When it rains, it pours.
The Ninth Circuit publishes as many merits opinions today as it has during the entire rest of 2012. There's some neat stuff in there as well.
I'll mention one of these opinions for now. This one. As to which my reaction is: "Right on."
It's a fairly stunning case. Lopez-Alvia is smuggling around 10 pounds of cocaine across the border, and customs officials catch her. She initially pleads guilty, and has a plea hearing, but then changes her mind and withdraws the plea. Her defense at trial is duress, claiming that she only smuggled drugs because she was threatened to do so.
No surprises thus far. Happens every day.
Everything's going fine, but then at trial, the AUSA asks the court to permit him to introduce a statement that Lopez-Alvia made at the plea hearing; in particular, the following:
"COURT: Ms. Lopez, has anybody threatened you?
DEFENDANT: No."
The court, over defendant's objection, allows the question. So the AUSA then asks Lopez-Alvia:
"Q: Do you recall testifying under oath on February 24th, 2010, and being asked this question by the Court—by the Magistrate Judge:
Ms. Lopez, has anyone threatened you?
And you gave—did you give the following answer:
No.
Did you tell that under oath to Magistrate Judge Guerin?
DEFENDANT: Yes.
Q: Was that a lie?
DEFENDANT: How is that? I don’t understand.
Q: Well, are you—you’ve now admitted that you in fact told the judge that you were not threatened in this case. And I’m asking you was your testimony on February 24th, 2010, while you were under oath, was that a lie? Did you lie to the judge about not being threatened?
DEFENDANT: Yes."
Pretty damning, eh?
Except for one thing. Here's what the transcript of the guilty plea hearing actually says:
"COURT: In the last 48 hours have you had any drugs, prescription medication, or alcoholic beverage?
DEFENDANT: No.
COURT: Have you ever been treated for a mental condition?
DEFENDANT: No.
COURT: Ms. Lopez, has anyone threatened you or forced you to plead guilty?
DEFENDANT: No.
COURT: Has anyone made any promises to you as to what would happen in your case?
DEFENDANT: No."
In other words, it's crystal clear that Lopez-Alvia was being asked at the plea hearing -- which was entirely about the voluntariness of the plea -- that the question she was asked what whether anyone "threatened you . . . to plead guilty." It wasn't about the merits. There wasn't a contradiction at all.
When, at a break, the defense counsel got a copy of the transcript and reviewed it, counsel promptly moved for a mistrial, which the district court granted. Lopez-Alvia then moved to bar a retrial on double jeopardy grounds, which the district court denied. The Ninth Circuit affirms.
I agree with that. The AUSA didn't deliberately cause a mistrial, which is the primary situation in which you'd get a double jeopardy bar. He was trying to get a conviction. Improperly, to be sure. But that doesn't bar a retrial on double jeopardy grounds.
But I also agree not only with Judge Bea's holding, but with the other things he does as well. First, he mentions the relevant AUSA -- Jerry Alpert -- by name. Repeatedly. Second, Judge Bea notes that the district court can bar a retrial based upon its supervisory powers as a sanction for the AUSA's conduct if it finds such a sanction to be appropriate. Totally right. Good reminder. Third, the Ninth Circuit reminds the district court that as an alternative to this "strong medicine" -- or in addition -- it can discipline Mr. Alpert directly. Yep. Definitely consider it.
And then Judge Bea ends the opinion with this:
"Third and finally, we note that the district court is not the sole institution with the authority to investigate and discipline prosecutorial misconduct. Within the Department of Justice, the Office of Professional Responsibility (OPR) is required to '[r]eceive, review, investigate and refer for appropriate action allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . litigate.” 28 C.F.R. § 0.39a(a)(1). If a complaint is filed, OPR would therefore be required to review the conduct of the Department attorney. Anyone may file a complaint with the Office by sending a letter to the address listed on OPR’s website at http://www.justice.gov/opr/process.htm (last visited January 4, 2012)."
Through which Judge Bea essentially says: "I'm a judge. It's potentially awkward for me (or one of my clerks) to file a formal complaint with the OPR. But someone should do it. At which point OPR would be required to investigate. I'll get you started. Here's the website address. Send a one-sentence letter to OPR alongside a copy of my opinion. One of you will surely do that, right? Or can you not take a hint?"
So there's your assignment for today. Help a Ninth Circuit judge out, will ya?
