on
brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Jay P. McCloskey, United States Attorney, and Jonathan
A. Toof, Assistant United States Attorney, were on brief for
appellee.
July 20, 1993
TORRUELLA, Circuit Judge. Defendant Domenic Simonetti
was charged with conspiracy to possess cocaine with intent to
distribute it in violation of 21 U.S.C. 841(a)(1),
841(b)(1)(C), and 846. After the trial began, the district court
severed Simonetti's case from that of his codefendant and
declared a mistrial over Simonetti's objection. Simonetti later
moved to dismiss the indictment, alleging retrial would
constitute double jeopardy in violation of his constitutional
rights. The district court denied the motion and we affirm.
Prior to trial, the government released to Simonetti
redacted reports of government interviews with Peter Shoureas.
The reports referred to drug transactions between Shoureas and
various other individuals. At trial, the government sought to
prove that Domenic Simonetti (also referred to as "Nick")
conspired with Shoureas and others to possess and distribute
cocaine. While cross-examining Shoureas, Simonetti's attorney,
Mr. Lilley, discovered that the unedited reports showed that the
conspiracy arguably involved another individual who was also
referred to as "Nick." On different occasions during his drug
trafficking career, Shoureas apparently conspired with Nicholas
Skinsacos and later, defendant Domenic Simonetti. Skinsacos'
name was redacted in the government's reports, however. This new
information offered potentially exculpatory evidence for
Simonetti because the defense could have attempted to show that
the references to "Nick" implicated Skinsacos, not Simonetti.
Attorney Lilley moved to dismiss the case on the basis
of Brady v. Maryland, 373 U.S. 83 (1963), because the government
failed to disclose this exculpatory evidence before trial. In
addition, Lilley informed the court that he had a conflict of
interest because he previously represented Skinsacos. The
district court determined that the government did not
intentionally violate its disclosure duty by deleting Skinsacos'
name from the Shoureas reports, but agreed that the references
should have been provided to the defense.1 As a remedy, the
court ordered disclosure of all references to Skinsacos. The
court concluded that the delayed disclosure did not prevent the
defense from effectively presenting its case and thus denied the
motion to dismiss, finding dismissal unwarranted by Brady or its
progeny. See United States v. Devin, 918 F.2d 280, 289 (1st Cir.
1990) (delayed disclosure does not warrant dismissal where
defendant can effectively use information belatedly disclosed).2
Attorney Lilley's conflict of interest with Skinsacos
remained, however. The district court recognized that a
legitimate defense strategy would attempt to show that references
to "Nick" implicated Skinsacos, not Lilley's present client,
Simonetti. Lilley's ability to represent Simonetti was impaired,
however, because Maine Bar Rules 3.4(e)3 and 3.6(l)(1) prohibit
1 The district court deemed the oversight careless and
specifically found no bad faith on the part of the prosecutor.
2 Simonetti does not specifically challenge this ruling.
3 Maine Code of Professional Responsibility Rule 3.4(e)
provides:
A lawyer shall not accept employment
adverse to a former client without that
client's informed written consent if such
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the use of confidential information obtained in a prior
representation to the detriment of the prior client or for the
benefit of another party without informed written consent of the
prior client.4 Consequently, Lilley could not have vigorously
defended Simonetti without a waiver from Skinsacos. Cf. United
States v. Marren, 919 F.2d 61, 63 (7th Cir. 1990).
The district court granted a continuance for several
days in an effort to resolve the conflict of interest. Over
Simonetti's objection, the court eventually severed Simonetti's
case from his codefendant5 and concluded that manifest necessity
justified declaring a mistrial. Simonetti moved to dismiss the
case on double jeopardy grounds and the district court denied the
motion, finding that a new trial would not violate the Double
Jeopardy Clause. This appeal followed.
The Double Jeopardy Clause of the Fifth Amendment
new employment involves the subject
matter of the former employment or may
involve the use of confidential
information obtained through such former
employment.
4 Maine Code of Professional Responsibility Rule 3.6 (l)(1)
provides in relevant part:
[A] lawyer shall not, without the
informed written consent of the client,
knowingly reveal a confidence or secret
of the client; use such confidence or
secret to the disadvantage of the client;
or use such confidence or secret to the
advantage of the lawyer or a third
person.
5 Counsel for codefendant argued that further delay would
prejudice his client.
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provides that no person shall be twice placed in jeopardy for the
same offense. Retrial after a properly declared mistrial does
not automatically offend the Double Jeopardy Clause. Arizona v.
Washington, 434 U.S. 497, 505 (1978). Where mistrial is declared
over defendant's objection, retrial is permissible only if the
mistrial was justified by "manifest necessity." Id.; United
States v. P rez, 22 U.S. (9 Wheat.) 579 (1824). The Supreme
Court has interpreted "manifest necessity" to mean a "high
degree" of necessity. Arizona, 434 U.S. at 505; see Brady v.
Samaha, 667 F.2d 224, 228 (1st Cir. 1981). "The 'manifest
necessity' standard provides sufficient protection to the
defendant's interests in having his case finally decided by the
jury first selected while at the same time maintaining 'the
public's interest in fair trials designed to end in just
judgments.'" Oregon v. Kennedy, 456 U.S. 667, 672 (1982)
(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). The
prosecution bears a heavy burden in demonstrating that "manifest
necessity" exists when the defendant's "valued right to have his
trial completed by a particular tribunal" is implicated.
Arizona, 434 U.S. at 503 & n.11, 505. Moreover, the Court has
consistently emphasized that the standard cannot be applied
mechanically or "without attention to the particular problem
confronting the trial judge." Id. at 506; see also Illinois v.
Somerville, 410 U.S. 458, 462 (1973).
"Our duty as a reviewing court is to assure ourselves
that the trial judge engaged in a 'scrupulous exercise of
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judicial discretion' in making the decision that a mistrial was
necessary."6 Samaha, 667 F.2d at 228 (quoting United States v.
Jorn, 400 U.S. 470, 485 (1971)). In the past, we have considered
significant whether the trial judge (1) considered alternatives
to a mistrial, (2) afforded counsel an opportunity to be heard on
the issue, and (3) decided precipitously or after sufficient
reflection. United States v. Ram rez, 884 F.2d 1524, 1528-29
(1st Cir. 1989); Samaha, 667 F.2d at 228-29; see also Arizona,
434 U.S. at 515-16.
In the present case, the district court judge
scrupulously exercised his discretion. After the conflict of
interest was first discovered, the trial judge held a conference
in chambers to discuss possible remedies. He suggested several
options: dismissal, declaration of mistrial, or continuance to
permit Simonetti to retain other counsel or to obtain a waiver
from Skinsacos. The judge then called a recess to let counsel
research the problem and review all options. Later, the hearing
resumed, only to be continued on several more occasions over the
next several days. The district judge specifically requested
alternative remedies from the parties and provided ample time to
obtain the waiver from Skinsacos. Simonetti ultimately engaged
6 Contrary to Simonetti's suggestion, this is not a case
involving prosecutorial misconduct designed to "harass or to
achieve tactical advantage over the accused," which would warrant
review under the "strictest scrutiny" standard. See Arizona, 434
U.S. at 508. The district court specifically found that neither
party could be faulted for failing to discover the conflict of
interest prior to trial. See United States v. Simonetti, No. 92-
22, slip op. at 1-2 & n.2 (D. Me. Jan. 27, 1993).
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substitute counsel who did not have a conflict of interest. The
judge asked new counsel whether he could suggest other remedies,
whether Simonetti wished to continue the case with his new
attorney, or whether a waiver could be obtained from Skinsacos.
The court even considered continuing the case to allow new
counsel time to prepare the case from where Attorney Lilley left
off. This solution was rejected because a continuance would have
been unfairly prejudicial to codefendant. Likewise, to proceed
with the codefendant and later reconvene the jury to hear
Simonetti's case was not viable because the judge believed that
the jury could not return a fair verdict under such
circumstances.
In sum, the judge considered alternatives, implored the
original counsel and new counsel to proffer remedies, and devoted
ample time and energy to resolve the conflict of interest
problem, while remaining mindful of Simonetti's strong interest
in completing his trial before the first jury impaneled. The
court could not devise a remedy that would resolve the conflict
of interest and permit the case to continue before the original
jury. As a result, mistrial was a manifest necessity. The
district court therefore did not abuse its discretion by granting
the mistrial over defendant's objection.
Simonetti also argues that, even absent less drastic
alternatives to mistrial, retrial is barred where mistrial is
caused by governmental misconduct. Simonetti concedes that this
is not a case in which the prosecution intentionally goaded or
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provoked the mistrial. See Oregon, 456 U.S. at 679. However,
retrial also may be barred where "egregious or unfair behavior"
by the prosecution "could be considered, objectively, as
equivalent to an intentional effort to provoke mistrial." United
States v. Larouche Campaign, 866 F.2d 512, 518 (1st Cir. 1989).
The inquiry into the prosecutor's intent calls for a finding of
fact. Id. The district court found that the failure to disclose
the references to Nick Skinsacos in the redacted reports was
inadvertent, although careless. See supra notes 1 & 6. The
record evidence supports this factual finding.
Simonetti finally urges that we adopt the novel rule of
Hylton v. Eighth Judicial Dist. Court, Dept. IV, 103 Nev. 418,
743 P.2d 622 (Nev. 1987), that bars retrial where governmental
misconduct which rises to the level of "inexcusable negligence"
causes a mistrial. In this case, the mistrial resulted from the
conflict of interest, not the unintentional failure to disclose
potentially exculpatory evidence, see supra note 1. Under these
circumstances, the government simply could not have known that
Attorney Lilley's law firm had represented Skinsacos, who was
only a peripheral player in Simonetti's case, some five years
earlier. We thus do not confront a case in which inexcusable
neglect by the prosecutor caused the mistrial, and consequently,
have no cause to consider the wisdom of Nevada's rule.
We affirm the decision of the district court as the
Double Jeopardy Clause poses no bar to a new trial.
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United States v. Donovan
Combined Opinion