United States v. Gutierrez-Alvarez

UNITED STATES OF AMERICA v. JUAN GUTIERREZ-ALVAREZ and JUAN GUTIERREZ

CRIMINAL ACTION NO. 4:12-cr-261

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

SIGNED: June 3, 2014

MEMORANDUM AND ORDER

Pending before the Court is Defendants' Motion to Dismiss. (Doc. No. 185.) After considering all of the parties' arguments, the applicable law, and the record in this case, the Court cannot find, as it must in order to grant relief, that the prosecution deliberately provoked a mistrial with the intent of circumventing the protections of the Double Jeopardy Clause. Accordingly, the Court must DENY Defendants' Motion.

I. BACKGROUND

The Defendants in this criminal action, Juan Gutierrez ("Gutierrez") and Juan Gutierrez Alvarez ("Alvarez"), have been charged with felonies under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846, and 18 U.S.C. § 2. Trial in this case commenced on December 16, 2013. After two-and-one-half days of trial, Mr. Alvarez took the stand. The prosecution, in its cross-examination, sought to elicit testimony regarding Mr. Alvarez's immigration status. Prior to trial, the prosecution had represented to the Court that it would not attempt to introduce such evidence. Then, before beginning its cross-examination, the prosecution sought leave from the Court to question Mr. Alvarez as to his immigration status. The Court refused to allow such questioning, finding it both irrelevant and prejudicial. Nevertheless, the prosecution proceeded to inquire into Mr. Alvarez's immigration status. Thereafter, upon Defendants' motion, the Court declared a mistrial because of this improper questioning.

A second trial is scheduled to begin June 9, 2014. Defendants have filed a motion seeking to dismiss the indictment, arguing that the prosecution should be barred, under the Double Jeopardy Clause, from bringing them to trial a second time.

II. LEGAL STANDARD

Generally, when a defendant moves for, and is granted, a mistrial, retrial is allowed. See Oregon v. Kennedy, 456 U.S. 667, 672-73 (1982); United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003). In Kennedy, the Supreme Court determined that the Double Jeopardy Clause may nevertheless bar retrial under certain circumstances. As the Supreme Court analyzed the issue, "the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Kennedy, 456 U.S. at 679. The "existence or nonexistence of intent" to provoke a mistrial may be inferred "from objective facts and circumstances." Id. at 675.

Importantly, the Supreme Court made it clear that prosecutorial misconduct alone is not sufficient for a retrial to result in a double jeopardy violation: "Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Id. at 675-76. Following this, the Fifth Circuit has determined that retrial is not barred even where the prosecution engages in gross negligence or "intentional conduct that seriously prejudices the defense." United States v. El-Mezain, 664 F.3d 467, 561 (5th Cir. 2011) (citing Wharton, 320 F.3d at 531-32; United States v. Singleterry, 683 F.2d 122, 123 & n.1 (5th Cir. 1982)).

III. ANALYSIS

Defendants claim that the prosecution goaded them into moving for a mistrial when it intentionally attempted to introduce irrelevant and prejudicial evidence concerning Mr. Alvarez's immigration status (and, by implication, Mr. Gutierrez's status as well), despite an order from the Court barring such evidence. Defendants contend that the trial was going poorly for the prosecution. They argue that cross-examination by the defense had shredded the credibility of the prosecution's witnesses; that the testimony of those witnesses was inconsistent; that there had been insufficient pre-trial investigation, which had left the prosecution without key evidence; and that there was little evidence to connect Mr. Gutierrez to the alleged conduct. Defendants assert that, in light of all of this, and the prosecution's unexplained disregard for the Court's ruling regarding immigration status evidence, the only way for the prosecution to salvage the case was a second trial. Only a second trial would allow it to better prepare its witnesses and conduct additional investigation. Consequently, they argue, knowing that defense counsel certainly would seek a mistrial, the prosecution deliberately attempted to introduce evidence regarding Defendants' immigration status - evidence which the prosecution had, prior to trial, disclaimed any intent of introducing and which this Court had forbidden.

The prosecution responds that, by its questioning, it intended to address Mr. Alvarez's credibility and criminal history only. The prosecution maintains that it believed that Mr. Alvarez's direct examination testimony had opened the door to cross examination as to his character for being truthful and law-abiding, and that it did not violate or in any way circumvent the Court's order or its prior representation because it did not ask questions directly concerning immigration status or relating to immigration documentation. The prosecution claims that it did not intentionally seek a mistrial with its questioning, but that its questions were instead based on"mistake or inadvertence regarding the scope of the court's order." U.S.' Resp. Mot. Dismiss Based on Double Jeopardy at 6 ("Response"; Doc. No. 225). Moreover, it argues, it had presented to the jury a strong case for conviction of both of the Defendants and therefore had no reason to seek a mistrial. In support, the prosecution not only discusses the progress of the trial and the strength of its position as Mr. Alvarez took the stand, but it also points to its strong opposition to a mistrial when it was requested by Defendants.

The parties discuss in detail four cases, none of which is dispositive. Defendants rely on Ex Parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). In Wheeler, following improper questioning by the prosecution, the defendant requested and was granted a mistrial. The trial court refused to bar retrial on double jeopardy grounds; the appellate court reversed. The Texas Court of Criminal Appeals discussed the relevant state and federal double jeopardy standards (including that developed in Kennedy) at some length before it ultimately reversed the appellate court and upheld the trial judge's decision. Recognizing that this Court is in no way bound by the decisions of the Texas Court of Criminal Appeals, Defendants do not argue that Wheeler is in any way controlling here. Rather, they argue that its discussion of double jeopardy standards provides an illustrative list of the kinds of objective facts and circumstances that at least one court has found informative in adjudicating the question of whether the Double Jeopardy Clause precludes retrial under Kennedy. While there is no disputing that the factors outlined by the Texas Court of Criminal Appeals are indeed relevant, they do not govern the outcome here or substitute for this Court's own judgment of this case's particular facts and circumstances - and Defendants agree.

The prosecution offers three cases which it contends are instructive: United States v. Poole, 735 F.3d 269 (5th Cir. 2013), United States v. Dugue, 690 F.3d 636 (5th Cir. 2012), andState v. Parker, 707 S.E.2d 799 (S.C. 2011). The prosecution cites Poole in support of the proposition that "a prosecutor's violation of an order is not a basis to dismiss an indictment." Resp. at 10-11. Defendants assert that the prosecution's citation to Poole is mistaken because that case dealt with the granting of a new trial under standards applicable to Federal Rule of Criminal Procedure 33(a), but contained no discussion or application of Kennedy's double jeopardy analysis. Defendants are correct that, in Poole, the Fifth Circuit did not undertake an analysis of prosecutorial intent as required under Kennedy; the Court therefore agrees that it is inapposite to this case.

By contrast, in Parker and Dugue, the South Carolina Supreme Court and the Fifth Circuit, respectively, were called upon to adjudicate motions to dismiss under Kennedy. As is the case with Wheeler, Parker and Dugue are relevant, but not dispositive. They too offer the Court examples of how other courts - including the Fifth Circuit - have undertaken the Kennedy analysis and the kinds of factors they have found persuasive. Defendants are correct that the only appropriate inquiry under Kennedy is prosecutorial intent, judged according to the facts and circumstances of this case. Parker and Dugue are exactly what the prosecution claims them to be - instructive - nothing more, and nothing less. They are not dispositive, but the Court does not take the prosecution to be arguing that they are. Like Wheeler, the Court will consider them in its assessment of the facts and circumstances of this case.

Turning, then, to those facts and circumstances, the Court initially notes that the parties have provided it with detailed explanations of why the prosecution's case was - or was not - headed towards conviction. Even assuming that Defendants are correct, that the prosecution's case was weak and acquittal was likely, the Court cannot find that Defendants have met their burden to demonstrate that the prosecution intended to obtain a mistrial.

Defendants make much of what they characterize as the prosecution's unexplained abandonment of its pre-trial representation that it would not seek to introduce anything regarding Defendants immigration status, and argue that it only did so in an effort to seek a second "bite at the apple."...