June 26, 2019

Tenth Circuit: No Error in Failing to Grant Mistrial After Prosecution Elicited Previously-Barred Testimony

The Tenth Circuit Court of Appeals issued its opinion in United States of America v. Hargrove on Wednesday, January 2, 2019.

Defendant Mr. Hargrove was convicted and sentenced to sixty months imprisonment for conspiracy to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846, and of possession with intent to distribute 100 kilograms or more of a substance containing a detectable amount of marijuana, and aiding and abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.

Mr. Hargrove raised two challenges on appeal. First, the district court erred in failing to grant him a mistrial after the prosecutor elicited testimony that the district court had previously barred. Second, the district court erred in failing to grant him safety-valve relief under § 5C1.2 of the United States Sentencing Guidelines (U.S.S.G.). The Court of Appeals found no error in the district court’s rulings, and affirmed the district court.

Mr. Hargrove and two others were all found in Mr. Hargrove’s truck in the desert near the border between Arizona and New Mexico. Mr. Hargrove’s truck contained nearly 300 pounds of marijuana and two firearms. Prior to trial, Mr. Hargrove filed a motion in limine, in part to request that the district court exclude evidence that one of the firearms was stolen. The district court ruled that this evidence was inadmissible, as the risk of prejudice substantially outweighed any conceivable relevance, but allowed testimony about the presence of loaded firearms in the truck.

During trial, the prosecutor elicited testimony about the stolen gun, to which Mr. Hargrove’s counsel promptly objected and moved for mistrial. The court instructed the jury that they were to disregard anything regarding the firearm or its ownership. The prosecutor also took remedial measures during the remainder of the trial. Specifically, the prosecutor withdrew an exhibit displaying weapons retrieved from the truck, did not seek testimony from its expert witness regarding the use of firearms in the narcotics trade, and did not discuss either firearm during its closing arguments.

Following Mr. Hargrove’s conviction, Mr. Hargrove argued that he qualified for the safety-valve adjustment during sentencing under U.S.S.G. § 5C1.2. The district court denied Mr. Hargrove safety-valve relief.

With respect to the district court’s denial of Mr. Hargrove’s motion for mistrial, the Court weighed the three factors of the Meridyth test. First, the Court considered whether the prosecutor acted in bad faith. The Court noted that the prosecutor had specifically instructed the witness not to testify about the stolen nature of the gun. Further, the prosecutor’s conduct in immediately accepting responsibility for the improper testimony and taking steps to mitigate its prejudicial effects throughout the remainder of the trial was a strong indication that the prosecutor did not act in bad faith. The Court found this factor to weigh in favor of the government.

Next, the Court considered whether the district court limited the effect of the improper statement through its instructions to the jury. The Court noted that the district court gave two limiting instructions to the jury, one directly following the improper testimony, and one following the close of evidence. Because the district court had expressly and specifically emphasized that the jury was not to consider the improper statement for any purpose, the Court presumed the jury understood it was obliged not to consider any inferences based on such testimony and found this factor to weigh in favor of the government.

Finally, the Court considered whether the improper remark was inconsequential in light of the other evidence of the defendant’s guilt. The Court found that there was undisputed testimony which unequivocally indicated Mr. Hargrove was aware of and actively participated in the drug exchange, and any improper effect the improper statement may have had on the jury paled in comparison to the total weight of the government’s evidence, and therefore found this factor to weigh in favor of the government. Because the Court found all three factors weighed in favor of the government, the Court concluded that the district court did not err in denying Mr. Hargrove’s motion for a mistrial.

Mr. Hargrove also asserted the district court erred in denying him a U.S.S.G. § 5C1.2 safety-valve adjustment during sentencing. The district court had concluded that Mr. Hargrove was ineligible for the safety-valve reduction because the loaded firearms were located in the truck in close proximity to the drug trafficking, and had the potential to facilitate the drug trafficking. Mr. Hargrove argued on appeal that his possession of the firearms was unrelated to the drug-trafficking activity.

The Court disagreed. The Court explained that in evaluating the firearms provision of the safety-valve provision, there is a focus on the defendant’s own conduct and the nature of possession. The Court stated that active possession, by which there is a close connection linking the individual defendant, the weapon, and the offense, is sufficient to bar the application of the safety-valve. The Court noted that Mr. Hargrove had made no argument that the firearms were not his nor that the firearms were merely constructively possessed, instead Mr. Hargrove had conceded actual possession of the firearms by admitting that the firearms belonged to him and that he had brought them in the vehicle to the scene of the arrest. The Court held that for purposes of satisfying the safety-valve criteria, a firearm is possessed in connection with the offense if the firearm facilitates are has the potential to facilitate the offense. The Court therefore concluded that the district court did not err in denying safety-valve relief.


Tenth Circuit: Attorney-Client Privilege Belongs to Party who Hires Attorney, Not its Executives

The Tenth Circuit Court of Appeals issued its opinion in United States v. Merida on Tuesday, July 12, 2016.

Jason Merida was the executive director of construction for the Choctaw Nation. After an investigation revealed he had engaged in several acts of fraud to the detriment of the Nation, he was charged with several counts related to embezzlement, conspiracy, and failing to report income on his tax returns. Prior to trial, Choctaw’s attorney interviewed Merida. At the beginning of the interview, the attorney informed Merida that he was the attorney for the Nation and the interview was covered by the attorney-client privilege.

The Nation allowed portions of the interview to be used at trial to impeach Merida. When the impeachment testimony was admitted, Merida’s counsel objected and requested a bench conference. He moved for a mistrial, arguing the transcript was protected by the attorney-client privilege because the Nation’s attorneys were acting as Merida’s attorneys during the interview. The district court denied the motion, finding that any privilege belonged to the Tribe. The trial proceeded. After several hours of jury deliberations, the jury delivered to the court a note stating, “We can’t agree on a single count. What are your directions?” The court provided a modified Allen instruction and suggested that they adjourn for the evening and reconvene in the morning. The jury requested to be allowed to vote before adjourning, and quickly returned verdicts of guilty on six counts and not guilty on one count. Merida was sentenced accordingly and appealed, contesting only the court’s denial of his motion for mistrial.

The Tenth Circuit found no error in the district court’s determination that any privilege belonged to the Nation, and further found that its precedent required that determination. The Circuit noted that the Nation’s attorney did not aver that he was Merida’s attorney, but rather said that he was representing the Nation and any conversation was covered by the attorney-client privilege. Merida argued he reasonably believed the attorney was working for him, but the Circuit disagreed, noting that the privilege only applies where the client has sought out the attorney’s services. Since Merida was summoned by the Nation and had not requested the attorney’s services, the privilege did not apply to him.

The Tenth Circuit further evaluated any error that may have been caused, and determined it was harmless beyond a reasonable doubt. The evidence of Merida’s guilt was overwhelming, whereas the questioning that provoked Merida’s motion for a mistrial was only a few pages of the 5,000 page transcript. Merida also argues that it was a “close case” based on the jury’s note that it could not agree on a single count, but the Tenth Circuit found that the circumstances of the case strongly supported a reading that the jury had agreed on six of the seven counts but could not agree on the seventh—a “single” count.

The Tenth Circuit affirmed the district court’s denial of a mistrial because the attorney-client privilege belonged to the Nation. Judge Lucero wrote a separate concurrence to emphasize that Merida could not have subjectively believed the attorney-client privilege to apply to him.

Colorado Court of Appeals: Trial Court Within Discretion to Deny Mistrial Based on Defense Counsel’s Inappropriate Remarks

The Colorado Court of Appeals issued its opinion in Acierno v. Garyfallou, MD on Thursday, June 16, 2016.

Medical Malpractice—Mistrial—Prosecutorial Misconduct—Ex Parte—Witness—Physician–Patient Privilege—Costs—CRS § 13-16-105.

Acierno filed a medical malpractice suit against Dr. Garyfallou and other defendants. The other defendants settled, and the jury returned a verdict in favor of Dr. Garyfallou. Plaintiff appealed and defendant cross-appealed the trial court’s order denying his motion for costs.

On appeal, Acierno asserted that defense counsel’s (1) misstatement of the trial court’s jury instruction on the applicable standard of care and (2) improper comments related to “runaway juries, runaway verdicts, and adverse media” warranted a mistrial. Here, the jury had a written copy of the correct instructions, the judge carefully considered Acierno’s request for a mistrial, and the court took remedial actions by admonishing defense counsel in front of the jury and advising the jury to disregard defense counsel’s statements. Therefore, the court sufficiently addressed any prejudice to Acierno and a mistrial was not warranted. In addition, the trial court did not abuse its discretion in denying the motion for new trial (1) based on changed testimony by prosecutorial witnesses, because this argument was not preserved by a contemporaneous objection; and (2) based on Acierno’s contention that a defense witness violated the court’s sequestration order, because the trial court found there was no violation and Acierno did not point to anything in the record establishing that the court’s finding was clearly erroneous.

Acierno also contended that the trial court erred when it allowed defense counsel to meet ex parte with the radiologist who interpreted Acierno’s MRI and MRA results. The trial court did not abuse its discretion because it confined defendant’s informal questioning to matters not subject to physician–patient privilege and Acierno did not assert that residually privileged information was divulged.

Acierno also contended that the trial court erred in denying his motion for directed verdict on Dr. Garyfallou’s defense of pro rata liability. Because the jury concluded that the doctor did not breach the applicable standard of care, this error was harmless.

Dr. Garyfallou contended, and the Court of Appeals agreed, that the trial court erred in denying his motion for costs against Acierno. Such an award is mandatory under CRS § 13-16-105.

The judgment was affirmed, the order denying costs was reversed, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court Should Use Discretion in Rare Circumstances Where Mistrial Instruction Needed

The Colorado Supreme Court issued its opinion in Fain v. People on Monday, June 30, 2014.

Modified Allen Jury Instruction.

The Supreme Court overruled People v. Raglin, 21 P.3d 419 (Colo.App. 2000), in which a division of the court of appeals held that a modified Allen instruction [See Allen v. People, 660 P.2d 896, 898 (Colo. 1983).] “must inform the jurors that if it appears to the trial court that a unanimous decision cannot be reached, they will be excused and a mistrial declared.” The Supreme Court held that a trial court is not required to provide a mistrial advisement when giving a modified Allen instruction.

The trial court has discretion to instruct a deadlocked jury about the possibility of a mistrial when, considering the content of the instruction and the context in which it is given, the instruction will not have a coercive effect on the jury. The court should consider exercising its discretion in rare circumstances—for example, when a jury has actually indicated a mistaken belief in indefinite deliberations. Applying this holding, the Court concluded that the trial court did not err by failing to instruct the jury about the possibility of a mistrial. The judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: No Need to Give Jury Instruction on Declaration of Mistrial

The Colorado Supreme Court issued its opinion in Martin v. People on Monday, June 30, 2014.

Modified Allen Jury Instruction.

The Supreme Court overruled People v. Raglin, 21 P.3d 419 (Colo.App. 2000), in which a division of the court of appeals held that a modified Allen instruction [See Allen v. People, 660 P.2d 896, 898 (Colo. 1983).] “must inform the jurors that if it appears to the trial court that a unanimous decision cannot be reached, they will be excused and a mistrial declared.” The Supreme Court held that a trial court is not required to provide a mistrial advisement when giving a modified Allen instruction.

The trial court has discretion to instruct a deadlocked jury about the possibility of a mistrial when, considering the content of the instruction and the context in which it is given, the instruction will not have a coercive effect on the jury. The court should consider exercising its discretion in rare circumstances—for example, when a jury has indicated a mistaken belief in indefinite deliberations. Applying this holding, the Court concluded that the trial court did not err by failing to instruct the jury about the possibility of a mistrial. The judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Trial Court Not Required to Inform Jury of Mistrial when Giving Modified Allen Instruction

The Colorado Supreme Court issued its opinion in Gibbons v. People on Monday, June 30, 2014.

Modified Allen Jury Instruction.

The Supreme Court overruled People v. Raglin, 21 P.3d 419 (Colo.App. 2000), in which a division of the court of appeals held that a modified Allen instruction [See Allen v. People, 660 P.2d 896, 898 (Colo. 1983).] “must inform the jurors that if it appears to the trial court that a unanimous decision cannot be reached, they will be excused and a mistrial declared.”

The Court held that a trial court is not required to provide a mistrial advisement when giving a modified Alleninstruction. The trial court has discretion to instruct a deadlocked jury about the possibility of a mistrial when, considering the content of the instruction and the context in which it is given, the instruction will not have a coercive effect on the jury. The court should consider exercising its discretion in rare circumstances—for example, when a jury has indicated a mistaken belief in indefinite deliberations. Applying this holding, the Court concluded that the trial court did not err by failing to instruct the jury about the possibility of a mistrial. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Two Life Sentences for Violation of 18 U.S.C. § 2113(e) Violated Double Jeopardy

The Tenth Circuit Court of Appeals published its opinion in United States v. Jackson on Tuesday, November 26, 2013.

Defendant-Appellant Jeremiah Jackson robbed a bank and, while fleeing, lost control of his vehicle and crashed into another car, killing two women. He was convicted of one count of bank robbery and two counts of killing a person while attempting to avoid apprehension for bank robbery, in violation of 18 U.S.C. § 2113(e). The district court vacated the count of bank robbery as a lesser included offense of § 2113(e) and sentenced Jackson to two concurrent life terms.

On appeal, Jackson argued that sentencing him for two violations of § 2113(e) constituted double jeopardy because the two deaths arose from only one bank robbery-related accident, relying on the interpretation of similar statutory language held ambiguous such that lenity applies. The Tenth Circuit held that the phrase “any person” in § 2113(e) was sufficiently ambiguous as to require lenity. Thus, the two life sentences violated double jeopardy.

The court disagreed with Jackson’s contention that he should have been granted a mistrial. The prosecutor’s remarks during closing argument  were not directed to his decision to remain silent and any problems were cured by the limiting instruction given.

Jackson made several arguments based on the court’s failure to instruct the jury that he must have acted knowingly in committing the traffic accident that caused the deaths. The Tenth Circuit rejected them all and affirmed the trial court, with the exception of remanding for resentencing.