08-5797-cr
USA v. Bright
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 0.23 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14 th day of December, two thousand nine.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROSEMARY S. POOLER,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 08-5797-cr
17
18 SIDNEY BRIGHT
19 Defendant-Appellant.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 APPEARING FOR APPELLANT: Marvin E. Schecter, Law Offices
23 of Marvin E. Schecter, New York,
24 New York.
25
1
1 APPEARING FOR APPELLEE: Jillian B. Berman, Joan M.
2 Loughnane, Jesse M. Furman,
3 United States Attorney’s Office
4 for the Southern District of New
5 York, New York.
6
7 Appeal from an order of the District Court for the
8 Southern District of New York (Pauley, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the order of the district court be UPHELD.
12
13 Defendant-appellant Sidney Bright appeals from a
14 November 24, 2008 order by the U.S. District Court for the
15 Southern District of New York (Pauley, J.) denying a motion
16 to dismiss an indictment against him on double jeopardy
17 grounds. We assume the parties’ familiarity with the
18 underlying facts, the procedural history, and the issues
19 presented for review.
20
21 This Court has jurisdiction over an interlocutory
22 appeal under 28 U.S.C. § 1291 when an appellant claims that
23 a prosecution violates his double jeopardy rights. United
24 States v. Pavloyianis, 996 F.2d 1467, 1472 (2d Cir. 1993).
25 This Court reviews “de novo as a question of law the denial
26 of a motion to dismiss an indictment on Double Jeopardy
27 grounds.” United States v. Estrada, 320 F.3d 173, 180 (2d
28 Cir. 2003).
29
30 A mistrial in a defendant’s initial trial does not
31 generally impose a double jeopardy bar if a defendant
32 requests the mistrial or consents to the declaration of the
33 mistrial. Maula v. Freckleton, 972 F.2d 27, 29 (2d Cir.
34 1992); see also United States v. Huang, 960 F.2d 1128, 1133
35 (2d Cir. 1992) (“[T]he Double Jeopardy Clause guards against
36 government oppression; it does not relieve a defendant of
37 the consequences of his voluntary choice to accept a
38 mistrial.”).
39
40 Here, Bright consented to the mistrial. When the issue
41 of the potential conflict resurfaced on the third day of the
42 trial, the judge ensured that the defendant understood what
43 was going on and appointed new counsel to consult with him
44 about the conflicts issue. After a break in the
45 proceedings, the new counsel confirmed that Bright
46 understood the issues and stated that Bright did not wish to
47 waive his right to unconflicted counsel. The court directly
2
1 asked Bright “do you understand as a consequence of . . .
2 the absence of your consent, that I will have to declare a
3 mistrial in this case; do you understand that?” Bright
4 answered affirmatively.
5
6 Bright’s argument that he lacked representation at this
7 stage (and so could not have properly consented) is
8 unsupported by the record. Bright was represented by
9 counsel at all times. The court appointed Richard Jasper
10 “as counsel for Mr. Bright and would ask that [he] confer
11 with him regarding this matter.” The court did not relieve
12 Jasper as “counsel for the defendant in connection with the
13 Curcio matter” until after the mistrial was granted.
14 Furthermore, Bright’s original attorney still represented
15 him until relieved at a conference the following day. His
16 original attorney spoke on his behalf at later points in the
17 mistrial discussion.
18
19 The totality of the circumstances confirm Bright’s
20 consent. United States v. Goldstein, 479 F.2d 1061, 1067
21 (2d Cir. 1973) (“Consent [to a mistrial] need not be
22 express, but may be implied from the totality of
23 circumstances attendant on a declaration of mistrial.”).
24 This Court has held that if a defendant has a chance to
25 object to a mistrial, but chooses not to do so, then a court
26 can infer consent. United States v. Beckerman, 516 F.2d
27 905, 909 (2d Cir. 1975); see also Maula, 972 F.2d at 29
28 (“Inferring consent from counsel’s failure to object in this
29 case is not only consistent with the requirements of the
30 double jeopardy clause; it also tracks the general principle
31 applied in other areas of trial practice, when failure to
32 object to a ruling, which at the time it is made or proposed
33 could readily be changed, will bar future attempts to review
34 that ruling.”). Here, Bright’s counsel expressly informed
35 the court that he had no objection to the mistrial. The
36 district court asked, “I believe that I’m led to only one
37 conclusion here, and that is the need to declare a mistrial
38 in this case. Does any party see it any differently.”
39 Avraham Moskowitz--Bright’s original counsel--replied, “No
40 your honor.”
41
42 Given Bright’s consent to the mistrial, double jeopardy
43 could not attach unless the prosecution intentionally
44 provoked the mistrial. Oregon v. Kennedy, 456 U.S. 667, 673
45 (1982); United States v. Millan, 17 F.3d 14, 18 (2d Cir.
46 1993). This constitutes a “narrow” exception to the general
47 rule that a defendant’s consent to a mistrial lifts the
3
1 double jeopardy bar. Kennedy, 456 U.S. at 673; Millan, 17
2 F.3d at 18. For this exception to apply the prosecution
3 must intend to provoke a mistrial “so as to afford the
4 prosecution a more favorable opportunity to convict the
5 defendant.” United States v. Dinitz, 424 U.S. 600, 611
6 (1976). Mere bad faith, harassment, or gross negligence by
7 a prosecutor do not similarly override a defendant’s
8 consent. Id.; Huang, 960 F.2d at 1133 (“The applicability
9 of this exception turns squarely on the judge’s or
10 prosecutor’s intent.”).
11
12 Bright argues that any consent he gave was provoked by
13 the prosecution, which desired to force a mistrial. There
14 is insufficient evidence to support this allegation.
15
16 We accept a district court’s finding that the
17 prosecution did not intentionally act to provoke a mistrial
18 unless such a finding was “clearly erroneous.” Millan, 17
19 F.3d at 18. The district court here did not explicitly
20 discuss the defendant’s argument that the prosecution forced
21 a mistrial to improve its chances in a second trial, however
22 it implicitly found that the prosecution did not do so. The
23 district court’s opinion lays out the proper legal standard;
24 it quotes Maula, 972 F.2d at 29, for the proposition that if
25 the defendant consents to the mistrial, double jeopardy does
26 not bar a second prosecution “unless the government or the
27 court acts in a manner intended to provoke a defendant to
28 move for a mistrial.” Id. Given that it was aware of the
29 proper legal standard and the defendant’s argument that the
30 prosecution provoked the mistrial, we infer that the
31 district court found that the prosecution did not goad the
32 defendant into consenting to a mistrial.
33
34 The record supports the district court’s finding that
35 the prosecution did not intentionally provoke a mistrial.
36 The prosecution’s initial position was that the trial could
37 go forward and that the conflict was theoretical, not
38 actual. The prosecution did not advocate for a mistrial and
39 believed any conflict that existed could be waived. The
40 prosecution offered an alternative solution that might have
41 allowed the first trial to proceed (allowing an unconflicted
42 attorney to cross-examine a witness)--an expedient that the
43 court rejected. Furthermore, none of the alleged flaws in
44 the prosecution’s case that the defendant argues motivated
45 the prosecution to prompt the mistrial would be remedied by
46 a second trial. The prosecution’s decision to raise the
47 potential conflict is easily accounted for by a desire to
4
1 avoid a successful appeal by Bright on the grounds that his
2 conflicted counsel was unable to vigorously attack a key
3 government witness. See generally Wheat v. United States,
4 486 U.S. 153, 159-62 (1988) (exploring when possibly
5 conflicted attorneys no longer constitute effective
6 counsel).
7
8 Since Bright consented to the mistrial and the
9 prosecution did not intentionally provoke a mistrial, the
10 district court’s order denying defendant’s motion to dismiss
11 is upheld.
12
13
14 FOR THE COURT:
15 CATHERINE O’HAGAN WOLFE, CLERK
16 By:
17
18
19 ___________________________
5