Appellate Case: 10-4197 Document: 01018527548 Date Filed: 11/04/2010 Page: 1

No. 10-4197
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IN THE U NITED S TATES C OURT OF A PPEALS FOR THE T ENTH C IRCUIT

IN RE B RIAN D AVID M ITCHELL, P ETITIONER

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(B RIAN D AVID M ITCHELL AND THE U NITED S TATES, R EAL P ARTIES IN INTEREST)
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PETITIONER’S SUPPLEMENTAL BRIEF ON QUESTIONS

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STEVEN KILLPACK
UTAH FEDERAL DEFENDER
PARKER DOUGLAS
ASSISTANT FEDERAL DEFENDER
46 West Broadway, Ste 110
Salt Lake City, UT 84101
Phone: (801) 524-4010
Fax: (801) 524-4060
Email: Parker_Douglas@fd.org
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TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF PRIOR AND RELATED APPEALS... . . . . . . . . . . . . . . . . . . . . . . . iii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The empaneling of the jury does not affect the issues raised by the Petition
nor alter in any way this court’s ability to grant relief. .. . . . . . . . . . . . . . . . 1

B. Double jeopardy rules do not affect this case in any way... . . . . . . . . . . . . . 5

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATION OF DIGITAL SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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TABLE OF AUTHORITIES

FEDERAL CASES

In re Allied Signal, Inc., 891 F.2d 967(1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

In the Matter of Balsimo, 68 F.3d 185 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Crist v. Bretz, 437 U.S. 28 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Maloney v. Plunkett, 854 F.2d 152 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Newman, 549 F.2d 240, 251 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Tafoya, 557 F.3d 1121, 1125-226 (10th Cir. 2009). . . . . . . . . . . . . . . . . . 6

United States v. Wiseman, 172 F.3d 1196 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutes, Rules and Articles

18 U.S.C. § 1651 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Crim. P. 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3

STATEMENT OF PRIOR AND RELATED APPEALS

10-4186 In Re: Brian David Mitchell (District Court No. 2:08CR00125DAK)

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I. INTRODUCTION

By order dated November 4, 2010, this Court directed the parties to file

simultaneous briefs addressing two issues: whether the jury has been empaneled in this

case, and if so, whether the petition for mandamus is moot. Approximately one hour

before this court ordered a stay of the trial, the jury was sworn and opening arguments

had begun. It is clear, therefore, that the jury has been empaneled, and the trial has, at

least nominally, begun. However, the petition is in no way rendered moot by this

circumstance. The petition for mandamus sought intervention from this court to stop the

trial proceedings below, no matter what stage they were at. The swearing-in of the jury

is, of course, a significant step in a criminal trial for the limited purpose of determining

the existence of double jeopardy, but that act in no way renders this Petition moot, and

this Court still has the power under 18 U.S.C. § 1651 to order relief.

II. ARGUMENT

A. The empaneling of the jury does not affect the issues raised by the
Petition nor alter in any way this court’s ability to grant relief.

The empaneling of a jury, of itself, does not preclude this court from reviewing the

actions of a trial court and ordering mandamus relief if appropriate, even during trial. See

Maloney v. Plunkett, 854 F.2d 152 (7th Cir. 1988) (mandamus petition granted to require

trial court to proceed with previously empaneled jury). Indeed, this court may order that a

mistrial be declared if necessary to grant the relief requested. United States v. Newman,

549 F.2d 240, 251 (2d Cir. 1977) (mandamus relief granted; district court ordered to

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declare a mistrial and reassign the case for a new trial, if defendants did not agree to

alternative remedy); see also In re Allied Signal, Inc., 891 F.2d 967, 973 (1 st Cir. 1989)

(denial of requested mandamus relief of mistrial, based in part on extensive trial

proceedings having taken place).

In addition, an appellate court’s review of a district court’s decision to deny relief

under Rule 21 is not rendered moot by trial proceedings, including jury selection or even

trial and conviction. As this Court noted in denying Mr. Mitchell’s prior petition, a trial

court’s denial of a Rule 21 transfer is reviewable on direct appeal. The only type of

pretrial legal issue which might be mooted by some later act (such as a trial) would be

where an issue loses all significance in light of the later developments. The prime

example of an issue which is rendered moot by trial is a challenge to the grand jury’s

decision to issue an indictment. Because a guilty verdict operates as a jury decision of

guilt beyond a reasonable doubt, the earlier grand jury decision regarding probable cause

is not considered after conviction, because that decision to indict has been rendered moot

by the verdict. See United States v. Wiseman, 172 F.3d 1196, 1206 (10th Cir. 1999).

Indeed, this court’s prior order denying Mr. Mitchell’s petition as “premature”

precludes any finding of mootness arising out of the fact of jury selection or

empanelment; by indicating that it wished to see the results of voir dire prior to evaluating

Mr. Mitchell’s request pursuant to Rule 21, this Court has already implicitly held that the

conduct of voir dire and jury selection itself does not preclude it from ruling on the Rule

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21 issue. The fact that a further, entirely formal process has also taken place in the course

of trial proceedings, i.e., the swearing of the jury, does not alter the legal issues presented

to this Court in any way whatsoever. To the extent that stopping a trial just after

empanelment of the jury is seen as somewhat more intrusive than stopping that trial just

prior to empanelment, it is also true that interrupting a jury trial before any evidence is

presented is a far less onerous intrusion than a later reversal of a jury verdict after a

months-long, publicity intensive trial.

Accordingly, the Rule 21 issue raised in this Petition is reviewable at any

appropriate time, and it is clear that this remains a live issue and is in no way mooted by

the mere act of seating a jury. It is as true today as it was yesterday that this Court’s

decision to grant or deny the petition should be based upon the existence of serious error

and irreparable harm. In issuing a stay, this Court determined that the costs associated

with the stay are counterbalanced by the need to review the venue issue and avoid further

unwarranted costs to the parties and irreparable harm to the defendant. See In the Matter

of Balsimo, 68 F.3d 185, 186 (7th Cir. 1995) (“The filing of a petition for mandamus will

interrupt a criminal proceeding only if the court of appeals grants a stay, which it will not

do if, in the circumstances, the cost to the criminal justice system of the delay caused by

the stay exceeds the benefit to the legitimate interest of the defendants, witnesses, and

others whose convenience might be served by a change of venue.”). That balancing issue

is exactly the same at this time as it was prior to the jury having been sworn. Neither the

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issues nor this Court’s ability to address them are changed by the ministerial act of

swearing in the jury. If the district court’s legal error in denying Mr. Mitchell’s motion

for transfer of venue is clear, as the petition shows, then relief by this Court is appropriate

to forestall any irreparable harm, both to Mr. Mitchell’s prospects for obtaining a fair trial

in another jurisdiction, as well as to the court system and to all of the parties to this case,

including the community in which it is taking place, which would arise should this

fundamentally flawed proceeding be allowed to continue.

The only issue arising out of the fact that a jury has been empaneled is whether the

balancing inherent in the equitable determination of whether irreparable harm exists such

that the nature of the relief that should be granted has been in some way altered. Since

the jury has been empaneled, the only addition to the relief requested in the petition is that

the order transferring venue as requested by Mr. Mitchell would require the district court

to halt a trial which has just barely begun, rather than halting the trial just before it has

begun. Such an order to halt the trial is not more intrusive or drastic a remedy merely as a

result of the fact that jurors have been sworn: the legal issues and the burdens inherent in

the Court’s ruling on this Petition are exactly the same just after the jury is sworn as

would be the case just before the jury is sworn. Given the timing of the jury selection

process and the filing of this Petition, it would inevitably have been the case that the jury

would have been completely chosen prior to this court’s ruling. The only act further than

this was the actual swearing of the jury. The swearing of the jury is legally significant

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only for purposes of determining when jeopardy attaches, and simply has no effect on any

of the issues presented to this Court for consideration. See Crist v. Bretz, 437 U.S. 28, 35

(1978) (“The reason for holding that jeopardy attaches when the jury is empaneled and

sworn lies in the need to protect the interest of an accused in retaining a chosen jury.”).

In addition, since no witnesses have been called and no evidence has been presented, the

trial itself has not begun, and there can be no implication that some significant step has

been taken to affect this Court’s evaluation of the issues presented in this petition, or its

ability to order relief.1

B. Double jeopardy rules do not affect this case in any way.

Mr. Mitchell concedes that if the empaneling of the jury were to take on

significance as a point of no return under double jeopardy rules, then the court’s

consideration of irreparable harm might be affected thereby. Thus, if this Court were to

order that trial proceedings in this case be halted and transferred to another venue, and, as

a result, Mr. Mitchell had a claim that he could not be retried under the prohibition

against double jeopardy, then such a result could give this court pause. However, it is

clear that if this trial, now only nominally begun, were halted at Mr. Mitchell’s express

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It is true that the government also presented its opening argument prior to the stay.
However, even if the Court were to view this as in some way significant in terms of its
consideration of the appropriateness of relief, it should be noted that, at the end of voir dire,
counsel for Mr. Mitchell strongly argued for a limited stay of the beginning of the trial for only
the limited time it would take this Court to rule on his motion for a stay. The government urged
the district court to deny that request and proceed with trial even while Mr. Mitchell’s stay
request in this Court was pending.

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request, a new trial in the new venue could not be prevented under double jeopardy rules.

When, as in this case, a mistrial is granted at the defendant’s request, a retrial is

allowed without any limitation from double jeopardy rules. In order for a retrial to be

precluded under double jeopardy, the court would have to find that the government

deliberately provoked the defendant to seek a mistrial. United States v. Tafoya, 557 F.3d

1121, 1125-226 (10th Cir. 2009). There is certainly nothing in the record to support such

a finding in this case, and Mr. Mitchell disavows any intent to argue such. Indeed, he

expressly waives any argument or rights he might have to avoid a retrial in this case on

double jeopardy grounds based on the venue transfer relief he has requested in this

petition.

CONCLUSION

Based on the foregoing, Mr. Mitchell requests that his Petition be granted.

Respectfully submitted,

STEVEN B. KILLPACK
Federal Defender

/s/ Parker Douglas

PARKER DOUGLAS
Assistant Federal Defender
46 W. Broadway Ste 110
Phone: (801) 524-4010
Email: parker_douglas@fd.org

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CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that a copy of the forgoing SUPPLEMENTAL BRIEF ON

QUESTIONS as submitted in Digital Form is an exact copy of the written document

filed with the Clerk and has been scanned for viruses with the Symantec Endpoint

AntiVirus Virus Definition File Dated 11/4/2010, rev. 2, and, according to the program, is

free of viruses.

/S/ Lacey Bagley

Utah Federal Defender Office

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing SUPPLEMENTAL BRIEF ON

QUESTIONS , was sent to the following and a copy of the digital submission in

electronic form was served via the ECF system, emailed, or mailed, postage prepaid, to

the parties named below, on this the 4th day of November, 2010.

Elizabethanne Stevens
Assistant United States Attorneys
185 South State Street, Suite 400
Salt Lake City, Utah 84111-1506

/S/ Lacey Bagley

Utah Federal Defender Office