1

08-5797-cr 

USA v. Bright

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 0.23 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 14 day of December, two thousand nine. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROSEMARY S. POOLER,

9 BARRINGTON D. PARKER,

10 Circuit Judges.

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 08-5797-cr

17

18 SIDNEY BRIGHT

19 Defendant-Appellant.

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21

22 APPEARING FOR APPELLANT: Marvin E. Schecter, Law Offices

23 of Marvin E. Schecter, New York,

24 New York. 

25
2

1 APPEARING FOR APPELLEE: Jillian B. Berman, Joan M.

2 Loughnane, Jesse M. Furman,

3 United States Attorney’s Office

4 for the Southern District of New

5 York, New York.

6

7 Appeal from an order of the District Court for the

8 Southern District of New York (Pauley, J.).

9

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11 AND DECREED that the order of the district court be UPHELD. 

12

13 Defendant-appellant Sidney Bright appeals from a

14 November 24, 2008 order by the U.S. District Court for the

15 Southern District of New York (Pauley, J.) denying a motion

16 to dismiss an indictment against him on double jeopardy

17 grounds. We assume the parties’ familiarity with the

18 underlying facts, the procedural history, and the issues

19 presented for review.

20

21 This Court has jurisdiction over an interlocutory

22 appeal under 28 U.S.C. § 1291 when an appellant claims that

23 a prosecution violates his double jeopardy rights. United

24 States v. Pavloyianis, 996 F.2d 1467, 1472 (2d Cir. 1993). 

25 This Court reviews “de novo as a question of law the denial

26 of a motion to dismiss an indictment on Double Jeopardy

27 grounds.” United States v. Estrada, 320 F.3d 173, 180 (2d

28 Cir. 2003).

29

30 A mistrial in a defendant’s initial trial does not

31 generally impose a double jeopardy bar if a defendant

32 requests the mistrial or consents to the declaration of the

33 mistrial. Maula v. Freckleton, 972 F.2d 27, 29 (2d Cir.

34 1992); see also United States v. Huang, 960 F.2d 1128, 1133

35 (2d Cir. 1992) (“[T]he Double Jeopardy Clause guards against

36 government oppression; it does not relieve a defendant of

37 the consequences of his voluntary choice to accept a

38 mistrial.”).

39

40 Here, Bright consented to the mistrial. When the issue

41 of the potential conflict resurfaced on the third day of the

42 trial, the judge ensured that the defendant understood what

43 was going on and appointed new counsel to consult with him

44 about the conflicts issue. After a break in the

45 proceedings, the new counsel confirmed that Bright

46 understood the issues and stated that Bright did not wish to

47 waive his right to unconflicted counsel. The court directly
3

1 asked Bright “do you understand as a consequence of . . .

2 the absence of your consent, that I will have to declare a

3 mistrial in this case; do you understand that?” Bright

4 answered affirmatively. 

5

6 Bright’s argument that he lacked representation at this

7 stage (and so could not have properly consented) is

8 unsupported by the record. Bright was represented by

9 counsel at all times. The court appointed Richard Jasper

10 “as counsel for Mr. Bright and would ask that [he] confer

11 with him regarding this matter.” The court did not relieve

12 Jasper as “counsel for the defendant in connection with the

13 Curcio matter” until after the mistrial was granted.

14 Furthermore, Bright’s original attorney still represented

15 him until relieved at a conference the following day. His

16 original attorney spoke on his behalf at later points in the

17 mistrial discussion.

18

19 The totality of the circumstances confirm Bright’s

20 consent. United States v. Goldstein, 479 F.2d 1061, 1067

21 (2d Cir. 1973) (“Consent [to a mistrial] need not be

22 express, but may be implied from the totality of

23 circumstances attendant on a declaration of mistrial.”). 

24 This Court has held that if a defendant has a chance to

25 object to a mistrial, but chooses not to do so, then a court

26 can infer consent. United States v. Beckerman, 516 F.2d

27 905, 909 (2d Cir. 1975); see also Maula, 972 F.2d at 29

28 (“Inferring consent from counsel’s failure to object in this

29 case is not only consistent with the requirements of the

30 double jeopardy clause; it also tracks the general principle

31 applied in other areas of trial practice, when failure to

32 object to a ruling, which at the time it is made or proposed

33 could readily be changed, will bar future attempts to review

34 that ruling.”). Here, Bright’s counsel expressly informed

35 the court that he had no objection to the mistrial. The

36 district court asked, “I believe that I’m led to only one

37 conclusion here, and that is the need to declare a mistrial

38 in this case. Does any party see it any differently.” 

39 Avraham Moskowitz--Bright’s original counsel--replied, “No

40 your honor.”

41

42 Given Bright’s consent to the mistrial, double jeopardy

43 could not attach unless the prosecution intentionally

44 provoked the mistrial. Oregon v. Kennedy, 456 U.S. 667, 673

45 (1982); United States v. Millan, 17 F.3d 14, 18 (2d Cir.

46 1993). This constitutes a “narrow” exception to the general

47 rule that a defendant’s consent to a mistrial lifts the
4

1 double jeopardy bar. Kennedy, 456 U.S. at 673; Millan, 17

2 F.3d at 18. For this exception to apply the prosecution

3 must intend to provoke a mistrial “so as to afford the

4 prosecution a more favorable opportunity to convict the

5 defendant.” United States v. Dinitz, 424 U.S. 600, 611

6 (1976). Mere bad faith, harassment, or gross negligence by

7 a prosecutor do not similarly override a defendant’s

8 consent. Id.; Huang, 960 F.2d at 1133 (“The applicability

9 of this exception turns squarely on the judge’s or

10 prosecutor’s intent.”).

11

12 Bright argues that any consent he gave was provoked by

13 the prosecution, which desired to force a mistrial. There

14 is insufficient evidence to support this allegation.

15

16 We accept a district court’s finding that the

17 prosecution did not intentionally act to provoke a mistrial

18 unless such a finding was “clearly erroneous.” Millan, 17

19 F.3d at 18. The district court here did not explicitly

20 discuss the defendant’s argument that the prosecution forced

21 a mistrial to improve its chances in a second trial, however

22 it implicitly found that the prosecution did not do so. The

23 district court’s opinion lays out the proper legal standard;

24 it quotes Maula, 972 F.2d at 29, for the proposition that if

25 the defendant consents to the mistrial, double jeopardy does

26 not bar a second prosecution “unless the government or the

27 court acts in a manner intended to provoke a defendant to

28 move for a mistrial.” Id. Given that it was aware of the

29 proper legal standard and the defendant’s argument that the

30 prosecution provoked the mistrial, we infer that the

31 district court found that the prosecution did not goad the

32 defendant into consenting to a mistrial.

33

34 The record supports the district court’s finding that

35 the prosecution did not intentionally provoke a mistrial. 

36 The prosecution’s initial position was that the trial could

37 go forward and that the conflict was theoretical, not

38 actual. The prosecution did not advocate for a mistrial and

39 believed any conflict that existed could be waived. The

40 prosecution offered an alternative solution that might have

41 allowed the first trial to proceed (allowing an unconflicted

42 attorney to cross-examine a witness)--an expedient that the

43 court rejected. Furthermore, none of the alleged flaws in

44 the prosecution’s case that the defendant argues motivated

45 the prosecution to prompt the mistrial would be remedied by

46 a second trial. The prosecution’s decision to raise the

47 potential conflict is easily accounted for by a desire to
5

1 avoid a successful appeal by Bright on the grounds that his

2 conflicted counsel was unable to vigorously attack a key

3 government witness. See generally Wheat v. United States,

4 486 U.S. 153, 159-62 (1988) (exploring when possibly

5 conflicted attorneys no longer constitute effective

6 counsel).

7

8 Since Bright consented to the mistrial and the

9 prosecution did not intentionally provoke a mistrial, the

10 district court’s order denying defendant’s motion to dismiss

11 is upheld.

12

13

14 FOR THE COURT:

15 CATHERINE O’HAGAN WOLFE, CLERK

16 By:

17

18

19 ___________________________