Metropolitan News-Enterprise


Friday, January 13, 2012


Page 1


Prosecutor’s Misconduct No Bar to Retrial, Panel Rules


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that double jeopardy did not prevent drug smuggling charges from being reasserted against a defendant who obtained a mistrial after the prosecutor presented a falsified version of her earlier statements to impeach her.

In an opnion by Judge Carlos T. Bea, the panel concluded that “this [was] a case of a prosecutor crossing the line in an attempt to ‘win at all costs,’ ” and an opportunity to remind all attorneys in the U.S. government’s employ “that the dual obligation of a federal prosecutor in our justice system is to strike hard blows but to refrain from striking foul ones; to use legitimate means to attempt to secure a conviction without employing improper methods to do so.”

Bea noted that the court was not the proper venue for direct discipline of Assistant U.S. Attorney Jerry Albert, “so we will not state here that the blow struck by Albert necessarily was one so foul as to require some form of sanction,” and proceeded to provide detailed instructions as to how a complaint could be filed against him.

Albert was the prosecutor at the trial of Aurora Lopez-Avila, who was arrested after she attempted to enter the United States from Mexico at the Nogales Port of Entry in

Arizona. She was charged by indictment with possession with intent to distribute over 5 kilograms of cocaine.

Lopez-Avila initially pleaded guilty, and a magistrate judge proceeded to ask her a series of questions to ensure she was knowingly and voluntarily entering her plea to the charges against her.

During this colloquy, the magistrate judge asked her if “anyone threatened you or forced you to plead guilty,” and Lopez-Avila answered in the negative.

One month later, during a presentence interview, Lopez-Avila stated that she had been “forced” into the smuggling attempt. Her counsel then moved to withdraw the guilty plea in light of this new information. Following a hearing, the motion was granted.

The case proceeded to trial. As Lopez-Avila conceded that she had been transporting contraband, so the only contested issue was whether she was acting under duress.

On the afternoon of the second day of trial, Lopez-Avila took the stand in her own defense. She testified she had been coerced to transport the drugs, and during cross examination Albert attempted to impeach Lopez-Avila’s testimony regarding such coercion by asking questions regarding what Lopez-Avila had said during her initial guilty plea hearing.

Defense counsel objected, and at sidebar, Albert requested that he be allowed to recite to Lopez- Avila the following question and answer from the initial guilty plea hearing: “COURT: Ms. Lopez, has anybody threatened you? DEFENDANT: No.”

The trial judge overruled the objection and allowed the prosecution to proceed.

Albert then asked Lopez-Avila: “do you recall testifying under oath on February 24th, 2010, and being asked…by the magistrate judge…has anyone threatened you…[and] did you give the following answer: No.”

After Lopez-Avila answered in the affirmative, Albert remarked that “you’ve now admitted that you in fact told the judge that you were not threatened in this case,” so “[d]id you lie… about not being threatened?”

Lopez-Avila again answered in the affirmative, and the cross-examination proceeded for about 40 more minutes before a recess was called.

During the recess, defense counsel asked the prosecution for a copy of the transcript from the guilty plea hearing. Upon reviewing the transcript, defense counsel noticed that the prosecutor had misquoted the magistrate judge’s question to Lopez-Avila, without notifying the court or defense counsel of his alteration.

Defense counsel then moved for a mistrial, which was granted.

Following the mistrial order, defense counsel moved to dismiss the case on double jeopardy grounds, but U.S. District Judge Cindy K. Jorgenson of the District of Arizona denied the motion, finding no evidence that Albert’s conduct “ was a strategy decision on [the prosecution’s] part to abort the trial.”

She opined that the prosecutor’s presentation of the edited transcript “was a deliberate strategy…to attempt to convict the defendant, or present evidence that [the prosecution] felt was supporting guilt rather than presenting evidence in order to go to a mistrial.”

Bea said that Jorgenson was correct, explaining that the Double Jeopardy Clause usually does not bar retrial when a mistrial is declared with the consent of the defendant and that the Supreme Court has “expressly rejected the idea that double jeopardy would bar retrial when mere ‘bad faith conduct’ or ‘harassment’ on the part of the judge or prosecutor” provoked the defense to ask for a mistrial.

The intent of the prosecutor in acting improperly, Bea said, must be to terminate the trial, not just to win. “In other words, in the language of veteran trial lawyers, the Double Jeopardy Clause bars retrial when a prosecutor’s misconduct aims to “burn” the jury, but not when he merely aims to convict the defendant by methods foul,” he wrote.

Joined by Senior Judge John T. Noonan and Senior District Judge Donald E. Walter of the U.S. District Court for Western Louisiana, who sat on the panel by designation, Bea directed the matter remanded to the district court to consider whether to dismiss the indictment with prejudice as a sanction for the government’s misbehavior and whether to discipline Albert directly.

Bea also pointed our that within the Department of Justice, the Office of Professional Responsibility could also review Albert’s conduct and that “[a]nyone may file a complaint with the Office by sending a letter to the address listed on OPR’s website at”

The case is United States v. Lopez-Avila, 11-10013.


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