United States Court of Appeals
For the First Circuit
No. 20-1073
UNITED STATES,
Appellee,
v.
RAYMOND ALEXANDER GARRAWAY,
Defendant, Appellant.
No. 20-1074
UNITED STATES,
Appellee,
v.
CORDWELL NATHANIEL BENNETT,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Lynch, Lipez, and Barron,
Circuit Judges.
José B. Vélez Goveo for appellants.
José B. Vélez Goveo, with whom Vélez & Vélez Law Office were
on brief, for appellant Raymond Alexander Garraway.
Jorge E. Rivera-Ortíz on brief for appellant Cordwell
Nathaniel Bennett.
Javier Alberto Sinha, with whom W. Stephen Muldrow, United
States Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, and Francisco A. Besosa-Martinez, Assistant United
States Attorney, were on brief, for appellee.
November 15, 2021
LYNCH, Circuit Judge. Raymond Alexander Garraway and
Cordwell Nathaniel Bennett, convicted at trial for possession with
intent to distribute marijuana, successfully moved for a mistrial
on the basis of improper arguments made by the prosecution at
closing. The government now seeks to retry them, and Garraway and
Bennett moved to dismiss, arguing that retrial would violate the
Double Jeopardy Clause. The district court denied the motion to
dismiss. United States v. Trapp, No. 16-159, 2019 WL 6974767, at
*1 (D.P.R. Dec. 18, 2019). Because the district court did not
abuse its discretion in finding that the prosecution did not
intentionally provoke a mistrial, we affirm.
I.
On March 1, 2016, a U.S. Coast Guard law enforcement
detachment aboard a Dutch naval ship came across an eighty-foot
fishing vessel while on routine patrol in the Caribbean. The Coast
Guard team captured video of the crew of the fishing vessel
jettisoning objects overboard.
The Coast Guard deployed two rigid-hulled inflatable
boats, one to intercept the fishing vessel and one towards the
debris. The boat dispatched in the direction of the jettisoned
debris recovered nineteen bales of suspected narcotics. Samples
from the bales were tested and found to be marijuana. In total,
the marijuana bales weighed 399.4 kilograms.
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The second team questioned the individuals aboard the
fishing vessel. The Coast Guard team took samples from the fishing
vessel which were tested using an Ion Scan 400B device, which
detects the presence of narcotics. No narcotics were detected.
The Coast Guard team found no contraband aboard the fishing vessel.
Two of the bales that had been recovered preliminarily tested
positive for marijuana, and the Coast Guard took the crew into
custody. On March 16, 2016, Garraway and Bennett, along with the
third man aboard the fishing vessel, Michael Anthony Trapp, were
indicted on two counts of possession with intent to distribute 100
kilograms or more of marijuana.
Their jury trial began on September 4, 2018. The
prosecution introduced into evidence the video taken by the Coast
Guard of objects being thrown out of the fishing vessel, testimony
of a Coast Guard officer that the marijuana bales were recovered
near the fishing vessel and that there were no other vessels in
the area, and testimony that rope was found on the fishing vessel
which appeared identical to the rope used to bind the bales of
marijuana. The defense theory was that the bales of marijuana
recovered by the Coast Guard had never been aboard their fishing
vessel. The defendants pointed to the Ion Scan results which
showed that marijuana was not detected aboard the fishing vessel,
as well as the fact that the bales of marijuana were found between
five and seven nautical miles from the fishing vessel. They also
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introduced testimony that the seas had been rough, and that they
were throwing garbage and debris, not bales of marijuana, off the
fishing vessel because it endangered them to have loose debris
rolling around the deck.
The prosecution and defense entered into several factual
stipulations concerning the chain of custody of the bales of
marijuana and the details of the Ion Scan testing and results.
The defense relied on these stipulations to establish the negative
Ion Scan results and where the bales of marijuana were found. The
stipulations contained no information about whether or how
wrapping the drugs would affect the accuracy of the Ion Scan
results, and no evidence to that effect was presented. During the
closing argument rebuttal, the prosecution argued to the jury that
the wrappings on the bales of marijuana prevented the Ion Scan
from detecting its presence on the fishing vessel. The jury
convicted.
The defendants moved for an acquittal and for a mistrial.
The district court denied the motion for acquittal. However, it
granted the motion for mistrial on the basis of the prosecution's
statements about the Ion Scan results being affected by the
wrapping on the marijuana. The district court found the statements
were not a permissible inference to argue from the evidence
introduced at trial. It found that the prosecution made the
statement deliberately, though not in bad faith, and that the court
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could not be confident, given the totality of the circumstances,
that the prosecution's argument did not affect the jury's decision
to convict. The court did note in a footnote that there was no
double jeopardy bar to retrial, finding that "there is no
indication that in making the statement in question, the prosecutor
had the intent to goad defendants into moving for a mistrial or to
harass them out of fear of acquittal due to insufficient evidence
in order to marshal a more favorable opportunity to convict the
defendants in a subsequent trial."
Nevertheless, when the prosecution began to retry the
defendants, the defendants filed a joint motion to dismiss for
violation of the Double Jeopardy Clause. They argued that the
prosecution deliberately made the improper statement at closing in
order to goad the defendants into moving for a mistrial, so that
the prosecution would have a better chance at convicting in a
subsequent trial.
The district court denied the motion, finding that the
prosecution did not intend to provoke a mistrial. In making its
decision, the district court also concluded that "this is not a
case where the evidence led a reasonable person to conclude that
acquittal was likely at the time of the objected comment, and that
misconduct had to be engaged in to prevent it."
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II.
The standard of review applicable to a motion to dismiss
on double jeopardy grounds following a mistrial is abuse of
discretion. United States v. Toribio-Lugo, 376 F.3d 33, 38 (1st
Cir. 2004). The district court's findings of fact are reviewed
for clear error, while conclusions of law are reviewed de novo.1
Id.
The Double Jeopardy Clause, U.S. Const. amend. V, cl. 2,
"protects not only against double punishment but also against being
'twice put to trial for the same offense.'" United States v. Suazo,
14 F.4th 70, 74 (1st Cir. 2021) (quoting Abney v. United States,
431 U.S. 651, 661 (1977)). Not all reprosecution is barred, and
mistrials are a common exception. See Toribio-Lugo, 376 F.3d at
38. Retrial is, however, barred after a mistrial where "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); see also United States
v. Gary, 74 F.3d 304, 315 (1st Cir. 1996), abrogated on other
grounds by Johnson v. United States, 576 U.S. 591 (2015).
Garraway and Bennett argue that the district court erred
in finding that the prosecution did not intend to provoke them to
1 Because the defendants were tried together, raise the
same issues, and make the same arguments in their briefs, we
address their arguments together. The third co-defendant, Michael
Anthony Trapp, is not involved in this appeal.
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move for a mistrial by making improper arguments at closing. They
contend that this intent can be inferred from what they
characterize as a pattern of overreaching with respect to the
stipulations by the government and a weak response to the
defendants' motion for mistrial, the timing of the improper
statement at a point when the defendants could no longer rebut it,
and what they consider the overall weakness of the government's
case. They also point out that the government now seeks to
introduce new expert testimony while also compelling the
defendants to enter into the same stipulations as in the first
trial, which they argue is evidence that the prosecution
intentionally threw the first case in order to make a stronger
case on retrial.
The defendants do not challenge the legal standard the
district court used to decide their motion; rather, they challenge
only the district court's finding that the prosecution did not
intend to provoke a mistrial. This finding is not clearly
erroneous.
The district court determined that, at the time of
closing argument, an acquittal was not likely. Though defendants
characterize the prosecution's case as "weak," the trial court's
determination is supported by the record. The prosecution
introduced video of the defendants throwing debris out of the
fishing vessel. The prosecution showed that the Coast Guard had
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recovered nineteen bales of marijuana from the water, and that
there were no other vessels in the vicinity. Perhaps most damning,
the prosecution introduced testimony that the rope used to bind
the bales was the same as rope found on the fishing vessel. The
defendants introduced evidence to try to neutralize the
prosecution's case, including offering an alternative explanation
for why the crew was jettisoning debris from the fishing vessel
and emphasizing the Ion Scan's negative findings. However, given
the substantial case mounted by the prosecution, the record
supports the district court's assessment of the likelihood of
acquittal.
In light of the district court's supportable finding
that acquittal was not likely, the defendants' arguments about the
timing of the statement also fail. Nothing about the timing of
the improper argument suggests that the district court's finding
was clearly erroneous and nothing in Kennedy supports a rule that
improper arguments made late in the trial are necessarily intended
to provoke a mistrial. See United States v. Jozwiak, 954 F.2d
458, 460 (7th Cir. 1992) ("Only a prosecutor who thinks the trial
going sour -- or who seeks to get just far enough into the trial
to preview the defense -- would want to precipitate a mistrial.").
The defendants' argument that the government has
benefitted from previewing their arguments at trial and
strengthening its own case on retrial ignores that the defendants
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benefit similarly from the declaration of a mistrial. See United
States v. Garske, 939 F.3d 321, 335 (1st Cir. 2019) (noting that
"the purported advantage works both ways . . . . [as] the
defendants have previewed the government's case and are now better
positioned to defend against it"). The government, which bears
the burden of proof, faces the risk at retrial that witnesses'
memories may dull or witnesses may become unavailable, in addition
to the need to expend limited resources to retry an entire case.
See United States v. Lun, 944 F.2d 642, 646 (9th Cir. 1991) ("'If
the defendant consents to a mistrial, the prosecutor must go to
the time, trouble, and expense of starting all over with the
criminal prosecution.' Witnesses may disappear or forget their
testimony after the long delay." (citation omitted) (quoting
Kennedy, 456 U.S. at 686 (Stevens, J., concurring))); see also
Jozwiak, 954 F.2d at 460 ("Trying one defendant twice means, for
a prosecutor with limited resources, letting some other defendant
go.").
The defendants also argue the prosecution "barely
objected" to their motion for a mistrial. Again, this is not so.
The trial court found that the government had made a "comprehensive
response." This too is supported by our review of the government's
response to the defendants' motion for mistrial and is not clearly
erroneous. Though the district court ultimately disagreed, the
government defended its statements at closing as reasonable
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inferences from the evidence it presented at trial and did not
make merely a pro forma response to the defendants' motion. After
overseeing the entire trial and considering the defendants' motion
for a mistrial and the prosecution's opposition, the district court
specifically found that the prosecutor believed he was arguing a
permissible inference from the evidence.
In all, the record supports the government's contention,
and the district court's finding, that the government did not
intentionally provoke a mistrial. The government presented a
strong case at trial. At the point before the prosecution made
its closing rebuttal argument, an acquittal was not likely. The
prosecution vigorously opposed the defendants' motion for a
mistrial. Any opportunity the prosecution will have to adjust its
case in response to what occurred at the first trial will also be
afforded to the defendants.
As the district court pointed out in denying the
defendants' double jeopardy motion, it "presided over the trial,"
affording it a better vantage point than ours to assess the intent
of the prosecution. Absent clear evidence from the record that
the district court's finding as to the intent to provoke a mistrial
is unsupported, we will not supplant its judgment with our own.
No such evidence exists here; rather, the record amply supports
the district court's decision.
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III.
The order of the district court is affirmed.
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