United States v. Ralph Collins Cawley

630 F.2d 1345 7 Fed. R. Evid. Serv. 202 UNITED STATES of America, Plaintiff-Appellee, v. Ralph Collins CAWLEY, Defendant-Appellant. No. 79-1570. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 8, 1980. Decided Sept. 8, 1980. Rehearing Denied Nov. 14, 1980. Marc D. Blackman, Ransom, Rogers & Blackman, Portland, Or., for defendant-appellant. Kenneth C. Bauman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before SKELTON, Judge, * and FARRIS and PREGERSON, Circuit Judges. FARRIS, Circuit Judge: 1 Ralph Collins Cawley appeals his conviction for possession with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 841 (a)(1). His primary contentions are 1) that he was unconstitutionally subjected to double jeopardy, 2) that evidence obtained in a warrantless search of his van should have been suppressed because his consent to the search was not voluntary, 3) that hearsay evidence concerning "tips" received by an agent of the Drug Enforcement Administration was improperly admitted, 4) that hearsay evidence concerning statements by his wife was improperly…

Ralph Collins Cawley appeals his conviction for possession with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 841 (a)(1). His primary contentions are 1) that he was unconstitutionally subjected to double jeopardy, 2) that evidence obtained in a warrantless search of his van should have been suppressed because his consent to the search was not voluntary, 3) that hearsay evidence concerning “tips received by an agent of the Drug Enforcement Administration was improperly admitted, 4) that hearsay evidence concerning statements by his wife was improperly admitted, and 5) that he was denied due process because the government failed to disclose evidence as required by Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963).

Between December 18 and December 22, 1978, a DEA agent received several tips from a confidential informant that a Mexican man was going to deliver up to a pound of heroin to Cawley, that Cawley was going to drive to Nevada in his van to pick up the heroin and that Cawley would be returning to Salem, Oregon, where he lived, with the drugs late on December 21 or early on December 22. At the request of the agent, local police…

(dissenting):

Following two days of trial testimony on April 16 and 17, 1979, the court reconvened on the morning of April 18 for argument by counsel and for the court’s jury instructions. The jury began its deliberations at approximately 11:30 a. m. Working through the lunch hour, the jury continued to deliberate until approximately 2:30 or 3:00 p. m. At that time, counsel were summoned to return to the court. The trial judge did not inform counsel why they were being summoned, but brought the jury into the courtroom and then, in the presence of counsel, read a note from the jury to the effect that the jury was deadlocked. At that point, without consultation or consent of the defendant or his counsel, the trial court, sua sponte, discharged the jury and declared a mistrial.

I am unable to conclude that the trial court exercised the “sound discretion” that Arizona v. Washington, 434 U.S. 497, 516 , 98 S.Ct. 824, 835-836 , 54 L.Ed.2d 717 (1978), requires before mistrials are declared. Moreover, I am unable to say that “manifest necessity” for the mistrial existed or that “careful consideration [was accorded defendant’s] interest in having the trial concluded in a single…