United States v. 2006-04-17 | 04-10571 | USA VELLIOT | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-10571
Plaintiff-Appellee, D.C. No.
v.  CR-03-00244-SOM
BASHO ELLIOT, a.k.a. Bosch Elliot, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
Argued and Submitted
November 21, 2005—Honolulu, Hawaii
Filed April 18, 2006
Before: Myron H. Bright,* M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
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COUNSEL
Joseph T. Vodnoy (argued) and Joseph F. Walsh, Los Ange-
les, California, for the defendant-appellant.
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Edward H. Kubo, Jr., U.S. Attorney, and Beverly Wee
Sameshima, Assistant U.S. Attorney (argued), Honolulu,
Hawaii, for the plaintiff-appellee.
OPINION
CLIFTON, Circuit Judge:
Defendant Basho Elliot is charged with cocaine offenses.
At jury trial, during cross-examination of a defense witness,
an apparent conflict of interest arose involving Elliot’s lead
counsel, who appeared to have previously represented one of
the defendant’s key witnesses in connection with relevant
matters. Elliot and his counsel refused to acknowledge
whether or not a conflict existed and generally declined to
assist the court in its effort to untangle the surprising and
unusual situation. At the same time, Elliot insisted upon con-
tinuing with the same lawyer and objected to the ordering of
a mistrial, while refusing to waive his right to conflict-free
representation. After thorough consideration, the district court
concluded that the performance of Elliot’s counsel was hin-
dered by conflict, and that, if Elliot was convicted, this con-
flict would make reversal on appeal almost certain. Over
Elliot’s objection, the district court ordered a mistrial based
on manifest necessity. Elliot now contends there was no con-
flict of interest, and he moved to dismiss, arguing that the
Double Jeopardy Clause bars his further prosecution because
there was no manifest necessity justifying the mistrial. We
disagree and affirm the district court’s denial of Elliot’s
motion to dismiss.
I. Background
In a Federal Express hub in California on May 1, 2003, a
narcotics interdiction task force identified a suspicious pack-
age which, after a search warrant was obtained, was found to
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contain two kilograms (approximately four and one-half
pounds) of cocaine. A controlled delivery of the package was
arranged. A few days later, an undercover police officer deliv-
ered the package to the address on the parcel, which was the
home of John Meston in Lahaina, Maui, Hawaii. After receiv-
ing the package, Meston then delivered it to Elliot at Elliot’s
home, also in Lahaina. Shortly thereafter, the police arrested
them both. Elliott was indicted and put on trial on two counts
alleging violation of 21 U.S.C. §§ 841(a)(1) and 846: one
count of conspiracy to distribute and possess with intent to
distribute 500 grams or more of cocaine, and one count of
attempted possession with intent to distribute 500 grams or
more of cocaine.
At Elliot’s trial Meston testified as a government witness
that Elliot gave him $2,000 to receive the package, as Elliot
had done on prior occasions. During the defense case, Sergio
Hevia was called as a witness by Elliot to contradict Meston’s
testimony. In response to an evidentiary objection early in
Hevia’s testimony, Elliot’s lead counsel, Richard Gordon,
explained to the district court that he expected Hevia to testify
that Meston had himself called Hevia and asked him to mail
the package containing the cocaine to Hawaii. The court
became concerned that Hevia might be incriminating himself
and asked Gordon whether Hevia had an attorney. Gordon
replied, in what turned out to be a less than forthcoming fash-
ion, “[n]ot here, no, Your Honor.” The district court then
informed Hevia of his Fifth Amendment rights and his right
to counsel, but Hevia waived his rights, saying he did not
want to speak to an attorney. Hevia proceeded to testify that
Meston called him and asked Hevia to pick up a box from a
man named Randy and send it via Federal Express. Hevia fur-
ther testified that he called Meston a few weeks after mailing
the package but that Meston sounded strange, telling Hevia
that something had happened and not to call anymore.
On cross-examination, Hevia was asked if he ever learned
what was in the package. He responded that he found out
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through attorney Gordon. He testified that a few months after
his strange phone call with Meston, he contacted Gordon out
of concern over Meston’s behavior. He also explained that
Gordon had been his attorney in connection with some prior
traffic violations.
A discussion then ensued out of the presence of Hevia and
the jury. The district court, previously unaware of any
attorney-client relationship between Hevia and Gordon, asked
Gordon to explain how he had come to represent Elliot in a
matter about which he had previously obtained confidential
information from and given legal advice to Hevia. Gordon
refused to answer the court’s questions about his relationship
with Hevia. “I don’t think I can answer any of that, Your
Honor. . . . I think I have issues of confidentiality, and I can’t
— can’t go into that at all.” On inquiry by the district court
concerning Gordon’s apparent simultaneous representation of
Elliot and Hevia in the same matter, Gordon admitted that he
did not have a written conflict waiver from either Elliot or
Hevia.
The court expressed concern that in waiving his rights,
Hevia might have been influenced by Gordon’s presence,
thinking that he had his own counsel present. The value of
Hevia’s testimony to Gordon was to indicate that Meston, not
Elliot, was the organizer of the drug delivery. Since in his
capacity as Elliot’s defense counsel Gordon would be encour-
aging Hevia to make self-incriminating statements, the court
indicated that it had become “very concerned” and was
inclined to appoint counsel for Hevia.
Hevia returned and the court questioned him about his rela-
tionship with Gordon. Hevia testified that he sought legal
advice about the parcel at issue in this case when he called
Gordon about Meston. Upon hearing this, the court appointed
counsel for Hevia.
After consulting with his new attorney, Hevia invoked his
Fifth Amendment rights and declined to testify further, which
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prevented the government from finishing its cross-
examination. The court then proposed that Hevia’s testimony
be stricken due to the lack of cross-examination. Gordon
objected on behalf of Elliot, noting that “Mr. Hevia’s testi-
mony is relevant and tends to exonerate the defendant.” Gor-
don was unresponsive to the court’s inquiries about the basis
of his objection or why the court should ignore the fact that
the government had not had its chance to cross-examine
Hevia. The court called the jury back into the courtroom and
struck Hevia’s testimony, instructing the jury not to consider
it.
At that point, the trial was about to be recessed for four
days for a break that had already been planned. Before pro-
ceedings ended on the day Hevia’s testimony was stricken,
Gordon indicated that he would be moving on behalf of Elliot
for a mistrial but would research the matter further during the
interim. Ultimately, Elliot did not file such a motion. When
Elliot opted not to seek a mistrial, the government sent a letter
to the court urging it to declare a mistrial sua sponte. On the
day before the trial was set to resume, the court faxed a letter
to both attorneys posing a series of questions relating to Gor-
don’s conflict of interest, the effect of striking Hevia’s testi-
mony, and the possibility of a mistrial.1 The government
responded to these inquiries, but Gordon did not.
At a conference on the day the trial was to resume, Elliot
objected, through his attorney Gordon, to declaration of a
mistrial. In sum, Elliot maintained that he wished to continue
the trial with Gordon as his counsel, that he was not waiving
any of his rights (including the right to conflict-free counsel),
1The questions asked in part: “Is a mistrial warranted given the particu-
lar circumstances before us . . . In the first place, here we have a defense
witness, not, as in [government’s counsel’s] cases, a government witness
or someone whose guilt might exonerate the defendant. In the second
place, we have a witness whose testimony has been stricken. Please come
to tomorrow’s proceeding prepared to discuss whether these circumstances
affect the advisability of a mistrial.”
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and that he was not taking a position as to whether or not Gor-
don had a conflict of interest. The court extensively ques-
tioned Gordon and Elliot regarding the conflict. Gordon stated
that Elliot was “not waiving anything” and that he was “re-
serving all his rights.” The court asked specifically whether
Elliot was waiving any conflict of interest that Gordon may
have created, to which Gordon replied, “Mr. Elliot is specifi-
cally not waiving anything.”
The court repeatedly inquired as to Elliot’s position on
whether or not Gordon had a conflict of interest, but Gordon
refused to answer the question. The court asked if a potential
conflict of interest could justify a mistrial or whether an actual
conflict was required, and Elliot refused to take a position on
that question, either. The court pointedly asked how Elliot
wanted to go forward with the trial if he insisted on exercising
his right to conflict-free counsel. Again, Gordon failed to
explain his position, which rights Elliot was reserving, and
whether Gordon had a conflict. Ultimately, Elliot took no
position on whether a conflict existed and what effect, if any,
striking Hevia’s testimony had on declaring a mistrial.
The court tried to clarify Gordon’s position, stating “So you
are not admitting nor are you denying that you are in a
conflict-of-interest position,” to which Gordon replied, “I’m
not taking a position; that’s correct.” The court then expressed
concern that Gordon, for his client, “want[ed] [to have his]
cake and eat it too.” The court continued:
You want to go forward with the trial. If, in fact, Mr.
Elliot is convicted, then Mr. Elliot will then declare
that you were in a conflict of interest and take an
appeal. This is a waste of the court’s time, a waste
of valuable jurors’ time, and I really feel like there’s
just a ton of games-playing right now.
The court ultimately concluded that there was manifest
necessity for a mistrial, orally declared a mistrial, and dis-
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charged the jury. Soon thereafter, the court filed a written
order which explained its reasons for declaring a mistrial. The
order stated that the court found a manifest necessity to
declare a mistrial in order to (1) ensure that Elliot, who had
not waived his objection to any conflict of interest, would be
represented by conflict-free counsel, (2) avoid the undermin-
ing of public confidence in the integrity of the legal system,
and (3) avoid a waste of the resources of the court, the jurors,
and the parties. It observed that Gordon’s obligation to defend
Elliot was compromised not only by the conflict presented by
his prior representation of Hevia but also by his interest in
protecting himself against charges of unethical conduct. The
court expressly noted that Gordon’s refusal to respond to the
court’s inquiries or to take clear positions may have been pri-
marily motivated by a desire to protect himself, to his client’s
detriment. The order concluded that if the trial proceeded and
Elliot was found guilty, he would appeal on conflict-of-
interest grounds and a retrial would almost certainly be
ordered. The order also noted the court’s “overall concern”
about the defense case in chief, observing that the testimony
of the three allegedly percipient witnesses offered by Defen-
dant was “utterly implausible.” If the trial continued, it is
apparent that the district court expected it to result in a con-
viction, especially after the striking of Hevia’s testimony.
Gordon thereafter voluntarily withdrew as counsel and
Elliot hired a new attorney. A new trial date was set, and
Elliot filed a motion to dismiss on double jeopardy grounds.
The district court denied the motion to dismiss, concluding
that Elliot’s arguments had been waived and that there was
manifest necessity for declaring a mistrial at Elliot’s first trial.
Elliot appealed.
II. Discussion
Denial of a defendant’s pretrial motion to dismiss an indict-
ment on double jeopardy grounds is immediately appealable
as a collateral order under 28 U.S.C. § 1291. See Richardson
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v. United States, 468 U.S. 317, 321 (1984) (“Obviously, [this]
aspec[t] of the guarantee’s protections would be lost if the
accused were forced to ‘run the gauntlet’ a second time before
an appeal could be taken. . . . [I]f a criminal defendant is to
avoid exposure to double jeopardy and thereby enjoy the full
protection of the Clause, his double jeopardy challenge to the
indictment must be reviewable before that subsequent expo-
sure occurs.”) (citing Abney v. United States, 431 U.S. 651,
662 (1977)); see also United States v. Hickey, 367 F.3d 888,
891 (9th Cir. 2004) (reiterating the court’s interlocutory
appellate jurisdiction over colorable double jeopardy claims).
A. Double jeopardy
[1] The Double Jeopardy Clause of the Fifth Amendment
protects a defendant’s right not to be placed in jeopardy twice
for the same offense. Arizona v. Washington, 434 U.S. 497,
503 (1978). In a jury trial, jeopardy attaches when the jury is
empaneled and sworn. See Crest v. Bretz, 437 U.S. 28, 35
(1978). A criminal defendant has “the right to have the jury
first empaneled to try [him] reach a verdict.” United States v.
Bonas, 344 F.3d 945, 947-48 (9th Cir. 2003) (citing United
States v. Bates, 917 F.2d 388, 392 (9th Cir. 1990)). A jury had
already been empaneled and sworn in Elliot’s first trial, but
that does not mean that another jury can never be empaneled
for a retrial. The defendant’s right must be subordinate, in
some instances, to “the public’s interest in fair trials designed
to end in just judgments.” United States v. Jorn, 400 U.S. 470,
480 (1971); see Thomas v. Municipal Court of the Antelope
Valley J.D., 878 F.2d 285, 287 (9th Cir. 1989) (“Balanced
against the defendant’s right, however, is the right of society
to be protected against those guilty of crimes by enabling
society to retry the accused under certain circumstances.”).
[2] When, as here, a mistrial is ordered over a defendant’s
objection, retrial is permitted only if there was a “manifest
necessity” for a mistrial. Washington, 434 U.S. at 505. A
reviewing court must determine whether such a manifest
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necessity existed at the time a mistrial was declared by the
district court. In so doing, we should consider that “[t]he
words ‘manifest necessity’ . . . do not describe a standard that
can be applied mechanically or without attention to the partic-
ular problem confronting the trial judge.” Thomas, 878 F.2d
at 287 (internal quotations omitted). Rather than a strict stan-
dard, the Supreme Court has described a general approach to
be taken by trial judges considering a mistrial. “If an error
would make reversal on appeal a certainty, it would not serve
‘the ends of public justice’ to require that the government pro-
ceed with its proof . . . .” Illinois v. Somerville, 410 U.S. 458,
464 (1973).
B. The district court’s approach
We have also been directed to consider the manner in
which the district court made its decision. “The Supreme
Court and appellate courts have relied on four indicators in
determining whether the trial court abused its discretion. Has
the trial judge (1) heard the opinions of the parties about the
propriety of the mistrial, (2) considered the alternatives to a
mistrial and chosen the alternative least harmful to a defen-
dant’s rights, (3) acted deliberately instead of abruptly, and
(4) properly determined that the defendant would benefit from
the declaration of mistrial?” Bates, 917 F.2d at 395-96. If a
district court engages in this type of effort, it is much more
likely to have exercised sound discretion in concluding that
manifest necessity for a mistrial existed. See id. at 396.
[3] We start with the approach taken by the district court,
because in this case it weighs very heavily in favor of the
court’s determination. The court proceeded deliberately and
made every effort to draw out the views of the parties, partic-
ularly the defendant, on the situation. Elliot now argues on
appeal that there was no conflict of interest, at least not after
Hevia’s testimony was stricken, and that a reversal of any
conviction on appeal was far from a certainty. We do not
agree and will deal with those arguments below, but it cannot
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be overlooked that Elliot did not take those positions at the
time, let alone argue for them.
At that point in time it appeared to the district court that
Elliot’s defense was in disarray, with the testimony of his
main witness stricken and his other key witnesses offering
testimony which appeared “utterly implausible” to the court.
It is not surprising that the court came to conclude that the
defense was deliberately covering the risk of an adverse ver-
dict by trying to set up an issue for appeal, an approach which
motivated Elliot and his attorney to be unresponsive and
unhelpful in dealing with the situation. Nonetheless, the court
continued to invite comments and suggestions from Elliot and
Gordon, to no avail.
[4] Facing a confusing situation, the court received no help
from Elliot and his attorney. If Elliot did not like how the situ-
ation was resolved, he must accept responsibility for failing
to respond to the court’s inquiries when he had the opportu-
nity. The district court’s careful and deliberate approach to the
problem was laudable and supports its conclusion.
C. Conflict of interest and certainty of reversal
[5] The Sixth Amendment “guarantees each criminal defen-
dant the right to assistance of counsel ‘unhindered by a con-
flict of interests.’ ” Thomas, 878 F.2d at 288 (quoting United
States v. Wheat, 813 F.2d 1399, 1402 (9th Cir. 1987), aff’d on
other grounds, 486 U.S. 153 (1987)). A conflict of interest
can arise in cases of simultaneous or successive representa-
tion. Id. at 288. Typically, in order to obtain a reversal of con-
viction a “[d]efendant must show ‘that an actual conflict of
interest adversely affected his lawyer’s performance,’ ”
United States v. Crespo de Llano, 830 F.2d 1532, 1540 (9th
Cir. 1987) (citing Cuyler v. Sullivan, 446 U.S. 335, 348
(1980)).
[6] During cross-examination, Hevia testified that he had
sought and received Gordon’s legal advice regarding the
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package at issue in this case. At this point it became clear to
the district court that there was, at a minimum, a potential
conflict of interest arising from Gordon’s successive represen-
tation of two clients in the same matter. Hawaii Rule of Pro-
fessional Conduct 1.9(a) forbids a lawyer who has represented
one client in a given matter from representing another client
“in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the
former client unless the former client consents after consulta-
tion.” Assuming Hevia’s testimony to be true, Hevia sent the
package containing cocaine. Elliot ultimately received it. The
best defense available to each of them would be that they did
not have knowledge of the package’s contents, a defense that
would be buttressed by placing the blame on the other. In that
way, their interests are clearly adverse. Gordon did not obtain
a waiver of this conflict from either Hevia or Elliot.
[7] Even if their interests were not adverse to each other,
Gordon’s representation of the two clients represented a
potential conflict of interest under Hawaii Rule of Profes-
sional Conduct 1.7(b), which states that “[a] lawyer shall not
represent a client if the representation of that client may be
materially limited by the lawyer’s responsibilities to another
client or to a third person . . . unless the client consents after
consultation.” To represent Elliot adequately, Gordon needed
to interview, aggressively examine, and possibly place blame
on Hevia, all of which clashed with his attorney-client rela-
tionship with Hevia. As such, Gordon’s representation of
Elliot was arguably limited by his former representation of
Hevia in the same matter.
[8] The striking of Hevia’s testimony was clearly prejudi-
cial to Elliot. The loss of Hevia’s testimony prevented the jury
from considering evidence that contradicted the government’s
star witness, Meston. Hevia formed the backbone of Elliot’s
defense, and his absence greatly diminished whatever pros-
pects there were for an acquittal. Clients should expect their
lawyer to “use every skill, expend every energy, and tap every
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legitimate resource in the exercise of independent profes-
sional judgment on behalf of the client and in undertaking
representation on the client’s behalf.” Thomas, 878 F.2d at
289. Had Elliot been represented by conflict-free counsel, his
attorney could have spent considerable efforts ensuring that
Hevia testified. A diligent attorney would have done all in his
power to keep Hevia on the stand.
[9] But Gordon was not in a position to do that. By that
time, he had his own problem, in the form of his apparent vio-
lations of the rules of professional conduct, and that repre-
sented still another conflict with his obligation to Elliot.
Perhaps concerned about concealing his own misconduct,
Gordon did not diligently attempt to prevent the court from
striking Hevia’s testimony. He objected but refused to address
the court’s concerns when stating his objection. The Supreme
Court has stated that the attorney is in the best position to
determine when a conflict exists and so “defense attorneys
have the obligation, upon discovering a conflict of interests,
to advise the court at once of the problem.” Holloway v.
Arkansas, 435 U.S. 475, 485-86 (1978). Gordon did not do so.
To the contrary, by refusing to acknowledge the problem or
to respond to the district court’s efforts to address the situa-
tion, Gordon effectively provided Elliot with another ground
for appeal, since it is hard to avoid the inference that Gordon
was motivated in substantial part by his own self-interest in
protecting himself, in conflict with Elliot’s best interests.
[10] Under these circumstances, the district court correctly
determined that Gordon had one or more conflicts of interest
that prevented him from properly representing Elliot. “Few
aspects of our criminal justice system are more vital to the
assurance of fairness than the right to be defended by counsel,
and this means counsel not burdened by a conflict of interest.”
United States v. Henke, 222 F.3d 633, 638 (9th Cir. 2000) (per
curiam). The district court reasonably concluded that such a
conflict, if raised by Elliot on appeal, would have made rever-
sal of any conviction almost certain.
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D. Manifest necessity for a mistrial
Rather than hastily declaring a mistrial, the district court
made every effort to resolve the conflict and continue the
trial. The court asked Elliot numerous times if he wanted to
waive any conflict of interest and continue with Gordon as
counsel. Elliot responded, through Gordon, that he was “not
waiving anything” and reserving “all” of his rights, even as he
insisted upon keeping Gordon as his lawyer. The district court
spent considerable time explaining to Elliot why it believed
there was at least a potential conflict of interest. Even after the
warnings of the court, though, Elliot would take no position
on whether a conflict existed and expressly would not waive
his right to contest any conflict on appeal.
We agree with the assessment of the district court that
Elliot was trying to have it both ways. If the trial continued
and Elliot was found guilty, he would have had a built-in
issue for appeal, namely, that he had been denied his right to
conflict-free representation. See Thomas, 878 F.2d at 290.
Conversely, if a mistrial was declared he would, as he does
now, claim that there was no conflict that necessitated a mis-
trial. This court has warned that “[w]e should be aware of the
trial court’s prospects of being ‘whip-sawed’ by assertions of
error no matter which way it rules.” Id. This was exactly the
prospect facing the district court in this case.
[11] The district court did not err in determining that there
was manifest necessity for the mistrial, given Gordon’s con-
flict of interest and Elliot’s attempt to have it both ways. See
United States v. Sammaripa, 55 F.3d 433, 435 (9th Cir. 1995)
(“[W]hen the breakdown between attorney and client
becomes apparent after jeopardy attaches, there is manifest
necessity to declare a mistrial.”) (citing Thomas, 878 F.2d at
288 n. 2).
We have held that manifest necessity existed for a mistrial
under similar circumstances. In Thomas, an attorney defended
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a husband charged with criminal assault and battery of his
wife. 878 F.2d at 286. The attorney had previously repre-
sented the wife in her divorce from a former husband. Id. One
of the husband’s primary defenses was that the wife fabri-
cated the assault charges in retaliation for allegations by the
husband that the wife was a bigamist, having married him
before her divorce from her first husband became final. In a
discussion in chambers, the lawyer admitted that he had repre-
sented the wife in the prior divorce. The attorney denied the
existence of a conflict and offered to abandon the bigamy
motive. Because the husband refused to waive the conflict and
would not agree to a mistrial, the trial court, as in the present
case, declared a mistrial sua sponte. At retrial, the husband
claimed that double jeopardy barred his further prosecution
because there was no manifest necessity for a mistrial. We
held that the lawyer had “divided loyalties which could
adversely affect his ability diligently to defend” the husband,
and “[h]ad the trial court simply proceeded with the trial,
reversible error would have been built in because . . . [the hus-
band] . . . did not have effective, conflict-free representation.”
Id. at 290. Due to the evident conflict of interest resulting
from the husband’s counsel’s inability to adequately defend
him (having lost the bigamy motive), and the husband’s
refusal to waive the conflict or agree to a mistrial, we con-
cluded that the district court did not err in declaring a mistrial.
Id.
[12] In the present case the district court was placed in the
same position by Elliot and Gordon. Faced with conflicts that
had hindered Gordon’s ability to adequately represent Elliot,
and with Elliot’s refusal to waive the conflict while insisting
on continuing with Gordon as his lawyer, the district court
concluded appropriately that there was manifest necessity for
a mistrial.
III. Conclusion
[13] Faced with an evident conflict of interest and a defen-
dant apparently attempting to manufacture an issue for appeal,
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the district court did not err in finding manifest necessity for
a mistrial. Elliot insisted upon continuing with Gordon as his
lawyer but would not agree to a waiver of the conflicts faced
by Gordon. The district court took great care in addressing the
situation. It was a “scrupulous exercise of judicial discretion”
which led it “to the conclusion that the ends of public justice
would not be served by a continuation of the proceedings.”
Jorn, 400 U.S. at 485. In order to preserve Elliot’s right to
conflict-free representation, to save valuable time and
resources of the court and the jurors, and to serve the ends of
public justice, the district court was justified in declaring a
mistrial. Elliot’s motion to dismiss was properly denied, and
he may be tried on the pending charges.
AFFIRMED.
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