Thursday, September 18, 2003
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Ninth Circuit Bars Retrial of Attorney for Threats
By a MetNews Staff Writer
A lawyer will not be subject to retrial on federal charges of threatening opposing counsel because a judge improperly declared a mistrial soon after his trial began, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court said Senior U.S. District Judge Robert M. Takasugi of the Central District of California failed to make a record adequate to support his finding of “manifest necessity” to dismiss the jury empaneled to try Cash Joseph Bonas. Takasugi announced the morning after jury selection was completed that he had learned four of the jurors were not being paid by their employers while serving.
He said forcing them to serve anyway would make a fair trial difficult.
Bonas was indicted on federal charges alleging he made a series of escalating email and voicemail threats directed at lawyers for three supermarket chains after losing a jury trial against them. The class-action suit against Ralph’s, Von’s and Lucky’s had engaged in egg price-fixing.
The firms representing the markets, according to the allegations against Bonas, responded to the threats by tightening their security and in some cases hiring armed guards.
Bonas objected to the proposal for a mistrial. Prosecutors neither supported nor objected to it, but did ask that Takasugi “just utter the magic words, that the court finds that manifest necessity exists.”
The judge replied “I certainly will find that, yes” and declared a mistrial. He subsequently denied Bonas’ motion to dismiss on double jeopardy grounds, and Bonas appealed.
Writing for the appeals court, Judge Alex Kozinski said Takasugi abused his discretion in finding manifest necessity for discharging the jury.
“In attempting to conduct our review, we are immediately confronted with the problem that the record contains no evidence supporting the district court’s determination of manifest necessity,” Kozinksi declared. “Everything we know about the four jurors who were not getting paid by their employers comes from the district judge. The judge, of course, was not a witness—.Moreover, it is unclear whether the judge obtained his information directly from the four jurors, or through one or more layers of hearsay. It is thus difficult to know what the jurors actually said, or what, if anything, they were told.”
The appeals court could accept the district judge’s account of his efforts to investigate whether the jurors would be paid by their employers and whether alternative sources for payment were available, Kozinski acknowledged.
“A formal record must be present, however, when the issue is communications with the jurors themselves,” he reasoned. “The jurors’ ability to serve impartially for the remainder of the trial is at the heart of the district judge’s determination of manifest necessity, yet, without a record of what they actually said and thought, we have no way of reviewing whether the district judge’s decision to declare a mistrial was a sound exercise of discretion.”
Nothing in the record, Kozinski said, established that the jurors were unwilling or unable to perform their duty in a trial anticipated to last no longer than four days.
“Here, we have no evidence—not even the district judge’s possibly-hearsay report—that all four jurors were unwilling to put aside their unhappiness at having to serve without pay and discharge their duties as instructed by the court,” Kozinski observed. “Nor is it out of the question that the jurors could have done so—.We cannot presume that the jurors, if properly admonished by the court as to their civic responsibilities, would have been unwilling to do their duty for the one to two additional days it would have taken to complete the trial.”
Kozinski said that prosecutors could also have urged that a fuller record be made.
“It was not defendant’s burden to insist that the district court make a better record supporting its grant of a mistrial,” he wrote. “Defendant had a constitutional right to proceed to verdict with the jury empaneled in his case. If the district court thought it necessary to deprive him of that right, it had the responsibility to establish a factual basis supporting that action. And, if the government wished to retain the right to retry defendant before another jury, it had both the duty and the incentive to ensure that the court’s finding of manifest necessity was supported by evidence on the record.”
Getting the judge to utter the words “manifest necessity” was insufficient, the appellate jurist said.
“[T]his is not a Harry Potter novel; there is no charm for making a defendant’s constitutional rights disappear,” he declared. “By bypassing the opportunity to urge the district court to make a record supporting its finding of manifest necessity, the government forfeited the right to try the defendant again.”
Judge Thomas G. Nelson and Judge Jane A. Restani of the U.S. Court of International Trade, sitting by designation, concurred.
A State Bar spokesperson said Bonas is currently ineligible to practice law due to failure to pay dues and satisfy MCLE obligations.
The case is U.S. v. Bonas, 02-50631.
Copyright 2003, Metropolitan News Company