Jane Orie v. Secretary Pennsylvania Departm ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 16-1685
_______________
JANE C. ORIE,
Appellant
v.
SECRETARY PENNSYLVANIA DEPARTMENT OF
CORRECTIONS
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-15-cv-01153)
Magistrate Judge: Honorable Robert C. Mitchell
_______________
Argued June 5, 2019
Before: JORDAN, BIBAS, and MATEY, Circuit Judges
(Filed: )
_______________
William C. Costopoulos [ARGUED]
Costopoulos Foster & Fields
831 Market Street
P.O. Box 222
Lemoyne, PA 17043
Counsel for Appellants
Ronald M. Wabby, Jr. [ARGUED]
Allegheny County Office of District Attorney
436 Grant Street
Pittsburgh, PA 15219
Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Forging evidence is one way to get a mistrial. Jane Orie, a
former Pennsylvania state senator, introduced forged evidence
at her trial in state court. So the judge declared a mistrial. (The
exhibits that triggered the mistrial are appended to this opin-
ion.) During Orie’s second trial, the court excluded her expert
witness because his testimony would have been irrelevant. Af-
ter her second trial, a jury convicted her of forgery, theft of
services, Pennsylvania Ethics Act violations, and related
crimes. Orie now brings a federal habeas petition challenging
these convictions.
We hold that Orie’s convictions do not warrant habeas re-
lief. To start, we lack jurisdiction to consider her challenge to
her Ethics Act convictions because she is not in custody for
those convictions. On the merits, the state appellate court rea-
sonably upheld the trial court’s finding that a mistrial was
2
manifestly necessary because the forged documents could have
tainted the jury’s verdict. So the mistrial and retrial did not
amount to double jeopardy. And Orie did not show that her
senate-rules expert’s testimony would have been material, so
she had no constitutional right to call this witness. As to the
Ethics Act convictions, we will thus vacate and remand with
instructions to dismiss for lack of jurisdiction. We will other-
wise affirm.
I. BACKGROUND
Orie used her government-funded legislative staff to do po-
litical fundraising and campaigning for her reelection. When
the Commonwealth started investigating that behavior and
other alleged misconduct, she tried to hide and destroy docu-
ments. The Commonwealth then charged Orie with several
crimes related to using state employees for personal gain and
later trying to cover it up. Her sisters, Joan Orie Melvin, a
Pennsylvania Supreme Court Justice, and Janine Orie, Mel-
vin’s aide, were charged with similar crimes.
A. Orie’s first trial and the forged exhibits
In February 2011, Orie’s case went to trial in Pennsylvania
state court. At trial, she argued that she had consistently in-
structed her staff not to do political work on legislative time.
She accused her chief of staff, Jamie Pavlot, of disobeying her
instructions by letting staff do campaign work on the taxpay-
ers’ dime. Orie introduced and authenticated a number of ex-
hibits with directives from her to Pavlot not to do political work
on legislative time. But Orie claimed that Pavlot disregarded
these directives.
3
Pavlot, who testified for the prosecution, said she did not
recall seeing these directives. Orie’s lawyer found this incred-
ible. Both in his cross-examination of her and in his closing
argument, he repeatedly questioned Pavlot’s failure to recog-
nize the documents.
But the prosecution quickly determined that at least two of
these exhibits had forged signatures. See infra Appendix. Dur-
ing the cross-examination of Orie, the prosecution pointed out
that Pavlot’s signature line on one exhibit did not line up with
the other words on the page. See infra Appendix Ex. 101B. And
the prosecution claims that it noticed during jury deliberations
that Pavlot’s signature on a different exhibit seemed to have
been copied and pasted from another document. Compare infra
Appendix Ex. 101A (original signature), with id. Ex. 110 (cop-
ied-and-pasted signature). The prosecution made this discov-
ery only three days after the defense belatedly turned over these
exhibits.
The court immediately held a hearing to figure out what to
do about the alleged forgeries. At the hearing, the prosecution
called a handwriting expert, who testified that the signatures
on the documents had been copied and pasted. The defense
chose neither to cross-examine the prosecution’s expert nor to
introduce any evidence to contradict the expert’s testimony.
The prosecution asked the court to give the jury a special in-
struction on these forged documents. The defense objected to
any new jury instructions, saying that it would prefer a mistrial
to a new instruction. But Orie also objected to a mistrial and
simply asked that jury deliberations resume. The court found
that the forged documents were “a fraud on the Court,” the
4
jury, and the justice system; “call[ed] into suspicion every doc-
ument that the defense offered”; and could undermine any ver-
dict that the jury might reach. App. 1573a. So it declared a mis-
trial.
After the mistrial, the prosecution had the Secret Service
test the authenticity of thirty-four original defense exhibits.
The Secret Service found that well over a dozen of these ex-
hibits had handwriting that “may have been reproduced via
photocopies.” App. 1695a. It also found evidence that Pavlot’s
signature had been copied and pasted into three exhibits. As
discussed below, after her second trial, Orie was convicted of
forgery and evidence tampering for introducing fake exhibits
during her first trial.
B. Orie’s second trial and exclusion of her expert
witness
In February 2012, Orie went to trial again on both her orig-
inal charges and new charges related to the fake exhibits. Dur-
ing this second trial, the prosecution called an expert who tes-
tified that Orie’s office lease barred her staff from using that
office for anything besides legislative work. Orie asked to call
an expert in rebuttal. She said that her expert would testify that
the senate rules let staff do political work from senators’ legis-
lative offices on comp time. (Compensatory time, often called
comp time, is time that an employee may take off work in re-
turn for having worked extra hours. See, e.g., 29 U.S.C.
§ 207(o).)
The prosecution argued that the senate rules were irrele-
vant. It pointed out that Orie’s behavior could break the law
5
even if her behavior did not violate the senate rules. The court
agreed. The court also worried that the jury might think her
expert was opining on the law. So it excluded her senate-rules
expert.
The jury convicted Orie of theft of services, conspiracy to
commit theft of services, evidence tampering, and forgery. It
also convicted her of using her political position for personal
gain, in violation of the Pennsylvania Ethics Act, 65 Pa. Cons.
Stat. § 1103(a) (conflict of interest). See also id. § 1102 (defin-
ing conflict of interest). The court sentenced Orie to prison for
her theft-of-services, conspiracy, evidence-tampering, and for-
gery convictions. But on the Ethics Act convictions, it imposed
“[n]o further penalty.” App. 1066a; see Pa. Cons. Stat. § 9723.
C. Post-conviction proceedings
Orie appealed her convictions in state court, but to no avail.
Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. Ct.), appeal
denied, 99 A.3d 925 (Pa. 2014). She then filed this federal ha-
beas petition, which the District Court rejected on the merits.
We granted a certificate of appealability. On appeal, she makes
three arguments: first, that the Pennsylvania Ethics Act is un-
constitutionally vague; second, that her retrial violated the
Double Jeopardy Clause; and third, that excluding her senate-
rules expert violated her constitutional right to call witnesses
in her defense.
Besides disputing these claims on the merits, the Common-
wealth raises two procedural issues: First, it argues that we lack
jurisdiction over Orie’s Ethics Act claim, because she received
no further penalty. Second, it argues that she failed to exhaust
6
her Sixth Amendment claim. Her habeas appeal was consoli-
dated with those of her sisters, who were also convicted of var-
ious crimes. We will issue separate opinions in each case.
D. Standard of review
On federal habeas review of state convictions, we defer to
state courts. “[W]e review the ‘last reasoned decision’ of the
state courts on the petitioner’s claims.” Simmons v. Beard, 590
F.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard, 539
F.3d 256, 289–90 (3d Cir. 2008)). We must presume that the
state court’s factual findings are correct. 28 U.S.C.
§ 2254(e)(1). A petitioner can rebut this presumption only by
offering “clear and convincing evidence.” Id.We also defer to state courts on issues of law: We must up-
hold their decisions of law unless they are “contrary to, or in-
volve[ ] an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” Id. § 2254(d)(1). So on federal habeas, “even ‘clear er-
ror’ will not suffice.” White v. Woodall, 572 U.S. 415, 419
(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76
(2003)). Instead, the state court must be wrong “beyond any
possibility for fairminded disagreement.” Id. at 420 (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)).
II. WE LACK JURISDICTION OVER ORIE’S
ETHICS ACT CLAIM
Orie is not in custody for her Pennsylvania Ethics Act con-
victions. We thus lack jurisdiction to reach the merits of her
claim that the Ethics Act is unconstitutionally vague.
7
A federal court has habeas jurisdiction only if the petitioner
is “in custody.” 28 U.S.C. § 2254(a). She is in custody when
she suffers a “non-negligible restraint on [her] physical liberty”
because of a particular conviction. Piasecki v. Court of Com-
mon Pleas, 917 F.3d 161, 166 (3d Cir. 2019) (internal quota-
tion marks omitted). We gauge custody for each offense inde-
pendently. Maleng v. Cook, 490 U.S. 488, 490–92 (1989). In
other words, a defendant convicted of multiple offenses can be
in custody for one but not for another.
Orie was sentenced to “[n]o further penalty” on her Ethics
Act convictions. App. 1066a. She received no sentence of in-
carceration or confinement of any kind on those counts. So
Orie suffered no physical restraint and thus was never in cus-
tody for these offenses.
Orie claims she was in custody for her Ethics Act convic-
tions because she suffered one “general sentence” for all her
offenses. Appellant’s Br. 24. But her sentencing order imposed
a discrete sentence for each count of conviction. And the order
said that she would not be punished beyond a determination of
guilt for her Ethics Act convictions.
Orie also argues that she was in custody for her Ethics Act
convictions because her conspiracy and theft-of-services con-
victions were “predicated” on her Ethics Act convictions. Id.This argument fails as well. Her conspiracy conviction was
predicated instead on her agreement to commit theft of ser-
vices. And the theft-of-services statute does not depend on any
other offense. See 18 Pa. Cons. Stat. § 3926(b). Her convictions
may have been based on the same behavior, but Orie’s Ethics
Act convictions were separate from her other convictions. She
8
is in custody for her conspiracy and theft-of-services convic-
tions, not her Ethics Act convictions. We thus lack habeas ju-
risdiction over her Ethics Act claim.
III. THE SUPERIOR COURT PROPERLY UPHELD
ORIE’S RETRIAL
The Fifth Amendment’s Double Jeopardy Clause ordinarily
bars retrials. But a retrial after a mistrial does not amount to
double jeopardy when the mistrial was manifestly necessary.
Arizona v. Washington, 434 U.S. 497, 505 (1978). Though
manifest necessity requires a “high degree of necessity,” mak-
ing that judgment call is “reserved to the broad discretion of
the trial judge.” Renico v. Lett, 559 U.S. 766, 774 (2010) (in-
ternal quotation marks omitted). We scrutinize a mistrial more
closely if the trial judge has not exercised his “sound discre-
tion” or if the prosecutor appears to be “harass[ing]” or gaining
a “tactical advantage over the accused.” Arizona v. Washing-
ton, 434 U.S. at 508, 510 n.28. But absent such prosecutorial
misconduct, if a trial judge grants a mistrial to prevent a jury
verdict from being tainted by other trial misconduct, that judg-
ment “is entitled to special respect.” Id. at 510.
We are even more deferential on federal habeas review. We
look to the last reasoned state-court decision, which here is the
Pennsylvania Superior Court’s affirmance on direct appeal.
We do not ask whether the trial judge should have declared a
mistrial, nor whether it abused its discretion by doing so. Ra-
ther, we ask only whether the state appellate court’s finding
that there was no abuse of discretion was “an unreasonable ap-
plication of . . . clearly established Federal law, as determined
9
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1); accord Renico, 559 U.S. at 772–73.
A. The Superior Court’s decision was reasonable
The Pennsylvania Superior Court’s decision more than sat-
isfies our deferential standard of review. To begin, it reasona-
bly set forth the federal principles governing appeals of a man-
ifest-necessity finding. It explained that it was reviewing for
abuse of discretion, deferring to the trial court’s superior ability
to gauge potential bias and jury prejudice. 88 A.3d at 995–97;
see Renico, 559 U.S. at 772–73 (standard of review); Arizona
v. Washington, 434 U.S. at 510 (deference). And it warned that
trial courts should not declare mistrials too readily and should
resolve any doubts in favor of the defendant. 88 A.3d at 996;
see Renico, 559 U.S. at 772–74.
Next, the Superior Court reasoned that the trial court had
legal authority to grant a mistrial once it discovered that the
exhibits were forged. It reasonably held that “[o]nce the trial
judge realized forged documents had been admitted into evi-
dence, he could not allow those documents to enter into the
jury’s deliberation and verdict.” 88 A.3d at 998. No Supreme
Court case suggests otherwise. On the contrary, in so holding,
the Superior Court cited and reasonably interpreted the Su-
preme Court’s guidance. See id. (citing trial court’s opinion as
in turn citing Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238 (1944)); see also Hazel-Atlas, 322 U.S. at 246(“The public welfare demands that the agencies of public jus-
tice be not so impotent that they must always be mute and help-
less victims of deception and fraud.”).
10
The Superior Court also reasonably upheld the trial court’s
“initial factual determination that the documents were forger-
ies.” 88 A.3d at 998–99. In doing so, it made a series of rea-
sonable observations: The jury did not have enough evidence
to resolve that question. Id. at 998. Though the prosecution
brought out Exhibit 101B’s defects on cross-examination of
Orie, it did not discover Exhibit 110’s forgery until after the
jury had started deliberating. Id. The jury was never instructed
what to do if it found that documents were forged. Id. And be-
cause the defense did not let the prosecution inspect the docu-
ments until the second-to-last day of trial, the prosecution
could not have discovered the forgeries earlier. So the prose-
cution could not introduce evidence to help the jury evaluate
the exhibits. Id. at 998–99. The record amply supports each of
these observations.
Further, the Superior Court reasoned that the forged exhib-
its were material to the trial’s outcome. As it noted, Orie had
argued “that Pavlot had the complete authority to direct the
staffers and that Pavlot acted on her own initiative and against
Orie’s directives that no improper political activity occur in the
office.” Id. at 999. The forged documents supported that read-
ing. Orie had introduced these documents to show that Pavlot
had disobeyed Orie’s directives and let the staff do campaign
work on legislative time. These and similar documents were
the basis of Orie’s argument to the jury that Pavlot, not Orie,
was responsible for the staffers’ actions. And when Pavlot
could not remember any of the directives on cross-examina-
tion, the defense impugned her credibility.
11
Pavlot’s credibility was at the heart of the case. As Orie’s
lawyer argued in closing, “[t]he Commonwealth’s case rises
and falls on [Pavlot’s] truthfulness.” Tr. Pt. 7, 1st Trial (Mar.
2, 2011), p. 3180. So Pavlot’s forged signatures on those doc-
uments greatly inflated the force of Orie’s arguments and her
cross-examination of Pavlot.
Finally, the Superior Court emphasized that while the trial
court had solicited and weighed alternative remedies, it had
reasonably found that nothing short of a mistrial would coun-
teract the fraud. 88 A.3d at 998–99. That reasoning is sound.
The trial court repeatedly asked the parties what it should do
about the forgeries, both before and after hearing from the
handwriting expert. Twice, the prosecution suggested a cura-
tive instruction. But twice, the defense balked, insisting that
“[b]efore you do that then declare a mistrial” and that giving
an instruction “is absolutely not an option here.” App. 1557a,
1571a. Orie’s only proposed remedy, as the Superior Court
noted, was to do nothing. See 88 A.3d at 999 & n.13; see also
App. 1572a (“We are asking that [the jury’s] deliberations re-
sume immediately, and we are opposed to a mistrial.”). Given
the importance of the forged documents, the threat to the integ-
rity of the verdict, and the lack of a good alternative remedy,
the only solution was a mistrial. So we cannot say that the Su-
perior Court’s decision to uphold the grant of a mistrial was
unreasonable.
B. Orie’s objections fail
Orie challenges the decision upholding the mistrial on five
grounds. Not one succeeds.
12
First, she criticizes the trial court’s decision to halt jury de-
liberations and seize the questioned exhibits after speaking
only with the prosecution. But even if that is what happened,
there is nothing wrong with that. When they learn of possible
misconduct, judges often tell juries to stop deliberating without
first telling counsel. E.g., United States v. Bristol-Mártir, 570
F.3d 29, 36 (1st Cir. 2009). To resolve the forgery allegation
here, the trial court needed the challenged exhibits, which the
jury had. And there is no reason to think that asking for a pause
caused incurable harm. The trial court told the jury only that
“there is a legal matter before the Court” and warned the bailiff
to retrieve the exhibits without talking to anyone. App. 1541a.
Besides, there was no significant ex parte communication.
The prosecutor said exactly two sentences to the judge before
the judge told him to wait for defense counsel. When the judge
told him to wait, “[d]efense counsel was just entering the court-
room.” App. 1589a. The judge did not see the forged docu-
ments, hear the prosecutor’s arguments, or start to discuss a
mistrial before defense counsel got there. Nor is there any ban
on declaring a mistrial sua sponte. United States v. Wecht, 541
F.3d 493, 504 (3d Cir. 2008).
Second, Orie claims that the prosecution had repeatedly
questioned the defense exhibits’ credibility and meaning, so
the jury was already on notice of potential forgery. But ques-
tioning evidence’s credibility and meaning is quite different
from showing that it is forged. The specter of forged trial ex-
hibits came up only briefly at trial—most notably when the
prosecution questioned Exhibit 101B’s authenticity on cross-
examination.
13
Third, Orie argues that the trial judge usurped the jury’s
factfinding role. She argues that the jury should have decided
the question of forgery, not the judge. But there is no legal or
logical reason why courts cannot find facts in granting mistri-
als. Indeed, they must do so, especially where the impropriety
giving rise to the mistrial could prejudice the jury.
Fourth, Orie blames the prosecution for seeking a tactical
advantage and intentionally provoking a mistrial. But the pros-
ecution never asked for a mistrial, even after the court dis-
cussed that possibility and even after the handwriting expert
testified. Indeed, the remedies it did request were quite tame
and reasonable. At first, it asked the court to instruct the jury
to compare the two signatures and draw its own conclusions.
After the expert testified, the prosecution sought an instruction
or stipulation that the documents were forged and an instruc-
tion to consider the significance of the forgery. But Orie re-
fused to consider these options, instead preferring a mistrial. If
anyone provoked a mistrial, it was Orie herself.
Finally, Orie says that the trial court erred by “convicting”
her of forgery and fraud without evidence that she intentionally
did anything wrong. Appellant’s Br. 50. She also objects that
Pavlot had custody of the documents and so she could have
been responsible for the forgery. But the trial court never ac-
cused Orie herself of forgery. Rather, it said: “I don’t know
who among the parties involved for the defense has done this,
but I cannot allow this jury to continue with fraudulent infor-
mation in front of them.” App. 1573a.
What is more, the trial court acted reasonably in blaming
the defense for the forgeries. Orie’s counsel told the court that
14
the documents “were and are in [the defense’s] possession” un-
til trial; the prosecution said that, as far as it knew, the docu-
ments had come from Orie’s office; and Orie never contested
that statement. App. 1555a.
In short, we see no basis to disturb the Superior Court’s re-
jection of Orie’s double-jeopardy claim.
IV. EXCLUDING ORIE’S ETHICS EXPERT WAS PROPER
Orie argues that the trial court violated her constitutional
right to present her defense by excluding her expert witness on
the senate rules. Though Orie may not have preserved this
claim, the Commonwealth waived the exhaustion requirement.
Still, this claim is meritless. She had no right to call her witness
because the witness’s testimony would have been immaterial.
A. We will address the merits of Orie’s constitutional
claim
The Commonwealth waived its argument that Orie did not
exhaust her constitutional claim. Before we can review a state
habeas petition, the petitioner must first exhaust her state rem-
edies. 28 U.S.C. § 2254(b)(1)(A). But a state can waive exhaus-
tion if it does so explicitly through counsel. Id. § 2254(b)(3).
That waiver is valid even when lack of exhaustion would oth-
erwise have barred the petitioner’s claim. Sharrieff v. Cathel,
574 F.3d 225, 229 (3d Cir. 2009).
Here, in its answer to Orie’s habeas petition, the Common-
wealth waived the exhaustion requirement. It conceded that
“Petitioner’s claims are exhausted” and “Petitioner’s claims
are not procedurally defaulted.” D.C. ECF No. 64, pp. 34–35.
15
These statements were in the answer signed by the Common-
wealth’s counsel and filed in the District Court. So the Com-
monwealth waived exhaustion. We will decide her claim on the
merits.
The parties quibble over whether Orie’s constitutional
claim was before the Superior Court. Orie insists that she has
all along framed her challenge to the expert’s exclusion in con-
stitutional terms. (She now phrases it primarily in terms of the
Sixth Amendment, but also touches lightly on due process.)
The Commonwealth tells us that in state court, Orie made only
an evidentiary argument. And the Superior Court, for its part,
reasoned in evidentiary terms. 88 A.3d at 1000–01.
But we need not decide whether the Superior Court’s ruling
implicitly addressed the merits of Orie’s constitutional argu-
ment, and so would merit deference on habeas. Whether habeas
deference applies or not, the trial court’s exclusion of the evi-
dence did not violate the Constitution. See Berghuis v. Thomp-
kins, 560 U.S. 370, 390 (2010).
We have seen “apparently little, if any, difference in the
analysis” of excluding evidence under compulsory process or
due process. Gov’t of the V.I. v. Mills, 956 F.2d 443, 445 n.4
(3d Cir. 1992). So we will focus, as Orie does, on the Sixth
Amendment.
B. Orie had no right to put on a senate-rules expert
because his testimony would not have been material
to her trial
Orie’s senate-rules expert would not have offered material
testimony, so she had no Sixth Amendment right to call him.
16
The Sixth Amendment’s Compulsory Process Clause guar-
antees a defendant the right to call witnesses in her defense.
Washington v. Texas, 388 U.S. 14, 19 (1967). But it does not
give a defendant the right to introduce any testimony she likes.
Taylor v. Illinois, 484 U.S. 400, 410 (1988). Courts may ex-
clude incompetent, privileged, or otherwise inadmissible testi-
mony under the rules of evidence. Id.; Montana v. Egelhoff,
518 U.S. 37, 42 (1996).
To make out a violation of this Sixth Amendment right to
compulsory process, the defendant must show that the wit-
ness’s “testimony would have been both material and favorable
to [the] defense.” United States v. Valenzuela-Bernal, 458 U.S.
858, 867 (1982). Not all relevant evidence is material. To be
material, it must be reasonably likely to affect the trial’s out-
come. Id. at 873–77.
Orie’s expert testimony was unlikely to affect her trial’s
outcome. Her witness was an expert on the senate’s rules. He
would have testified that these rules let staff do political work
in legislative offices using comp time. But Orie was not ac-
cused of telling her staff to do political work during comp time.
Orie conceded as much. So the jury could not have convicted
her for that. Instead, to convict, the jury had to find that she
told her staff to do political work on the state’s time. And her
expert testimony about what employees could do on comp time
could not have affected that finding.
Orie’s rejoinder depends on a misreading of the record. She
argues that the prosecution’s expert had inaccurately testified
that the senate rules forbade all political work in legislative of-
fices. So, she says, she needed her expert to rebut that
17
falsehood. But the prosecution’s expert never made such a
statement. The prosecution’s expert had testified that Orie’s of-
fice lease, not the senate rules, barred using the office for any-
thing but legislative work. So her expert would not have rebut-
ted the prosecution’s expert.
Not only was Orie’s expert testimony immaterial, but it
could have confused the jury. Judges may exclude evidence
that risks “confusing the issues, [or] misleading the jury.” Pa.
R. Evid. 403. Her expert could have led the jury to confuse
what the senate rules allowed with what Pennsylvania law al-
lowed. The trial court wanted the jury to learn the law from the
court’s instructions rather than from a witness’s testimony. The
court’s reasonable exclusion of evidence under the “standard
rules of evidence” does not violate the Sixth Amendment.
Egelhoff, 518 U.S. at 42 (quoting Taylor, 484 U.S. at 410).
* * * * *
All three of Orie’s arguments fail. She is not in custody for
her Ethics Act convictions, so we lack jurisdiction to hear her
challenge to that statute. The Superior Court reasonably af-
firmed the trial court’s finding that the forged documents made
a mistrial manifestly necessary, so retrying her did not amount
to double jeopardy. And Orie’s expert testimony about senate
rules was immaterial to her case, so excluding her expert wit-
ness did not violate her constitutional right to put on her de-
fense. As to the Ethics Act convictions, we will thus vacate and
remand with instructions to dismiss for lack of jurisdiction. We
will otherwise affirm.
18
Appendix
Exhibit 101A
(Compare Pavlot’s signature with Exhibit 110)
19
Exhibit 101B
20
Exhibit 110
(Compare Pavlot’s signature with Exhibit 101A)
21