23-6336-cr United States v. Montilla

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of December, two thousand twenty-four.

PRESENT: GUIDO CALABRESI, SARAH A. L. MERRIAM, Circuit Judges, JED S. RAKOFF, District Judge. *

__________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6336-cr

ABEL MONTILLA, a/k/a Coche Bomba,

Defendant-Appellant,

* Judge Jed S. Rakoff of the United States District Court for the Southern District of New York, sitting by designation. DANIEL RODRIGUEZ, a/k/a Sealed Defendant 1; GLORIA RODRIGUEZ GONZALEZ, a/k/a Patricia Sanchez, a/k/a Sealed Defendant 1; ANABEL COLON REYES, a/k/a Sealed Defendant 1; DEEJAY WHITE; JASON MARTINEZ, a/k/a Sealed Defendant 1, a/k/a Jay; PEDRO GUZMAN MARTINEZ, a/k/a Peter; JORGE MIRANDA- SANG, a/k/a Chinito; LUIS GOMEZ ORTIZ, a/k/a Kike; ROBERTO JUAN NIEVES PEREZ, a/k/a Robert; ERIC MANUEL FERNANDEZ COLON, a/k/a Erito; OMAR LOPEZ CASTRO, a/k/a Sealed Defendant 1, a/k/a Cache; ESTEBAN VARGAS SANJURJO,

Defendants. __________________________________________

FOR DEFENDANT-APPELLANT: Bobbi C. Sternheim, Law Offices of Bobbi C. Sternheim, New York, NY.

FOR APPELLEE: Juliana N. Murray, Ryan B. Finkel, Nathan Rehn, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Castel, J.).

UPON DUE CONSIDERATION, the March 22, 2023, judgment of the District

Court is AFFIRMED.

Defendant-appellant Abel Montilla appeals from a final judgment of the District

Court convicting him, after a jury trial, of one count of conspiracy to distribute and to

possess with intent to distribute at least five kilograms of cocaine in violation of 21

(a)(1), (b)(1)(A), and 846. The District Court sentenced Montilla principally

to 204 months of imprisonment. We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal, to which we refer only as necessary to

explain our decision to affirm.

I. Background

On July 22, 2021, Montilla and three co-conspirators were indicted on one count

of conspiracy to distribute and to possess with intent to distribute at least five kilograms

of cocaine in violation of

(a)(1), (b)(1)(A), and 846. Montilla proceeded

to trial on the sole charge of the indictment. His first trial commenced on September 26,

2022. On the third day of trial, September 28, 2022, the government anticipated calling

one of its cooperating witnesses, Pedro Guzman Martinez (“Guzman”). Guzman,

however, tested positive for COVID-19 while at the courthouse waiting to testify. Based

on the Southern District of New York’s then-effective COVID-19 protocols, the earliest

Guzman could re-enter the courthouse was October 11, 2022.

On the evening of September 28, 2022, the government filed a letter requesting

“that the Court adjourn trial” until Guzman could “enter the courthouse, so that [he] may

testify in person.” Montilla App’x at 26. The government explained, in relevant part, that

it had given “serious consideration as to whether it could entirely forego [Guzman’s]

testimony,” and concluded that it could not because the testimony would “bear on the

Government’s ability to prove that the defendant knowingly joined the conspiracy,” and

similar testimony could not be introduced through other witnesses.

. The

government represented that it had discussed the request for an adjournment with

3 Montilla’s counsel, who “conveyed that the defendant d[id] not object to” the request.

.

On September 29, 2022, the District Court reconvened trial and addressed the

government’s request for an adjournment outside the presence of the jury. The District

Court heard from both the government and Montilla’s counsel about the “available

options” for proceeding. Montilla App’x at 116. The government asserted that a mistrial

was not “necessary” and “that a continuance would be appropriate.”

. In

response, defense counsel represented that Montilla was “not in agreement with the

government’s request for an adjournment of the trial,”

and argued that “the

appropriate course is to declare a mistrial given that its [sic] the government’s witness,”

. The government then explained on the record what a mistrial would mean for

Montilla, specifically “that the case would be retried in its entirety,” and that “[i]t might

take sometime [sic] for that to be scheduled.”

. Counsel for Montilla confirmed

that he had discussed with his client the fact that he would “continue to be detained until

the date of the trial which is a date yet not known.”

.

After explaining the legal standard, considering various factors and the available

alternatives, and explaining the potential prejudice to Montilla, the District Court granted

Montilla’s request for a mistrial. In doing so, the District Court repeated that the case

would be “retried.”

. Neither the government nor Montilla objected to this

ruling, and after the jury was discharged, both counsel and the Court conferred to set a

new trial date. In December 2022, Montilla was retried and convicted. Montilla timely

appealed.

4 II. Discussion

On appeal, Montilla contends that (1) the District Court abused its discretion in

granting a mistrial because there was no manifest necessity for a mistrial based on the

unavailability of what Montilla deems “a non-essential” government witness, and (2) his

retrial violated the Double Jeopardy Clause. Appellant’s Br. at 15.

We review the District Court’s decision “to declare a mistrial for abuse of

discretion.” United States v. Razmilovic,

(2d Cir. 2007).

“The Double Jeopardy Clause of the Fifth Amendment generally protects a

defendant from successive prosecutions for the same offense.” United States v. Ware,

(2d Cir. 2009). But “where the original trial has not been completed

because the defendant himself moved for a mistrial, he is deemed to have deliberately

elected to forgo his valued right to have his guilt or innocence determined before the first

trier of fact.”

(citation and quotation marks omitted); see also Razmilovic,

(“When a defendant moves for or consents to a mistrial, the Double Jeopardy

Clause usually imposes no bar to retrying that defendant.”). A “narrow exception” to this

rule exists, however, where the government “intended to ‘goad’ the defendant into

moving for a mistrial.” Oregon v. Kennedy,

(1982). This

exception is “intended to prevent the prosecution from forcing a mistrial when things are

going badly for it, in the hope of improving its position in a new trial.” United States v.

GAF Corp.,

(2d Cir. 1989).

Under the circumstances of this case, we find no violation of the Double Jeopardy

Clause. Montilla explicitly requested a mistrial, and there is no evidence in the record that

5 the conduct of the government goaded his request. To the contrary, the government

opposed a mistrial. Throughout, Montilla retained “primary control” of deciding whether

to “continue on trial,” or “to end that trial in light of the taint in the proceedings,” which

is “[t]he key double jeopardy policy to be protected when there has been prosecutorial or

judicial error.” United States v. Pavloyianis,

(2d Cir. 1993). Thus,

Montilla’s first trial did not impose a double jeopardy bar to his retrial in December 2022.

See United States v. Huang,

(2d Cir. 1992) (“[T]he Double Jeopardy

Clause guards against government oppression; it does not relieve a defendant of the

consequences of his voluntary choice to accept a mistrial.”).

We do not reach the issue of “manifest necessity” because Montilla “elected to

terminate the proceedings against him,” and, therefore, “the ‘manifest necessity’ standard

has no place” in our analysis. Kennedy,

; accord Maula v. Freckleton,

(2d Cir. 1992) (per curiam) (“No ‘manifest necessity’ analysis is required . . .

when a defendant requests a mistrial, or consents to one, unless the government or the

court acts in a manner intended to provoke a defendant to move for a mistrial.” (citations

omitted)).

We have considered Montilla’s remaining arguments and consider them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the District Court

is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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