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______________________
with whom Jay P. McCloskey, United States Attorney, and Jonathan
________________
________
A. Toof, Assistant United States Attorney, were on brief for
________
appellee.
____________________
July 20, 1993
____________________
TORRUELLA,
Circuit Judge.
_____________
was charged
with conspiracy
distribute
it
in
severed
Simonetti's
to
dismiss
constitute
rights.
case
from
21
U.S.C.
that
of
his
Simonetti's objection.
the
double jeopardy
intent to
841(a)(1),
indictment,
alleging
in violation
of his
codefendant
and
Simonetti later
retrial
would
constitutional
redacted
of
cocaine with
to possess
violation
the government
reports of government
released to
interviews with
Simonetti
Peter Shoureas.
The reports
referred to
that
conspired
cocaine.
Mr.
Domenic
Simonetti
with Shoureas
While
At trial,
and
Shoureas and
(also
referred
others to
to
as
possess and
to
"Nick")
distribute
attorney,
conspiracy arguably
referred
involved
to as "Nick."
trafficking
Skinsacos
another individual
On different occasions
defendant Domenic
who
offered
potentially
also
was
exculpatory
Skinsacos'
This new
evidence
for
that
failed to disclose
because
he
the court
previously
before trial.
that he had
represented
a conflict
Skinsacos.
In
of
The
district
court
determined
that
the
government
should have
been provided
court ordered
disclosure of
to the
defense.1
not
Skinsacos'
the references
As
all references to
did
a remedy,
the
Skinsacos.
The
the
See United States v. Devin, 918 F.2d 280, 289 (1st Cir.
___ _____________
_____
(delayed
disclosure
does
not
warrant
dismissal
where
however.
The
conflict of interest
district
court
with Skinsacos
recognized
that
implicated
Skinsacos, not
Lilley's
present
client,
however, because
____________________
1
The district court deemed the oversight careless and
specifically found no bad faith on the part of the prosecutor.
2
3
Maine
provides:
Code
of
Professional
Responsibility
Rule
3.4(e)
the
use
of
confidential
representation
information
to the detriment of
obtained
in
or for the
Consequently,
prior
of the
have vigorously
from Skinsacos.
Cf.
___
United
______
an effort
court granted
to resolve
Simonetti's objection,
the conflict
a continuance for
several
of interest.
Over
severed Simonetti's
mistrial.
Simonetti moved
to dismiss the
case on double jeopardy grounds and the district court denied the
motion, finding that
Jeopardy Clause.
The
a new
violate the
Double
Double
Jeopardy
Clause of
the
Fifth
Amendment
____________________
new
employment involves
the subject
matter of the former employment or may
involve
the
use
of
confidential
information obtained through such former
employment.
4
Maine Code of Professional Responsibility
provides in relevant part:
Rule 3.6
(l)(1)
[A]
lawyer
shall not,
without the
informed written consent of the client,
knowingly reveal a confidence or secret
of the client; use such confidence or
secret to the disadvantage of the client;
or use such confidence or secret to the
advantage of the lawyer or
a third
person.
5
Counsel for codefendant
prejudice his client.
argued
that
further delay
would
-4-
Retrial after
a properly declared
mistrial does
was justified
States v.
______
Court
objection, retrial
P rez, 22
_____
has
U.S. (9
interpreted
degree" of necessity.
Samaha,
______
667 F.2d
by
224,
"manifest necessity."
Wheat.) 579 (1824).
"manifest
necessity" to
Arizona, 434
_______
228 (1st
Arizona v.
_______
U.S. at 505;
Cir.
1981).
if the
Id.;
___
United
______
The
Supreme
mean
"high
see Brady
___ _____
"The
v.
'manifest
necessity'
standard
defendant's
jury
selected while
time
first
public's
interest
judgments.'"
(quoting
in
Oregon
______
Wade v.
____
provides
at
fair
v.
sufficient
the same
trials
designed
Kennedy,
_______
Hunter,
______
336
456
U.S.
completed
by
the
end
667,
689
in
672
just
(1982)
(1949)).
The
particular
Arizona, 434
_______
consistently
emphasized that
mechanically
or "without
to
maintaining 'the
to
U.S.
684,
protection
tribunal"
n.11, 505.
the
judge."
Moreover,
standard
attention
to
is
implicated.
applied
the particular
problem
Id. at 506;
___
cannot
trial
judge
reviewing court is to
engaged
in
assure ourselves
'scrupulous
exercise
of
-5-
judicial discretion'
a mistrial was
necessary."6
Samaha, 667
______
issue, and
reflection.
(1st
(3)
decided precipitously
United States v.
______________
or after
sufficient
F.2d 1524,
F.2d at 228-29;
1528-29
the
present
exercised his
case,
the
district
discretion.
court
After the
options:
permit
remedies.
from Skinsacos.
conflict of
a conference
He suggested several
judge
or continuance to
counsel or to
obtain a waiver
called a recess to
let counsel
research
resumed,
next
several days.
The
district judge
specifically requested
____________________
6
Contrary to Simonetti's suggestion, this is not a case
involving prosecutorial misconduct designed to "harass or to
achieve tactical advantage over the accused," which would warrant
review under the "strictest scrutiny" standard. See Arizona, 434
___ _______
U.S. at 508. The district court specifically found that neither
off.
even
considered
continue
the case
with
his
new
case
to
allow new
the
prejudicial to codefendant.
codefendant
Simonetti's case
the
been unfairly
with
to
or whether a waiver
court
counsel
wished
The
jury
and
Likewise, to proceed
later reconvene
could
not
return
fair
the
jury
to
hear
under
such
circumstances.
time and
problem, while
energy
to
resolve
the
conflict
in completing his
trial before
of
interest
strong interest
impaneled.
The
the conflict
the original
jury.
As a
result,
mistrial was
a manifest
necessity.
The
argues that,
to mistrial,
retrial is
not a case in
even absent
less drastic
barred where
mistrial is
intentionally goaded or
-7-
the
U.S. at 679.
prosecution
"could
be
considered,
However,
or unfair behavior"
objectively,
Id.
___
as
United
______
Cir. 1989).
finding of
references to
Nick Skinsacos
in
the redacted
reports was
inadvertent,
although careless.
See supra
___ _____
notes 1
& 6.
The
misconduct which
causes
a mistrial.
potentially
Attorney
only a
earlier.
government simply
Lilley's law
firm had
peripheral player
We thus
governmental
of "inexcusable negligence"
conflict of
circumstances, the
Under these
known that
represented Skinsacos,
in Simonetti's
do not confront
failure to disclose
case, some
a case in
who was
five years
which inexcusable
affirm the
______
decision of
-8-
as the