United States v. Neal T. Roberts, United States of America v. James Albert Robison

640 F.2d 225 UNITED STATES of America, Appellee, v. Neal T. ROBERTS, Appellant. UNITED STATES of America, Appellee, v. James Albert ROBISON, Appellant. Nos. 80-1626, 80-1627. United States Court of Appeals, Ninth Circuit. Submitted Sept. 22, 1980. Decided Feb. 17, 1981. Thomas Henze, Phoenix, Ariz., for Robison. William H. McLean, Phoenix, Ariz., for Roberts. W. Ronald Jennings, Asst. U. S. Atty., Phoenix, Ariz., for appellee. Appeal from the United States District Court for the Southern District of California. Before SKOPIL, POOLE and NORRIS, Circuit Judges. SKOPIL, Circuit Judge. INTRODUCTION 1 Appellants, Neal Roberts and James Robison, appeal the denial of their motion to dismiss the indictment against them. They assert that the retrial of their case was barred on double jeopardy grounds. The district court denied the motion, and the defendants filed an interlocutory appeal pursuant to Abney v. United States, 431 U.S. 651 , 662 n.8, 97 S.Ct. 2034, 2041-2042 , 52 L.Ed.2d 651 (1977). We affirm. FACTS 2 In 1977 Neal Roberts and James Robison were indicted for attempting to blow up a federal building in Arizona. The case was transferred to the Southern District of California,…

INTRODUCTION

Appellants, Neal Roberts and James Robison, appeal the denial of their motion to dismiss the indictment against them. They assert that the retrial of their case was barred on double jeopardy grounds. The district court denied the motion, and the defendants filed an interlocutory appeal pursuant to Abney v. United States, 431 U.S. 651 , 662 n.8, 97 S.Ct. 2034, 2041-2042 , 52 L.Ed.2d 651 (1977). We affirm.

FACTS

In 1977 Neal Roberts and James Robison were indicted for attempting to blow up a federal building in Arizona. The case was transferred to the Southern District of California, where the trial was held in February 1978. After the jury failed to reach a verdict, the district court declared a mistrial. In May 1978 Roberts and Robison were retried and convicted. In May 1980 this court reversed the convictions. United States v. Roberts, 618 F.2d 530 (9th Cir. 1980). This court held that the prosecutor committed reversible error when, over an objection sustained by the court, he attempted to bolster the credibility of the chief prosecution witness with evidence outside the record. Specifically, the prosecutor made the following closing argument:

Roberts, 618 F.2d…

dissenting:

I respectfully dissent.

The majority takes the position that the double jeopardy clause protects a defendant from retrial after intentional misconduct taints the original trial only if the prosecutor deliberately tried to provoke a mistrial. I do not believe that the protection afforded by the double jeopardy clause is so narrow. This case presents a prime example of intentional prosecutorial overreaching which should bar retrial even without a finding of intent to provoke a mistrial.

The prosecutor’s conduct, set forth in the majority opinion, was in blatant disregard of the stricture against vouching for a witness in appealing to the jury to return a conviction. The prosecutor knew he had a tough case; guilt or innocence turned on whether the jury believed the prosecution’s witness or the defendant. In going outside the record, exhorting the jury to believe his witness instead of the defendant because detective Sellers had been sitting in the courtroom ready to revoke the witness’s plea agreement if he lied, the prosecutor made a mockery of the rules of fair jury argument. Moreover, he completed his transgression in disregard of an admonition by the trial…