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U.S. v Amaya

Case No. 13-2378 (C.A. 8, Apr. 10, 2014)

After two mistrials, a jury convicted Angel Amaya of conspiracy to launder money and conspiracy to possess with intent to distribute methamphetamine, cocaine, and marijuana. He moved to dismiss, invoking double jeopardy. He also sought sanctions for the government’s failure to disclose its GPS surveillance. The district court denied the motion to dismiss and declined to impose sanctions. Amaya appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.



Amaya’s first trial began in October 2011. Before trial, the district court partially granted Amaya’s motion in limine, ruling that “witnesses will not be allowed to opine that the defendant is a ‘drug dealer.’” Due to a “docketing snafu,” the parties did not receive the sealed order, which was emailed, rather than posted publicly on CM/ECF. The parties learned of the order at a pretrial conference the first day of trial. The government’s first witness, DEA Special Agent David Jensen, testified:

GOVERNMENT: Very broadly, how did that investigation begin?

SPECIAL AGENT JENSEN: Well, we received information about a cash seizure on the interstate. We also received information from the Kansas City Alcohol, Tobacco, and Firearms also known as the ATF about a drug dealer in Sioux City named Angel Amaya.


The court instructed the jury to disregard the statement. Amaya moved for a mistrial. The government opposed. The court declared a mistrial.
 

 

Judge(s): William D. Benton
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Constitutional Law , Criminal Justice , Government / Politics
 
Circuit Court Judge(s)
William Benton
Kermit Bye
James Loken

 
Trial Court Judge(s)
Mark Bennett

 

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721, 725 (8th cir. 1999). the district court said that (1984), brown v. ohio, 432 u.s. 161, 165 (1977). the clause does not, however, granted the motion: to goad amaya into moving for a mistrial. jensen was the government’s first witness; (8th cir. 2001) (“we review the district court’s denial of a motion to dismiss an after hearing special agent jensen’s testimony, i am convinced that, see united states v. branch, 591 f.3d 602, 607 (8th cir. 2009) (“we have held that curtilage which is anybody who driving by could see, we could see that it is also “highly unlikely the government manufactured pre-trial discovery jeopardy. see standefer, 948 f.2d at 432 (double jeopardy did not preclude retrial a few incidents in which agents referred to gps devices in their reports, the district court found (and theparties agree) that the government violated the provoking a mistrial at that stageof the proceedings.”). additionally, the government amaya’s first trial began in october 2011. before trial, the district court appeals. having jurisdiction under 28 u.s.c. § 1291, this court affirms. the district court did not abuse its discretion in declining to impose sanctions.2 angel amaya criminal prosecution is over. if the first two mistrials were caused by cm/ecf. the parties learned of the order at a pretrial conference the first day of united states v. dinitz, 424 u.s. 600, 611 (1976). “absent intent to provoke a rather than bad faith. discovery file, would, at least, have given amaya some notice that gps the fifth amendment’s double jeopardy clause provides that no person shall about a drug dealer in sioux city named angel amaya. -11- explained that this mistake was inadvertent, and the defendants have stress,and added expense” was “modest,” and had, “for the most part,” been remedied any mistake on special agent jensen’s part in reading the policy was an scott, 437 u.s. 82, 93 (1978). the district court’s factual finding that amaya’s first states v. amaya, 853 f. supp. 2d 818, 833 (n.d. iowa 2012). it found no fourth f.3d 238, 249 (8th cir. 2013). “the district court has broad discretion in imposing prosecutorial misconduct” implicating double jeopardy. standefer, 948 f.2d at 432. would not reasonably believe that jensen would testify about the gps surveillance. that anyprejudiceto amayawas remedied, and that no further sanction was necessary second without mentioning it. amaya moved for a mistrial, asserting that the government never disclosed the gps to ensure future compliance. supervisors. . . . thus, any mistake on special agent jensen’s part in northern district of iowa. amaya’s second trial began in december 2011. at trial, special agent jensen amaya also argues that the government’s warrantless gps surveillance2 -2- unsuccessful—use of gps monitoring. this affidavit, if present in the oklahoma trials was not intended to goad the defendants into moving for a mistrial. amaya did not brief this argument in district court but argued it at the hearing omission at the precise moment when the prosecution allegedly sensed to embarrassment, expense and ordeal three times. the enforcement of the criminal laws in one proceeding.” oregon v. kennedy, 456 appropriate to secure future government compliance.” united states v. pherigo, 327 dea policy,” the policy “clearly contradicts special agent jensen’s position.” id. by the mistrial and the opportunity to file a motion to suppress. given me no reason to doubt the prosecution’s explanation. although he did not refer to the use of gps devices in his reports, he did double jeopardy. the government opposed. the court denied the motion. attempts does the government get to try to gain a conviction against a amaya also suggests that the successive mistrials “reflect a pattern of the time i felt i was safeguarding a sensitive investigative technique, and after three mistrials, two of which resulted from prosecutorial misconduct). include in discovery the affidavit in support of the title iii wiretap although he did not refer to the use of gps devices in his reports, he did he says: compliance with that order ever since. also, i find that the dea policy there is any prejudice to the defendant; and (3) whether any lesser sanction is ______________________________ there were two causes for the prosecution’s failure to apprise amaya of monitoring had been involved in his case. theprosecution hasindicated -10- bars retrial “where the prosecutor’s actions giving rise to the motion for mistrial were amaya into requesting a mistrial is not clearly erroneous. see united states v. yet, on the other hand, provides that agents should not create a situation surveillance, although a discovery violation, was inadvertent. id. at 825-32. 705 f.2d 970, 971 (8th cir. 1983). i reviewed is, itself, somewhat confusing, in that it, on the one hand, it—were “designed to provoke a mistrial.” denying amaya’s motion to dismiss, the cash seizure on the interstate. we also received information from the lllllllllllllllllllll plaintiff - appellee legally put on, and everywhere his vehicle went for the most part we before loken, bye, and benton, circuit judges. early stage. radosh, 490 f.3d at 685. finally, the statement did not necessitate a did not impose sanctions. id. at 837. (considering a prosecutor’s vigorous opposition to a mistrial as one factor in f.3d 690, 694 (8th cir. 2003). “to obtain dismissal of an indictment, a defendant locations. on his motion for dismissal. the district court did not expressly rule on whether the in reports, in order to address the problem that arose here.” denying amaya’s motion to dismiss, the court said that the first mistrial was “the -3- -5- statement, and even extensive misconduct do not prevent reprosecution.” united protects against “multiple punishments for the same offense.” bally v. kemna, 65 the question becomes—at what point is enough-enough. how many the defendant . . . into moving for a mistrial” (internal citations omitted). davis, 244 f.3d 666, 670 (8th cir. 2001). this court considers: “(1) whether the it stretches the bounds of credulity to think that the prosecutor or agent u.s. 671, 672 (1982). “[w]here the defendant moves for a mistrial,” double jeopardy moneyand conspiracyto possess with intent to distributemethamphetamine,cocaine, amaya presents no evidence that the government intended to provoke a united states v. amaya, 853 f. supp. 2d 835, 836-37 (n.d. iowa 2012). the court dealer—was intended to provoke a mistrial. however, in a footnote of the order discovery sanctions are reviewed for abuse of discretion. united states v. polk, 715 his supervisor specifically instructed all agents not to mention gps -4- restrictions on evidence in this case.” and marijuana. the district court sentenced him to 180 months’ imprisonment. third, the district court found that sanctions were unnecessary to ensure future i. reading the policy was an honest one due to the wording of the policy, iii. government’s act in the first trial—special agent jensen calling amaya a drug first, the district court found that the government did not act in bad faith by neither of amaya’s mistrials resulted from government acts intended to ___________________________ amaya claims that his conviction after two mistrials constitutes double specific defendant before double jeopardy protections kick in and the stage. radosh, 490 f.3d at 685 (“the ‘snitch’ testimony came early in the first trial. violation. after an evidentiary hearing, the district court denied the motion. united protections afforded by the double jeopardy clause.’”), quoting wassall v. ryan, wiretap. in february 2012, after the united states supreme court decided united states standefer, 948 f.2d 426, 432 (8th cir. 1991) (“in rejecting appellants’ motion to determining whether the government provoked the defendant into moving for a const. amend. v. this clause “provides a criminal defendant with three protections. argued that the government’s failure to disclose the surveillance was a discovery v. jones, 132 s. ct. 945 (2012), amaya moved to suppress all information and after two mistrials, a jury convicted angel amaya of conspiracy to launder failing to disclose the gps surveillance. special agent jensen reported the the judgment is affirmed. the honorable mark w. bennett, united states district judge for the1 provoke a mistrial. amaya’s conviction after two mistrials does not violate double amaya contends that the district court should have dismissed the indictment amaya’s third trial began in may 2012. a jury convicted him of conspiracy there is no evidence that the government wanted to provoke a mistrial at this early mistrial. the question to special agent jensen was general: “very broadly, how did application. the affidavit referred to agents’ attempted—though dismiss, the district court expressly found that this government conduct in the moved for a mistrial. kennedy, 456 u.s. at 676 (“a defendant’s motion for mistrial witness; there is no evidence that the government wanted to provoke a mistrial at this a. a conviction.” dodge v. robinson, 625 f.3d 1014, 1017 (8th cir. 2010). the third mistrial. the district court immediately instructed the jury to disregard the statement. from inadvertent filing. at amaya’s detention and preliminary examination hearing devices in their reports. special agent jensen has written his reports in ____________ a full-fledged argument in opposition speaks to the time pressures of trial, not to any trial. the government’s first witness, dea special agent david jensen, testified: surveillance. the government opposed. the district court declared a mistrial. v. were aware of where he was at whether it be public parking lots, certain -8- errors to halt a trial that was not going well.” united states v. washington, 198 f.3d directs agents to reveal what information they observed, but not how; sanctions for the government’s failure to disclose its gps surveillance. the district the first two guard against successive prosecution, either after an acquittal or after to opine that the defendant is a ‘drug dealer.’” due to a “docketing snafu,” the parties intent to provoke a mistrial.” the prosecution admits that its failure to provide notice of the gps mistrial “was the result of a docketing snafu” is not clearly erroneous. compliance: “[t]he prosecution indicates that, since the suppression hearing, the “offer a guarantee to the defendant that the state will vindicate its societal interest in government: very broadly, how did that investigation begin? district court found “absolutely no evidence . . . that the prosecution intended to goad surveillance was inadvertent: reason why the government would wish to risk a double jeopardy dismissal by submitted: march 25, 2014 violated federal rule of criminal procedure 41(f)(2). amaya did not raise this ____________ states v. beeks, 266 f.3d 880, 882 (8th cir. 2001) (per curiam). result of a docketing snafu—the prosecutor did not receive the sealed motion in jeopardy. this court reviews the double jeopardy claim de novo and the district special agent jensen: well, we received information about a the government opposed. the court declared a mistrial. jensen, would engineer a discovery violation well in advance of trial, evidence from the gps surveillance, as violating the fourth amendment. he also devices to the defendants was a pretrial discovery violation. see so anything on the outside of the front of his house outside of the the district court also found that agent jensen’s testimony was not intended argument on the government’s motion to reconsider the bad-faith finding. the court second, the district court found that any prejudice to amaya from “delay, has given me no reason to doubt the prosecution’s explanation. second, i thought i was following policy.” angel, then in all likelihood double jeopardy might not apply. when constitutes ‘a deliberate election on his part to forgo his valued right to have his guilt the use of gps monitoring before trial. first, the prosecution failed to radosh fails to point out how the trial was going poorly for the government or any ___________________________ in may 2011, jensen also disclosed physical and electronic surveillance and a and marijuana. he moved to dismiss, invoking double jeopardy. he also sought the district court’s factual finding that the government did not intend to goad -7- its case was failing. we had a hidden camera in the public right-of-way aimed at his house, resistance at 6 (docket no. 291). however, the prosecution has in discovery, that agents had used gps monitoring. rather, he used oral motion for mistrial. the fact that the prosecution could not, on the spot, advance supervisors. special agent jensen testified that, several years ago, after sanctions on parties for failing to comply with discovery orders.” united states v. -9- affidavit was not in the discovery file, the court determined that the error resulted although jensen claimed to withhold information “in order to comply with written done ‘in order to goad the [defendant] into requesting a mistrial.’” id. at 673, quoting finally, contrary to amaya’s assertions, the government sufficiently opposed the “be subject for the same offense to be twice put in jeopardy of life or limb.” u.s. so in order to comply with the directives he had received from his dea limine ruling prior to the trial and, thus, did not inform his witnesses of this court’s in april 2012, the district court held the sanctions hearing. it also heard with the calculated hope that the defendants would realize the discovery ____________ jensen testifying about gps surveillance despite the government’s failure to disclose or innocence determined before the first trier of fact.’”), quoting united states v. ii. ____________ benton, circuit judge. argument in district court. it is waived. morrow v. greyhound lines, inc., 541 f.2d local drug task force has modified its policiesregardingreferences to gpsmonitoring -6- lllllllllllllllllllll defendant - appellant “surveillance showed” to indicate gps monitoring. he testified that “at 24 hours a day. we also had an electronic device on his vehicle that we 713, 724 (8th cir. 1976). states v. tulk, 171 f.3d 596, 598 (8th cir. 1999). kansas city alcohol, tobacco, and firearms also known as the atf disclose the use of gps devices to amaya.” id. at 832. specifically, it found that amendment violation and determined that the prosecution’s failure to disclose the however, the court found that special agent jensen “acted in bad faith in failing to court’s factual findings for clear error. united states v. bearden, 265 f.3d 732, 735 there were two actual and a near third mistrial, angel has been subjected partiallygranted amaya’s motion in limine, ruling that “witnesses will not be allowed or otherwise sanctioned the government for failing to disclose the gps surveillance. special agent jensen did not indicate, in the reports amaya did receive b. which we agree, that the prosecutor’s conduct did not reflect ‘an intent to subvert the indictment on double jeopardy grounds de novo.”); united states v. radosh, 490 the court instructed the jury to disregard the statement. amaya moved for a mistrial. that investigation begin.” like the second trial, jensen was the government’s first must generally show both flagrant misconduct and substantial prejudice.” united mistrial). the district court found that “the prosecution did oppose the defendants’ to launder money and conspiracy to possess with intent to distribute meth, cocaine, amaya, 853 f. supp. 2d at 836-37 (order on motion for reconsideration). amaya primarily argues that the government’s acts in the second trial—agent honest one due to the wording of the policy, rather than bad faith. court denied the motion to dismiss and declined to impose sanctions. amaya1 for the eighth circuit its sanctions order, the court determined that the government did not act in bad faith, stipulated discovery order by failing to disclose the gps surveillance. however, in not intend to provoke a mistrial was not clearly erroneous.”). the district court elaborated on this finding in the orders on amaya’s motion to after hearing special agent jensen’s testimony, i am convinced that, in which defense counsel could suggest they are hiding evidence. thus, appeal from united states district court mistrial, a prosecutor’s error in questioning a witness, improper remark in a closing for the northern district of iowa - sioux city surveillance before trial in a title iii affidavit signed by the court. although that drastic than a mistrial, such as an instruction to the jury to disregard the testimony.’”), f.3d 682, 685 (8th cir. 2007) (“[t[he district court’s finding that the government did again testified as the first witness. on cross-examination, he said: the district court found that the government’s failure to disclose the gps * * * * * * * so in order to comply with the directives he had received from his dea did not receive the sealed order, which was emailed, rather than posted publicly on amaya also moved for dismissal with prejudice, arguing a retrial would violate mistrial. see united states v. jordan, 429 f.3d 1032, 1037 (11th cir. 2005) government acted in bad faith and the reason(s) for delay in production; (2) whether filed: april 10, 2014 f.3d 104, 106 (8th cir. 1995), quoting ohio v. johnson, 467 u.s. 493, 497-98 that theomission of theaffidavit was an inadvertent mistake, and amaya this finding is not clearly erroneous and reflects the district court’s judgment, with the court set a sanctions hearing on the discovery violation. united states of america amaya, 853 f. supp. 2d at 831-32 (order on motion to suppress). suppress and the government’s motion for reconsideration: no. 13-2378 the ‘exposure of a jury to improper testimony ordinarily is cured by measures less he completed his entire examination in the first trial and his direct examination in the quoting united states v. sherman, 440 f.3d 982, 987 (8th cir. 2006). amaya then united states court of appeals


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