United States Court of Appeals For the First Circuit

No. 20-1073

UNITED STATES,

Appellee,

v.

RAYMOND ALEXANDER GARRAWAY,

Defendant, Appellant.

No. 20-1074

UNITED STATES,

Appellee,

v.

CORDWELL NATHANIEL BENNETT,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Lynch, Lipez, and Barron, Circuit Judges.

José B. Vélez Goveo for appellants. José B. Vélez Goveo, with whom Vélez & Vélez Law Office were on brief, for appellant Raymond Alexander Garraway. Jorge E. Rivera-Ortíz on brief for appellant Cordwell Nathaniel Bennett. Javier Alberto Sinha, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and Francisco A. Besosa-Martinez, Assistant United States Attorney, were on brief, for appellee.

November 15, 2021 LYNCH, Circuit Judge. Raymond Alexander Garraway and

Cordwell Nathaniel Bennett, convicted at trial for possession with

intent to distribute marijuana, successfully moved for a mistrial

on the basis of improper arguments made by the prosecution at

closing. The government now seeks to retry them, and Garraway and

Bennett moved to dismiss, arguing that retrial would violate the

Double Jeopardy Clause. The district court denied the motion to

dismiss. United States v. Trapp, No. 16-159,

, at

*1 (D.P.R. Dec. 18, 2019). Because the district court did not

abuse its discretion in finding that the prosecution did not

intentionally provoke a mistrial, we affirm.

I.

On March 1, 2016, a U.S. Coast Guard law enforcement

detachment aboard a Dutch naval ship came across an eighty-foot

fishing vessel while on routine patrol in the Caribbean. The Coast

Guard team captured video of the crew of the fishing vessel

jettisoning objects overboard.

The Coast Guard deployed two rigid-hulled inflatable

boats, one to intercept the fishing vessel and one towards the

debris. The boat dispatched in the direction of the jettisoned

debris recovered nineteen bales of suspected narcotics. Samples

from the bales were tested and found to be marijuana. In total,

the marijuana bales weighed 399.4 kilograms.

- 3 - The second team questioned the individuals aboard the

fishing vessel. The Coast Guard team took samples from the fishing

vessel which were tested using an Ion Scan 400B device, which

detects the presence of narcotics. No narcotics were detected.

The Coast Guard team found no contraband aboard the fishing vessel.

Two of the bales that had been recovered preliminarily tested

positive for marijuana, and the Coast Guard took the crew into

custody. On March 16, 2016, Garraway and Bennett, along with the

third man aboard the fishing vessel, Michael Anthony Trapp, were

indicted on two counts of possession with intent to distribute 100

kilograms or more of marijuana.

Their jury trial began on September 4, 2018. The

prosecution introduced into evidence the video taken by the Coast

Guard of objects being thrown out of the fishing vessel, testimony

of a Coast Guard officer that the marijuana bales were recovered

near the fishing vessel and that there were no other vessels in

the area, and testimony that rope was found on the fishing vessel

which appeared identical to the rope used to bind the bales of

marijuana. The defense theory was that the bales of marijuana

recovered by the Coast Guard had never been aboard their fishing

vessel. The defendants pointed to the Ion Scan results which

showed that marijuana was not detected aboard the fishing vessel,

as well as the fact that the bales of marijuana were found between

five and seven nautical miles from the fishing vessel. They also

- 4 - introduced testimony that the seas had been rough, and that they

were throwing garbage and debris, not bales of marijuana, off the

fishing vessel because it endangered them to have loose debris

rolling around the deck.

The prosecution and defense entered into several factual

stipulations concerning the chain of custody of the bales of

marijuana and the details of the Ion Scan testing and results.

The defense relied on these stipulations to establish the negative

Ion Scan results and where the bales of marijuana were found. The

stipulations contained no information about whether or how

wrapping the drugs would affect the accuracy of the Ion Scan

results, and no evidence to that effect was presented. During the

closing argument rebuttal, the prosecution argued to the jury that

the wrappings on the bales of marijuana prevented the Ion Scan

from detecting its presence on the fishing vessel. The jury

convicted.

The defendants moved for an acquittal and for a mistrial.

The district court denied the motion for acquittal. However, it

granted the motion for mistrial on the basis of the prosecution's

statements about the Ion Scan results being affected by the

wrapping on the marijuana. The district court found the statements

were not a permissible inference to argue from the evidence

introduced at trial. It found that the prosecution made the

statement deliberately, though not in bad faith, and that the court

- 5 - could not be confident, given the totality of the circumstances,

that the prosecution's argument did not affect the jury's decision

to convict. The court did note in a footnote that there was no

double jeopardy bar to retrial, finding that "there is no

indication that in making the statement in question, the prosecutor

had the intent to goad defendants into moving for a mistrial or to

harass them out of fear of acquittal due to insufficient evidence

in order to marshal a more favorable opportunity to convict the

defendants in a subsequent trial."

Nevertheless, when the prosecution began to retry the

defendants, the defendants filed a joint motion to dismiss for

violation of the Double Jeopardy Clause. They argued that the

prosecution deliberately made the improper statement at closing in

order to goad the defendants into moving for a mistrial, so that

the prosecution would have a better chance at convicting in a

subsequent trial.

The district court denied the motion, finding that the

prosecution did not intend to provoke a mistrial. In making its

decision, the district court also concluded that "this is not a

case where the evidence led a reasonable person to conclude that

acquittal was likely at the time of the objected comment, and that

misconduct had to be engaged in to prevent it."

- 6 - II.

The standard of review applicable to a motion to dismiss

on double jeopardy grounds following a mistrial is abuse of

discretion. United States v. Toribio-Lugo,

(1st

Cir. 2004). The district court's findings of fact are reviewed

for clear error, while conclusions of law are reviewed de novo.1

The Double Jeopardy Clause, U.S. Const. amend. V, cl. 2,

"protects not only against double punishment but also against being

'twice put to trial for the same offense.'" United States v. Suazo,

(1st Cir. 2021) (quoting Abney v. United States,

(1977)). Not all reprosecution is barred, and

mistrials are a common exception. See Toribio-Lugo,

. Retrial is, however, barred after a mistrial where "the

conduct giving rise to the successful motion for a mistrial was

intended to provoke the defendant into moving for a mistrial."

Oregon v. Kennedy,

(1982); see also United States

v. Gary,

(1st Cir. 1996), abrogated on other

grounds by Johnson v. United States,

(2015).

Garraway and Bennett argue that the district court erred

in finding that the prosecution did not intend to provoke them to

1 Because the defendants were tried together, raise the same issues, and make the same arguments in their briefs, we address their arguments together. The third co-defendant, Michael Anthony Trapp, is not involved in this appeal.

- 7 - move for a mistrial by making improper arguments at closing. They

contend that this intent can be inferred from what they

characterize as a pattern of overreaching with respect to the

stipulations by the government and a weak response to the

defendants' motion for mistrial, the timing of the improper

statement at a point when the defendants could no longer rebut it,

and what they consider the overall weakness of the government's

case. They also point out that the government now seeks to

introduce new expert testimony while also compelling the

defendants to enter into the same stipulations as in the first

trial, which they argue is evidence that the prosecution

intentionally threw the first case in order to make a stronger

case on retrial.

The defendants do not challenge the legal standard the

district court used to decide their motion; rather, they challenge

only the district court's finding that the prosecution did not

intend to provoke a mistrial. This finding is not clearly

erroneous.

The district court determined that, at the time of

closing argument, an acquittal was not likely. Though defendants

characterize the prosecution's case as "weak," the trial court's

determination is supported by the record. The prosecution

introduced video of the defendants throwing debris out of the

fishing vessel. The prosecution showed that the Coast Guard had

- 8 - recovered nineteen bales of marijuana from the water, and that

there were no other vessels in the vicinity. Perhaps most damning,

the prosecution introduced testimony that the rope used to bind

the bales was the same as rope found on the fishing vessel. The

defendants introduced evidence to try to neutralize the

prosecution's case, including offering an alternative explanation

for why the crew was jettisoning debris from the fishing vessel

and emphasizing the Ion Scan's negative findings. However, given

the substantial case mounted by the prosecution, the record

supports the district court's assessment of the likelihood of

acquittal.

In light of the district court's supportable finding

that acquittal was not likely, the defendants' arguments about the

timing of the statement also fail. Nothing about the timing of

the improper argument suggests that the district court's finding

was clearly erroneous and nothing in Kennedy supports a rule that

improper arguments made late in the trial are necessarily intended

to provoke a mistrial. See United States v. Jozwiak,

(7th Cir. 1992) ("Only a prosecutor who thinks the trial

going sour -- or who seeks to get just far enough into the trial

to preview the defense -- would want to precipitate a mistrial.").

The defendants' argument that the government has

benefitted from previewing their arguments at trial and

strengthening its own case on retrial ignores that the defendants

- 9 - benefit similarly from the declaration of a mistrial. See United

States v. Garske,

(1st Cir. 2019) (noting that

"the purported advantage works both ways . . . . [as] the

defendants have previewed the government's case and are now better

positioned to defend against it"). The government, which bears

the burden of proof, faces the risk at retrial that witnesses'

memories may dull or witnesses may become unavailable, in addition

to the need to expend limited resources to retry an entire case.

See United States v. Lun,

(9th Cir. 1991) ("'If

the defendant consents to a mistrial, the prosecutor must go to

the time, trouble, and expense of starting all over with the

criminal prosecution.' Witnesses may disappear or forget their

testimony after the long delay." (citation omitted) (quoting

Kennedy,

(Stevens, J., concurring))); see also

Jozwiak,

("Trying one defendant twice means, for

a prosecutor with limited resources, letting some other defendant

go.").

The defendants also argue the prosecution "barely

objected" to their motion for a mistrial. Again, this is not so.

The trial court found that the government had made a "comprehensive

response." This too is supported by our review of the government's

response to the defendants' motion for mistrial and is not clearly

erroneous. Though the district court ultimately disagreed, the

government defended its statements at closing as reasonable

- 10 - inferences from the evidence it presented at trial and did not

make merely a pro forma response to the defendants' motion. After

overseeing the entire trial and considering the defendants' motion

for a mistrial and the prosecution's opposition, the district court

specifically found that the prosecutor believed he was arguing a

permissible inference from the evidence.

In all, the record supports the government's contention,

and the district court's finding, that the government did not

intentionally provoke a mistrial. The government presented a

strong case at trial. At the point before the prosecution made

its closing rebuttal argument, an acquittal was not likely. The

prosecution vigorously opposed the defendants' motion for a

mistrial. Any opportunity the prosecution will have to adjust its

case in response to what occurred at the first trial will also be

afforded to the defendants.

As the district court pointed out in denying the

defendants' double jeopardy motion, it "presided over the trial,"

affording it a better vantage point than ours to assess the intent

of the prosecution. Absent clear evidence from the record that

the district court's finding as to the intent to provoke a mistrial

is unsupported, we will not supplant its judgment with our own.

No such evidence exists here; rather, the record amply supports

the district court's decision.

- 11 - III.

The order of the district court is affirmed.

- 12 -