USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1131
UNITED STATES OF AMERICA,
Appellee,
v.
DOMENIC SIMONETTI
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella, Selya and Cyr,
Circuit Judges.
______________
_____________________

Edward S. MacColl, by Appointment of the Court, with whom

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Marshall J. Tinkle and Thompson, McNaboe, Ashley & Bull, were on
___________________
________________________________
brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney,

______________________
with whom Jay P. McCloskey, United States Attorney, and Jonathan
________________
________
A. Toof, Assistant United States Attorney, were on brief for
________
appellee.
____________________
July 20, 1993
____________________

TORRUELLA,

Circuit Judge.
_____________

was charged

with conspiracy

distribute

it

in

severed

Simonetti's

to

dismiss

constitute
rights.

case

from

21

U.S.C.

that

of

his

Simonetti's objection.

the

double jeopardy

intent to

841(a)(1),

indictment,

alleging

in violation

of his

codefendant

and

Simonetti later
retrial

would

constitutional

The district court denied the motion and we affirm.

Prior to trial,

redacted

of

cocaine with

After the trial began, the district court

declared a mistrial over

moved

to possess

violation

841(b)(1)(C), and 846.

Defendant Domenic Simonetti

the government

reports of government

released to

interviews with

Simonetti

Peter Shoureas.

The reports

referred to

drug transactions between

various other individuals.

prove

that

conspired
cocaine.
Mr.

Domenic

Simonetti

with Shoureas
While

At trial,

and

Shoureas and

the government sought

(also

referred

others to

to

as

possess and

cross-examining Shoureas, Simonetti's

to

"Nick")

distribute

attorney,

Lilley, discovered that the unedited reports showed that the

conspiracy arguably
referred

involved

to as "Nick."

trafficking
Skinsacos

another individual

On different occasions

career, Shoureas apparently

and later,

defendant Domenic

who

offered

potentially

Simonetti because the defense

also

during his drug

conspired with Nicholas

Simonetti.

name was redacted in the government's reports, however.

information

was

exculpatory

Skinsacos'

This new

evidence

for

could have attempted to show

that

the references to "Nick" implicated Skinsacos, not Simonetti.

Attorney
of

Lilley moved to dismiss the case on the basis

Brady v. Maryland, 373 U.S. 83 (1963), because the government

_____
________

failed to disclose

this exculpatory evidence

addition, Lilley informed

interest

because

he

the court

previously

before trial.

that he had

represented

a conflict

Skinsacos.

In

of

The

district

court

determined

that

the

government

intentionally violate its disclosure duty by deleting

name from

the Shoureas reports,

should have

been provided

court ordered

disclosure of

court concluded that

but agreed that

to the

defense.1

the delayed disclosure did

not

Skinsacos'

the references

As

all references to

did

a remedy,

the

Skinsacos.

The

not prevent the

defense from effectively presenting its case and thus denied

motion to dismiss, finding dismissal
progeny.
1990)

the

unwarranted by Brady or its

_____

See United States v. Devin, 918 F.2d 280, 289 (1st Cir.
___ _____________
_____

(delayed

disclosure

does

not

warrant

dismissal

where

defendant can effectively use information belatedly disclosed).2

Attorney Lilley's
remained,

however.

The

conflict of interest
district

court

with Skinsacos

recognized

that

legitimate defense strategy would attempt to show that references

to "Nick"
Simonetti.

implicated

Skinsacos, not

Lilley's

present

client,

Lilley's ability to represent Simonetti was impaired,

however, because

Maine Bar Rules 3.4(e)3

and 3.6(l)(1) prohibit

____________________

1
The district court deemed the oversight careless and
specifically found no bad faith on the part of the prosecutor.
2

Simonetti does not specifically challenge this ruling.

3
Maine
provides:

Code

of

Professional

Responsibility

A lawyer shall not accept employment

adverse to a former client without that
client's informed written consent if such
-3-

Rule

3.4(e)

the

use

of

confidential

representation

information

to the detriment of

obtained

in

the prior client

or for the

benefit of another party without informed written consent

prior client.4

Consequently,

Lilley could not

defended Simonetti without a waiver

prior

of the

have vigorously

from Skinsacos.

Cf.
___

United
______

States v. Marren, 919 F.2d 61, 63 (7th Cir. 1990).

______
______
The district
days in

an effort

court granted

to resolve

Simonetti's objection,

the conflict

the court eventually

case from his codefendant5

justified declaring a

a continuance for

several

of interest.

Over

severed Simonetti's

and concluded that manifest necessity

mistrial.

Simonetti moved

to dismiss the

case on double jeopardy grounds and the district court denied the
motion, finding that
Jeopardy Clause.
The

a new

trial would not

violate the

Double

This appeal followed.

Double

Jeopardy

Clause of

the

Fifth

Amendment

____________________
new
employment involves
the subject
matter of the former employment or may
involve
the
use
of
confidential
information obtained through such former
employment.
4
Maine Code of Professional Responsibility
provides in relevant part:

Rule 3.6

(l)(1)

[A]
lawyer
shall not,
without the
informed written consent of the client,
knowingly reveal a confidence or secret
of the client; use such confidence or
secret to the disadvantage of the client;
or use such confidence or secret to the
advantage of the lawyer or
a third
person.
5
Counsel for codefendant
prejudice his client.

argued

that

further delay

would

-4-

provides that no person shall be twice placed in jeopardy for the

same offense.

Retrial after

a properly declared

mistrial does

not automatically offend the Double Jeopardy Clause.

Washington, 434 U.S. 497, 505 (1978).
__________
over defendant's
mistrial

was justified

States v.
______
Court

objection, retrial

P rez, 22
_____

has

U.S. (9

interpreted

degree" of necessity.
Samaha,
______

667 F.2d

by

224,

Where mistrial is declared

is permissible only

"manifest necessity."
Wheat.) 579 (1824).

"manifest

necessity" to

Arizona, 434
_______
228 (1st

Arizona v.
_______

U.S. at 505;

Cir.

1981).

if the

Id.;
___

United
______

The

Supreme

mean

"high

see Brady
___ _____
"The

v.

'manifest

necessity'

standard

defendant's

interests in having his case

finally decided by the

jury

selected while

time

first

public's

interest

judgments.'"
(quoting

in

Oregon
______

Wade v.
____

provides

at

fair
v.

sufficient

the same

trials

designed

Kennedy,
_______

Hunter,
______

336

prosecution bears a heavy

456

U.S.

completed

by

the

end

667,

689

in

672

just

(1982)

(1949)).

The

burden in demonstrating that "manifest

"valued right to have his

particular

Arizona, 434
_______

U.S. at 503 &

consistently

emphasized that

mechanically

or "without

confronting the trial

to

maintaining 'the
to

U.S.

684,

necessity" exists when the defendant's

trial

protection

tribunal"

n.11, 505.
the

judge."

Moreover,

standard

attention

to

is

implicated.

the Court has

be

applied

the particular

problem

Id. at 506;
___

cannot

see also Illinois v.

________ ________

Somerville, 410 U.S. 458, 462 (1973).

__________
"Our duty as a
that the

trial

judge

reviewing court is to
engaged

in

assure ourselves

'scrupulous

exercise

of

-5-

judicial discretion'

in making the decision that

a mistrial was

necessary."6

Samaha, 667
______

F.2d at 228 (quoting United States v.

______________

Jorn, 400 U.S. 470, 485 (1971)).

____
significant

whether the trial

In the past, we have considered

judge (1) considered alternatives

to a mistrial, (2) afforded counsel an opportunity to be heard on

the

issue, and

reflection.
(1st

(3)

decided precipitously

United States v.
______________

Cir. 1989); Samaha, 667

______

or after

Ram rez, 884

_______

sufficient

F.2d 1524,

F.2d at 228-29;

1528-29

see also Arizona,

________ _______

434 U.S. at 515-16.

In
scrupulously

the

present

exercised his

case,

the

district

discretion.

court

After the

interest was first discovered, the trial judge held

in

chambers to discuss possible

options:
permit

remedies.

from Skinsacos.

The judge then

conflict of

a conference

He suggested several

dismissal, declaration of mistrial,

Simonetti to retain other

judge

or continuance to

counsel or to

obtain a waiver

called a recess to

let counsel

research

the problem and review all options.

resumed,

only to be continued on several more occasions over the

next

several days.

The

district judge

alternative remedies from the parties

obtain the

waiver from Skinsacos.

Later, the hearing

specifically requested

and provided ample time to

Simonetti ultimately engaged

____________________

6
Contrary to Simonetti's suggestion, this is not a case
involving prosecutorial misconduct designed to "harass or to
achieve tactical advantage over the accused," which would warrant
review under the "strictest scrutiny" standard. See Arizona, 434
___ _______
U.S. at 508. The district court specifically found that neither

party could be faulted for failing to discover the conflict of

interest prior to trial. See United States v. Simonetti, No. 92___ _____________
_________
22, slip op. at 1-2 & n.2 (D. Me. Jan. 27, 1993).
-6-

substitute counsel who did not have a conflict of interest.

judge asked new counsel whether
whether Simonetti
attorney,
The

off.

even

considered

continue

the case

with

his

new

could be obtained from Skinsacos.

continuing the

case

to

allow new

This solution was rejected because a continuance would have

the

prejudicial to codefendant.

codefendant

Simonetti's case
the

he could suggest other remedies,

time to prepare the case from where Attorney Lilley left

been unfairly
with

to

or whether a waiver

court

counsel

wished

The

jury

and

Likewise, to proceed

later reconvene

was not viable because the

could

not

return

fair

the

jury

to

hear

judge believed that

verdict

under

such

circumstances.

In sum, the judge considered alternatives, implored the

original counsel and new counsel to proffer remedies, and devoted

ample

time and

problem, while

energy

to

resolve

the

conflict

remaining mindful of Simonetti's

in completing his

trial before

the first jury

of

interest

strong interest
impaneled.

The

court could not devise

a remedy that would resolve

the conflict

of interest and permit

the case to continue before

the original

jury.

As a

result,

mistrial was

a manifest

necessity.

The

district court therefore did not abuse its discretion by granting

the mistrial over defendant's objection.
Simonetti also
alternatives

argues that,

to mistrial,

retrial is

caused by governmental misconduct.

is

not a case in

even absent

less drastic

barred where

mistrial is

Simonetti concedes that this

which the prosecution

intentionally goaded or

-7-

provoked the mistrial.

retrial also may
by

the

See Oregon, 456

___ ______

U.S. at 679.

be barred where "egregious

prosecution

"could

be

considered,

However,

or unfair behavior"
objectively,

equivalent to an intentional effort to provoke mistrial."

States v. Larouche Campaign,
______
_________________
The inquiry into the
fact.
the

Id.
___

866 F.2d 512, 518 (1st

prosecutor's intent calls for a

as

United
______

Cir. 1989).

finding of

The district court found that the failure to disclose

references to

Nick Skinsacos

in

the redacted

reports was

inadvertent,

although careless.

See supra
___ _____

notes 1

& 6.

The

record evidence supports this factual finding.

Simonetti finally urges that we adopt the novel rule of

Hylton
______

v. Eighth Judicial Dist. Court, Dept. IV,

______________________________________

743 P.2d 622

(Nev. 1987), that

misconduct which
causes

bars retrial where

rises to the level

a mistrial.

In this case, the mistrial resulted from the

interest, not the unintentional

potentially

exculpatory evidence, see supra note 1.

___ _____

Attorney
only a
earlier.

government simply

Lilley's law

firm had

peripheral player
We thus

governmental

of "inexcusable negligence"

conflict of

circumstances, the

103 Nev. 418,

could not have

Under these

known that

represented Skinsacos,

in Simonetti's

do not confront

neglect by the prosecutor

failure to disclose

case, some

a case in

who was

five years

which inexcusable

caused the mistrial, and consequently,

have no cause to consider the wisdom of Nevada's rule.

We

affirm the
______

decision of

the district court

Double Jeopardy Clause poses no bar to a new trial.

-8-

as the