United States of America v. Christobel Gomez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 04-1765
___________
UNITED STATES OF AMERICA
v.
CHRISTOBEL GOMEZ,
Appellant
_____________
ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS,
DIVISION OF ST. CROIX
District Court Judge: The Honorable Raymond L. Finch
(D.C. No. 02-cr-00011)
___________
Argued December 17, 2004
BEFORE: SLOVITER, FUENTES and GREENBERG, Circuit Judges
(Filed: February 4, 2005)
______________________
OPINION OF THE COURT
_______________________
St. Clair Theodore (ARGUED)
Office of the United States Attorney

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1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820
ATTORNEY FOR APPELLEE
Joel H. Holt (ARGUED)
Law Offices of Joel H. Holt
2132 Company Street, Suite 2
Christiansted, St. Croix
USVI, 00820
ATTORNEY FOR APPELLANT
FUENTES, Circuit Judge.
Petitioner Christobel Gomez was charged with conspiracy, aiding and abetting and
possession with intent to distribute. After dismissing Gomez’s counsel for conflict of
interest, the District Court declared mistrial. Gomez appeals removal of his counsel and
the declaration of mistrial without prejudice. We deny the petition to review removal of
Gomez’s counsel because it is not a final order and affirm the declaration of mistrial
because it was supported by manifest necessity.
I.
As we write only for the parties, we present only the relevant facts. Gomez’s trial,
together with those of six other defendants, began on March 1, 2004. The problem in this
case began when, on March 5, 2004, the government raised the possibility of a conflict of
interest with respect to defense counsel, Darwin Carr, because Carr had represented one
of the government’s potential witnesses, former U.S. Marshal John Perrine, in a civil

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proceeding. During an in camera hearing, Carr stated that, because of his representation
of Perrine, he could not cross-examine Perrine and had confidential information about the
inner workings of the U.S. Marshal Service. In light of his exhaustive preparation for and
familiarity with Gomez’s case, Carr asked the judge if he could assist any substitute
counsel. The District Court found it impossible either for another attorney to quickly get
up to speed on Gomez’s case or for Carr to assist his replacement without triggering a
conflict. The District Court then declared mistrial.
On March 8, Gomez filed a motion to reconsider Carr’s disqualification. Both
Perrine and Gomez waived their counsel’s conflict of interest. The District Court denied
Gomez’s motion in a Memorandum Opinion on March 17, 2004, finding that Gomez
“could not conceivably have [waived his counsel’s conflict] knowingly, intelligently and
with full awareness of the likely consequences.” The court went on to note that
“[b]ecause [Carr] could not be aware of all the details of the case and the evidence to be
presented at this stage, counsel could not adequately advise [Gomez] concerning the risks
inherent in waiving any conflict of interest that should arise.” The District Court also
observed that Perrine had not waived his attorney-client privilege.
This appeal followed. At the time of briefing, Gomez’s motion to dismiss the new
proceedings against him had not yet been decided.
II.
We first address the appealability of the District Court’s Order removing Carr as

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Gomez’s counsel for conflict of interest. Generally, a defendant may appeal only from a
judgment of conviction and sentence. 28 U.S.C. § 1291 provides that federal courts of
appeal “have jurisdiction of appeals from all final decisions of the district courts.” Unless
it qualifies under the collateral order exception, a judgment is not final “until there has
been a decision by the District Court that ‘ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’” Van Cauwenberghe v. Biard, 486
U.S. 517, 521 (1988). In Flanagan v. United States, 465 U.S. 250, 265 (1984), the
Supreme Court held that a pretrial order disqualifying counsel was not a final order
because any prejudice to the defendant can be remedied after conviction and imposition
of a sentence. For the same reasons, the District Court’s Order removing Carr was not a
final judgment and we have no jurisdiction to consider the disqualification order on
appeal. Although the Order removing Carr is not directly appealable, we do address, in
connection with Gomez’s Double Jeopardy claim, whether the District Court had good
reason for declaring mistrial despite Gomez’s waiver of conflict. See infra Part IV.
III.
Gomez also appeals the District Court’s declaration of mistrial on Double Jeopardy
grounds. Again, a defendant normally may appeal only from a judgment of conviction
and sentence. However, Flanagan allows for a narrow exception: the collateral order rule.
465 U.S. at 265. Under that exception, an order may be appealed prior to conviction if it
conclusively determines the disputed question; resolves an important issue completely

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1Gomez need not wait until his pending motion to dismiss is denied. Because the
charges against him stand, accepting jurisdiction now rather than later is consistent with
the principle in Abney that a defendant’s Double Jeopardy claim should be reviewed
before a second exposure to risk, embarrassment, expense, and ordeal. Id. at 661-62.
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separate from the merits of the action; and it is effectively unreviewable on appeal from a
final judgment. Id. Among the few claims that may be heard prior to conviction under
the collateral order rule are Double Jeopardy claims. The rationale is that the very
constitutional interest at stake, i.e., the right not to be tried, would be lost if appeal were
delayed until completion of a second trial. See Abney v. United States, 431 U.S. 651
(1977). Because Gomez appeals the District Court’s Order of mistrial in order to
preserve his rights under the Double Jeaporady clause, we may exercise jurisdiction over
his appeal at this time.1
IV.
We now address the merits of Gomez’s claim that the District Court’s declaration
of mistrial was improper. We review the decision to declare mistrial for abuse of
discretion. Arizona v. Washington, 434 U.S. 497, 514 (1978); see also United States v.
Jorn, 400 U.S. 470, 483 (1971).
The Fifth Amendment provides that no person “shall...be subject for the same
offence to be twice put in jeopardy of life or limb.” However, in limited circumstances,
second trial after mistrial is justified. Second trial is permitted where a judge declares
mistrial out of “manifest necessity.” United States v. Perez, 9 Wheat. 579, 580 (1824).

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See also Arizona, 434 U.S. at 505; Downum v. United States, 372 U.S. 734, 736 (1963);
United States v. Sup. Ct. Of New Jersey, 483 F.2d 7, 13 (3d Cir. 1973). Application of
the manifest necessity standard involves mixed questions of law and fact and is subject to
plenary review. See United States v. Rivera, 384 F.3d 49, 56 (3d Cir. 2004); Sup. Ct. Of
New Jersey, 483 F.2d at 15.
In reviewing the trial court’s declaration of mistrial, we must look to (1) the
possibility of manipulation by the government; (2) the nature of the interest advanced by
mistrial, and; (3) the consideration and availability of alternatives to mistrial. Sup. Ct. Of
New Jersey, 483 F.2d at 14.
The “inherent danger” that the Government entered the trial of a case when it knew
or should have known it lacked sufficient evidence to convict is implicated not just when
the government moves for mistrial but also when a trial court declares mistrial sua sponte
as a result of a dilemma attributable to the government’s choice of conduct. See Rivera,
384 F.3d at 54. Gomez claims that “it is quite possible that the prosecutor’s motive [in
insisting on the possibility that Perrine was a possible witness] was to avoid the problems
with his case.”
But Gomez has not shown that the government’s interest in using Perrine as a witness
was a bad faith move intended to avoid acquittal. See United States v. Ziegele, 479 F.2d
773, 778 (3d Cir. 1973) (finding judge did not abuse his discretion in declaring mistrial
and refusing to infer misconduct where defendant presented “no evidence” that “trial

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judge discharged the jury in order to give the prosecution the advantage of a second
trial”). As there is no evidence of manipulation in this case, we next consider the District
Court’s reasons for declaring mistrial.
The District Court’s interest in protecting Gomez’s Sixth Amendment right to
effective counsel competed with Gomez’s right to have his trial completed by a particular
tribunal. See Wheat v. United States, 486 U.S. 153, 161 (1988) (“[T]rial courts
confronted with multiple representations face the prospect of being ‘whip-sawed’ by
assertions of error no matter which way they rule.”); United States v. Combs, 222 F.3d
353, 359-60 (7th Cir. 2000) (discussing District Court’s Catch 22). Because “trial
courts...have an independent duty to ensure that criminal defendants receive a trial that is
fair and does not contravene the Sixth Amendment,” waiver by Gomez and Perrine did
not cure the problem posed by Carr’s conflict. Wheat, 486 U.S. at 161. See also United
States v. Arlington, 867 F.2d 122, 129 (2d Cir. 1989) (finding manifest necessity for
mistrial despite waiver of conflict by defendant); Combs, 222 F.3d at 361 (same). The
District Court’s resolution of the tension between Gomez’s Fixth and Sixth Amendment
rights in this context is entitled to substantial deference. See Wheat, 486 U.S. at 162-63;
United States v. Voigt, 89 F.3d 1050, 1077 (3d Cir. 1996). We cannot say the court’s
assessment of Carr’s conflict of interest was unreasonable.
Even if the potential conflict of interest in Gomez’s case could have justified
mistrial, it does so only if no lesser remedy would have sufficed. United States v.

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McKoy, 591 F.2d 218, 222 (3d Cir. 1979). See also Love v. Morton, 112 F.3d 131, 137
(3d Cir. 1997). In his brief on appeal, Gomez suggests that the trial court could have
adopted any of a number of alternatives to mistrial.
First, he suggests that Carr could have continued as counsel until the government
in fact called Perrine as a witness. But the District Court clearly rejected Perrine’s
assessment of the relevance of his own knowledge and decided instead that there was
already a serious possibility that Perrine could be called on rebuttal if the government’s
investigation were attacked, which was the line defense counsel were pursuing at that
time. It did not have to wait until the potential conflict actualized. See Wheat, 486 U.S.
at 164.
Second, Gomez suggests that the court could have waited to recuse Carr, as Carr
himself requested at the time, until certain potentially dispositive motions pertaining to an
alleged Brady violation were resolved. As Gomez has not shown that there was a Brady
violation, let alone that a motion for dismissal based on a Brady violation would have
resulted in dismissal with prejudice, he has not presented a viable alternative to mistrial.
Gomez’s third proposed alternative is that Carr could have continued as Gomez’s
counsel and the court could have appointed other counsel for the limited purpose of cross-
examining Perrine if he were called as a witness by the government. However, the
District Court may have concluded that the issue of law enforcement misconduct had
become so central to Gomez’s case that information which Carr admitted he had obtained

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from Perrine concerning “the inner working of the U.S. Marshal Service” might taint
other aspects of Carr’s representation of Gomez.
Gomez’s final proposed alternative is that he should have been allowed to proceed
on a pro se basis, perhaps with the assistance of Carr. This was clearly not a viable option
since Carr himself insisted that the case was so complex that even another attorney could
not be brought up to speed quickly. After a careful and thorough examination of the
record, we conclude that the District Court had no viable alternative to mistrial
In order to ensure that it declares mistrial only where no alternatives are available,
a trial court must solicit and contemplate alternatives before it declares mistrial. Fed. R.
Crim. P. Rule 26.3 requires that the court give “each defendant and the government an
opportunity to comment on the propriety of the order, to state whether that party consents
or objects, and to suggest alternatives.” Accordingly, we must also consider whether the
trial “showed sufficient caution before its declaration” of mistrial. United States v.
Gantley, 172 F.3d 422, 429 (6th Cir. 1999). See also Jorn, 400 U.S. at 485, 487 (holding
the trial judge acted so abruptly that the parties had no opportunity to suggest alternatives
to mistrial and “made no effort to exercise a sound discretion” to assure that mistrial was
manifestly necessary); Rivera, 384 F.3d at 56; United States v. Simonetti, 998 F.2d 39, 41
(1st Cir. 1993).
In this case, the District Court did take the requisite steps to ensure mistrial was
not hastily declared. It inquired with Carr as to the likely scope of his conflict and

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discussed certain alternatives to mistrial. Moreover, though Gomez was not given any
opportunity to participate in the initial decision-making regarding mistrial, both he and his
counsel had meaningful opportunity to explore alternative ways to work around Carr’s
conflict when the District Court judge specifically invited them to file a Motion for
Reconsideration. Carr did file that motion for Gomez and the District Court issued its
denial in a written opinion, where it explained why Carr had to be recused. The District
Court’s apparent failure to consider more remote alternatives to mistrial is less troubling
than it otherwise would be where the court gave the parties ample opportunity to propose
alternatives. Cf. Love, 112 F.3d at 138-39 (holding mistrial was improper where counsel
did not have meaningful opportunity to object).
V.
The District Court had an important interest in protecting Gomez’s Sixth
Amendment right to effective counsel. Even with the advantage of hindsight, Gomez
does not identify any alternative to mistrial clearly adequate to protect that right. In light
of the substantial deference afforded the District Court in this context, we cannot say that
mistrial was not a manifest necessity. For the foregoing reasons, we deny the petition for
review of the order of recusal and affirm the order of mistrial.

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