United States v. Eric Romero-Lobato ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10050
Plaintiff-Appellee, D.C. No.
3:18-cr-00047-LRH-CLB-1
v.
ERIC ROMERO-LOBATO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted January 12, 2021
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and RESTANI,** Judge.
In May 2018, Eric Romero-Lobato (Appellant) was indicted on one count of
being a deported alien found unlawfully in the United States, in violation of 8
U.S.C. § 1326(a). Appellant’s current illegal reentry charge is based on four prior
removals, during which he made sworn statements confirming his illegal reentry
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
into the United States and his status as an alien. Prior to trial, the district court
denied Appellant’s motion to dismiss the charges on the grounds that his 1996
deportation was illegal. At a pre-trial conference, the parties confirmed their
readiness to proceed to trial and that trial documents would be submitted no later
than noon on Friday, January 3, 2020. This included complete exhibit lists and
proposed jury instructions. Appellant submitted five untimely filings, two of which
were submitted the morning of trial.1
Trial began the morning of January 6, 2020 and the jury was sworn. Defense
counsel emphasized its untimely filings were critical to Appellant’s only defense to
the government’s case: casting doubt on his alienage by showing that he may be
entitled to derivative citizenship. The government expressed concern that the
defense was similar to an already denied attempt to dismiss the case based on the
legality of the 1996 deportation. The district court judge declared a mistrial to
allow for briefing on the issues raised by defense counsel in the late filings.
Appellant filed a motion to dismiss the 8 U.S.C. § 1326(a) charge against him with
prejudice on double jeopardy grounds. Appellant appeals the district court’s denial
of this motion. We affirm. Because the parties are familiar with the facts, we do
1
The untimely filings include: three proposed jury instructions filed ex parte and
under seal which went to the defense theory of derivative and acquired citizenship,
a motion in limine to preclude the government from referencing Appellant’s prior
criminal convictions, and three amended exhibit lists.
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not recount them here, except as necessary to provide context.
We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s
denial of a motion to dismiss on double jeopardy grounds de novo. United States v.
Hickey, 367 F.3d 888, 891 n.3 (9th Cir. 2004). We review the determination that a
mistrial was warranted by manifest necessity for abuse of discretion. United States
v. Chapman, 524 F.3d 1073, 1083 (9th Cir. 2008). Once a jury is impaneled, a
district court may only declare a mistrial where a defendant consents or if there is
“manifest necessity.” United States v. Bates, 917 F.2d 388, 392–93 (9th Cir. 1990).
A trial judge’s sua sponte declaration of mistrial “based on his or her own
observations and personal assessment that a fair trial would be impossible . . .
must be given special deference.” Chapman, 524 F.3d at 1082.
Because Appellant did not consent, the question in front of the court is
whether “manifest necessity” justified the district court’s declaration of mistrial. In
analyzing whether “manifest necessity” existed, we consider whether the district
court “(1) heard the opinions of the parties about the propriety of the mistrial, (2)
considered the alternatives to a mistrial . . . [and/or] (3) acted deliberately instead
of abruptly….” Chapman, 524 F.3d at 1082 (quoting Bates, 917 F.2d at 396).2
2
Bates also presents a fourth factor to consider: the benefit to a defendant of a
mistrial. 917 F.2d at 397 (citing United States v. Jorn, 400 U.S. 470, 483 (1971)
(“A mistrial granted to benefit the defendant is favored” and a reviewing court
must be “careful not to use hindsight to second-guess a trial court's conclusion that
a mistrial was important to protect a defendant's rights[.]”). It is unclear how this
3
Hearing from the parties
In order to exercise sound discretion, a trial judge should provide parties
with an “opportunity to explain their positions on the propriety of a mistrial.”
Arizona v. Washington, 434 U.S. 497, 515–16 (1978); see also Bates, 917 F.2d at
396 (“trial courts are much more likely to have exercised sound discretion when
they listen to the parties before declaring a mistrial and dismissing the jury.”).
Here, the record shows that Appellant was afforded such an opportunity when
defense counsel objected to the mistrial and incorporated other arguments by
reference.
Considering the alternatives
The district court considered multiple alternatives before declaring a
mistrial. The trial judge provided Appellant an opportunity to waive his alienage
defense and associated jury instruction to proceed with the trial. In its denial of
Appellant’s motion to dismiss, the trial judge states that it considered three other
alternatives: (1) a continuance to allow the parties to brief the issue, (2) allowing
factor should be weighed given somewhat conflicting Supreme Court precedent.
See Chapman, 524 F.3d at 1082 n.3. We need not decide this, however, because
the first three Bates factors support our determination that the district court did not
abuse its discretion in granting a mistrial. An analysis of this fourth factor would
only further support our conclusion. By declaring a mistrial, the district court
allowed Appellant to preserve his only defense, affording him the opportunity to
demonstrate that there was a sufficient basis to present it to the jury, which did not
yet exist.
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Appellant to raise the disputed facts at trial and then rule on the proposed jury
instruction prior to closing arguments, and (3) striking Appellant’s untimely filings
and prohibiting the presentation of evidence not listed in the timely filed exhibit
list. The district court is not required to articulate all the factors which informed its
discretion at the time of the mistrial. Washington, 434 U.S. at 516–17; Chapman,
524 F.3d at 1081. The judge made clear that he believed the trial could not
continue and the record supports his determination that the alternatives considered
would not have resulted in a fair trial because extensive briefing on the untimely
raised defense issues was required, causing a delay. This is further supported by
the judge’s immediate scheduling of briefing and a new trial date.3 The district
court’s determination in this context “must be given substantial deference.”
Chapman, 524 F.3d at 1083.
Deliberate instead of abrupt action
A trial judge must act rationally, deliberately and take “great care to avoid a
premature mistrial declaration.” Bates, 917 F.2d at 397 (citation omitted). Abrupt
and precipitate action is inconsistent with an exercise of sound discretion. Id. The
prompt action taken by the district court suggests the judge exercised sound
3
The evidentiary hearing scheduled for Appellant to present evidence on his
proposed derivative citizenship defense and the new trial date were vacated,
pending the outcome of this appeal.
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discretion because in declaring a mistrial he deliberately acted to avoid further
problems resulting from defense counsel’s late filings.
On balance, applying Bates to the circumstances of this case indicates that
the district court exercised sound discretion in declaring the mistrial. The record
supports the district court’s determination of manifest necessity—a determination
that is entitled “special deference.” Chapman, 524 F.3d at 1082, 1083–84; see also
Washington, 434 U.S. at 514. Therefore, the Fifth Amendment’s double jeopardy
clause does not bar retrial. Chapman, 524 F.3d at 1083–84. Accordingly, the
district court’s denial of Appellant’s motion to dismiss the indictment on double
jeopardy grounds is AFFIRMED.
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