United States Court of Appeals
For the First Circuit
No. 07-2066
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN AVILES-SIERRA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge, and
Lipez and Howard, Circuit Judges.
Vernon Benet Miles, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, were on brief for
appellee.
Hector L. Ramos Vega, with whom Joseph C. Laws, Jr., Federal
Public Defender, and Hector E. Guzman-Silva, Assistant Federal
Public Defender, were on brief for appellant.
July 11, 2008
LIPEZ, Circuit Judge. Defendant-appellant Edwin Aviles-
Sierra was tried on charges of possessing and importing cocaine
with the intent to distribute it. His trial ended after he
requested and was granted a mistrial. He argues, in this
interlocutory appeal from a denial of his motion to dismiss on
double jeopardy grounds, that his reprosecution should be barred
because the government deliberately provoked the mistrial. The
district court concluded, as a factual matter, that the mistrial
was not deliberately provoked. Finding no clear error in that
conclusion, we affirm.
I.
On November 27, 2006, a canine alert led agents from
Immigration and Customs Enforcement (ICE) to find a plastic bag
containing cocaine hidden in Aviles's van when he arrived in Puerto
Rico aboard a car ferry from the Dominican Republic. Aviles was
questioned by ICE agents and arrested. He was indicted on charges
of possessing and importing cocaine into the United States with the
intent to distribute, in violation of 21 U.S.C. §§ 952(a) and
841(b)(1)(A)(ii).
On the second day of his trial, during the prosecution's
case-in-chief, ICE Agent Angelico Santiago-Rivera testified that
the defendant had been asked by agents "if he was going to take the
blame for it [the cocaine], and he said yes." Defense counsel
immediately objected on grounds that he had no prior knowledge of
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this inculpatory statement by the defendant and that it was not
part of the discovery provided by the government prior to trial.
He then moved for a mistrial.
The court took the motion under advisement during the
lunch break. Upon returning from the recess, the court asked the
prosecutor whether he had knowledge of the inculpatory statement.
The prosecutor stated that, although he had talked with Agent
Santiago about the case, he "did not recall specifically that
information being indicated." The court noted that the inculpatory
statement did not appear in the agent's written report.
Defense counsel then questioned Agent Santiago, who
admitted that he had not included the inculpatory statement in his
written report and stated that he did not remember whether he had
told the prosecutor about the statement. Defense counsel moved for
a judgment of acquittal and renewed his motion for a mistrial on
the basis of the discovery violation by the government. In his
argument, counsel also cited several previous cases in which, he
alleged, the same prosecutor had committed discovery violations.
The prosecutor responded by stating that, "in an effort
to protect [his] own credibility, [his] own reputation, as well as
that of the agency and the agent, [he was] not opposed to a
mistrial if that's what we have to do in order to protect
Defendant's interest." Although the court stated that it had "a
couple of cases" that would have supported a decision to deny the
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defendant's motions, the court nevertheless agreed to grant the
mistrial motion because both parties had now requested a mistrial.
After the grand jury returned a superseding indictment,
Aviles moved for dismissal of the indictment on double jeopardy
grounds and because of the prosecution's discovery violation.1 The
memorandum of law accompanying his motion described what Aviles
perceived to be the gravity and inexplicability of the discovery
violation, and stated that once the agent had testified about the
inculpatory statement "a mistrial motion was guaranteed." However,
the memorandum stopped short of asserting that the discovery
violation was intentional or that the statement had been
intentionally withheld – by either the prosecutor or the case agent
– and then revealed at trial for the purpose of provoking a
mistrial.2
The district court denied the motion to dismiss. In its
written decision, the court explained:
The Court cannot find that the United States
acted to force Aviles into requesting a
mistrial deliberately. The Court asked the
Assistant U.S. Attorney in the case if he had
heard the statement before that day, and he
represented to the Court that he had not.
1
On appeal, Aviles does not pursue the theory that dismissal
was warranted as a sanction for the discovery violation itself.
2
1 A single line in Aviles's memorandum states that "[i]f [the
2 prosecutor] asked and the agent withheld the information from him,
3 the government is chargeable with that conduct." However, Aviles
4 never asserted that the agent had, in fact, intentionally withheld
5 the information.
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Furthermore, Agent Santiago had not included
the statement in his report and when answering
questions from defense counsel he testified
that he did not remember telling the Assistant
U.S. Attorney about the statement. Moreover,
even without the statement, the evidence
presented at trial was sufficient to support a
guilty verdict and any prejudice that Aviles
could have suffered because the jury heard the
statement would be negligible. Under the
circumstances, the Court does not find any bad
faith on the United States' part in not
disclosing the statement.3
Aviles then filed this appeal.
II.
Although a defendant cannot ordinarily pursue an
immediate appeal from an interlocutory order in a criminal case, we
permit interlocutory appeals from denials of motions to dismiss on
double jeopardy grounds. Abney v. United States, 431 U.S. 651, 662
(1977); United States v. Toribio-Lugo, 376 F.3d 33, 37 (1st Cir.
2004). We review the district court's denial of such a motion to
dismiss for abuse of discretion. Toribio-Lugo, 376 F.3d at 38. We
accept the district court's factual findings unless they are
clearly erroneous and review rulings of law de novo. Id.
The Double Jeopardy Clause provides that no person shall
be "subject for the same offense to be twice put in jeopardy of
3
Aviles also moved to suppress the inculpatory statement he
allegedly made to Agent Santiago on the ground that he had not been
read his Miranda rights prior to making the statement. The court
found that Aviles had "not brought forth sufficient evidence to
controvert the testimony of Agent Santiago" that Aviles had been
given Miranda warnings in Spanish before the questioning began.
Aviles does not appeal this ruling.
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life or limb." U.S. Const. amend. V. However, when a defendant
consents to a mistrial, double jeopardy does not bar reprosecution
unless "the conduct giving rise to the successful motion for a
mistrial was intended to provoke the defendant into moving for a
mistrial." Oregon v. Kennedy, 456 U.S. 667, 679 (1982). As the
Supreme Court has explained, mere prosecutorial error is
insufficient:
Prosecutorial conduct that might be viewed as
harassment or overreaching, even if sufficient
to justify a mistrial on defendant's motion
. . . does not bar retrial absent intent on
the part of the prosecutor to subvert the
protections afforded by the Double Jeopardy
Clause. A defendant's motion for a mistrial
constitutes "a deliberate election on his part
to forgo his valued right to have his guilt or
innocence determined before the first trier of
fact." United States v. Scott, 437 U.S. 82,
93 (1978). Where prosecutorial error even of a
degree sufficient to warrant a mistrial has
occurred, "[t]he important consideration, for
purposes of the Double Jeopardy Clause, is
that the defendant retain primary control over
the course to be followed in the event of such
error." United States v. Dinitz, 424 U.S.
600, 609 (1976). Only where the governmental
conduct in question is intended to "goad" the
defendant into moving for a mistrial may a
defendant raise the bar of double jeopardy to
a second trial after having succeeded in
aborting the first on his own motion.
Id. at 675-76.
On appeal, Aviles argues that Agent Santiago's surprise
testimony regarding the alleged inculpatory statement "disrupted
the entire 'game plan' of the defense attorney." Aviles explains
that "the prosecutor knew that as soon as this statement/confession
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was uttered in court a motion for mistrial was forthcoming." He
then concludes that "[i]t was the government's intent to force the
defense into requesting a mistrial by placing into evidence the
aforementioned admission."
Aviles makes two circumstantial arguments aimed at
showing that the prosecutor intended to "goad" the defendant into
requesting a mistrial in this case. First, he details the
defense's theory of the case, which he claims had become evident to
the prosecution through the content of defense counsel's cross-
examination of government witnesses. He claims that the
prosecution had not anticipated the strength of the defense case.
Thus, he concludes that "the case had become problematic to the
prosecution and stopping it until it could regroup was essential."
This argument is foreclosed by the district court's
finding that the prosecutor was unaware of the inculpatory
statement prior to Agent Santiago's testimony on the stand.
Nothing in the record prompts us to second-guess the district
court's factual finding that the prosecutor had no prior knowledge
of the statement. Because the prosecutor did not know of the
statement, he could not have intentionally elicited the testimony
for the purpose of goading the defendant into moving for a
mistrial, no matter what weaknesses he perceived in his case
against the defendant.
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Second, Aviles points to alleged discovery violations by
the same prosecutor in other cases. None of those cases involved
a mistrial. Moreover, the negligent conduct he describes in those
cases is not probative of whether the prosecutor intentionally
acted to provoke a mistrial in Aviles's case.
On appeal, Aviles argues for the first time that it was
the case agent who intentionally provoked the mistrial. Although
the intentional conduct of an agent could be relevant to an inquiry
into whether the government goaded the defense into moving for a
mistrial, see United States v. Perez Sanchez, 806 F.2d 7, 8-9 (1st
Cir. 1986), Aviles's failure to assert before the district court
that the case agent intentionally provoked the mistrial means that
this claim merits only plain error review, see United States v.
McIntosh, 380 F.3d 548, 555 (1st Cir. 2004). There is no error
here, plain or otherwise, because there is no evidence in the
record to suggest that Agent Santiago took it upon himself to
intentionally withhold the inculpatory statement and then spring it
on the defense at trial for the purpose of goading the defense into
requesting a mistrial.
On this record, the district court did not err in
concluding that the government had no intent to force Aviles into
requesting a mistrial. Accordingly, the denial of the motion to
dismiss is affirmed.
So ordered.
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