Appeal from an order denying defendants' motions to dismiss indictment on the ground that retrial is barred by the double jeopardy clause, entered in the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge). Affirmed.
Lumbard, Van Graafeiland, and Altimari, Circuit Judges.
Defendants-appellants Claddis Arrington, Brooks Gregory Davis, Mary Ferguson Davis, and Wayne Davis appeal from an order entered in the United States District Court for the Southern District of New York (Griesa, J.), which denied their motions under Fed. R. Crim. P. 12(b)(1) to dismiss criminal charges against them. Defendants were charged with various offenses arising from participation in a conspiracy to distribute narcotics. Soon after the commencement of trial, the government informed the court of an alleged plot to silence witnesses, and the possible involvement of counsel for Brooks Davis in that plot. On April 28, 1988, the court declared a mistrial as to Arrington and Wayne Davis. On May 2, 1988, mistrials were declared as to Brooks and Mary Davis.
After the government announced that it intended to retry all four defendants, the defendants moved to dismiss the charges. The defendants argued that retrial is barred by the double jeopardy clause because there was no "manifest necessity" to declare the mistrials. Defendants renew this argument on appeal. For the reasons stated below, we affirm the decision of the district court as to all defendants.
In a superseding indictment filed March 26, 1988, Arrington, Brooks Davis, Mary Davis, and Wayne Davis were charged, inter alia, with conspiring to possess and distribute narcotics in violation of 18 U.S.C. § 841. The government alleged that defendants were part of a large-scale narcotics distribution organization, in which Brooks Davis was king-pin, Wayne Davis was lieutenant, Arrington was a dealer, and Mary Davis supplied customers.
Among the witnesses the government intended to call to testify at trial were Keith Greene and Henri Mitchell. Both Greene and Mitchell had pleaded guilty to narcotics offenses and entered into cooperation agreements with the government. Prior to trial, however, Greene and Mitchell each gave sworn statements to defense counsel recanting previous sworn statements they had given to the government. The government also intended to call Isaac Diggins, an informant who had secretly recorded conversations with Arrington and Brooks Davis. Two days before trial was to begin, however, Diggins was shot.
On April 10, 1988, the day after the shooting, Aaron Harper confessed to his role in the attempted murder of Diggins. Harper told the government that Wayne Davis had called him a few weeks earlier and asked for his help in locating and murdering potential witnesses in the upcoming trial. Harper further related that on April 9, 1988, defendant Arrington and another unidentified man ordered Harper, upon threat of death to himself or his family, to arrange for Diggins to be at a specified location that night so that he could be killed. Harper complied. On April 28, Harper entered guilty pleas to charges arising from his involvement in both the Diggins shooting and drug transactions with Wayne Davis.
On April 11, 1988, the first day of jury selection, the government made various motions based on the information furnished to it by Harper, whose identity was kept confidential. The court granted motions for an anonymous jury and to remand Arrington, Mary Davis, and Wayne Davis, who had been released on bail, but denied a motion for a continuance.
After the defendants were returned to custody, Harper was inadvertently placed in the same holding cell in the Metropolitan Correctional Center ("MCC") as Arrington, Brooks Davis, and Wayne Davis. A conversation ensued between the men, at the end of which Brooks Davis stated that he would send his lawyer to see Harper. Harper testified that Brooks Davis told him that the purpose of the lawyer's visit was for Harper to sign a paper stating that he "ain't going to testify." The next morning, Robert Simels, who was Brooks Davis' counsel, visited Harper alone at the MCC. What occurred at this meeting is not clear.
On April 12, 1988, Simels presented the court with an affidavit signed by Harper, whom Simels identified as the government's confidential informant. The affidavit stated that the government had pressured Harper to "lie on people," and it presented an explanation of the Diggins shooting that differed from the government's account. It further stated that Harper did not take part in, or have knowledge of, any illegal activities involving Brooks Davis, Wayne Davis, or Mary Davis. Simels later testified that he met alone with Harper at the MCC, and Harper freely related a version of events that contradicted the version offered by the government. Simels testified that he prepared the affidavit from his notes of the meeting, and then made arrangements for Michael Gavenchak, an associate of counsel for Wayne Davis, to bring the affidavit to Harper to sign. In the meantime, the trial went forward with Simels assuming the role of lead defense counsel.
After the sixth day of trial, the government filed a letter with the court which set forth new information regarding the circumstances of Harper's recantation. The government alleged that during their MCC meeting, Simels warned Harper that he should not testify against his "friends" from the "street while [his] family [was] out there." The government further alleged that Harper signed the paper presented to him by Gavenchak without reading it. At this time, the government did not move for a mistrial, but did raise the issue of whether Simels could ethically continue as Brooks Davis' trial counsel since Simels might now become a witness at trial.
The district court held a series of conferences with counsel for all parties to consider whether disqualifications of counsel and/or declarations of mistrials were required. During these conferences, the government announced its intention to call Harper to testify about his drug activities with the defendants, the Diggins shooting, and the Simels threat. The defendants indicated their desire to defend against this evidence. According to the district court, the next step was "to determine whether Harper would really testify in a way to implicate and accuse Mr. Simels," because if Harper would not so testify then Simels would not become a witness in the case, and disqualification would be unnecessary. To this end, a hearing was held outside the presence of the jury, solely to determine if Harper would testify at trial in a manner consistent with the government's proffer. Harper's testimony at this hearing was in substantial conformity with the government's accounts of the attempted murder of Diggins and the events at the MCC.
Following the hearing, counsel for Arrington and Wayne Davis reasserted their intention to call Simels to testify. The court found that Arrington and Wayne Davis were entitled to present Simels' testimony in their defense but that Simels could not appear as a witness before the same jury that observed him perform as lead defense counsel. The court declared mistrials as to Arrington and Wayne Davis. The court endeavored, however, to continue the trial with regard to Brooks and Mary Davis.
Over the next day and a half, the district court heard oral argument and received written submissions as to whether further mistrials could be avoided. To this end, Brooks and Mary Davis offered to waive cross-examination of Harper. Other suggestions, such as having an adjournment of the trial in order to allow the appointment of new counsel for Brooks Davis, were also put forth. The court found none of the suggested solutions to be workable. It characterized the proposed waivers as "foregoing the presentation of the most directly relevant evidence . . . contradicting Harper's version." Furthermore, the court found that Simels' testimony would "be of great assistance to Brooks Davis if it were true." Accordingly, the court disqualified Simels from continuing as counsel for Brooks Davis. Then, finding that it "would present hopeless confusion and difficulty in the minds of the jurors to have Mr. ...