Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding D.C. No. 4:10-cr-00035-CKJ-JCG-1
The opinion of the court was delivered by: Bea, Circuit Judge
ORDER AND AMENDED OPINION
Argued and Submitted November 14, 2011-San Francisco, California
Filed January 12, 2012; Amended February 14, 2012
Before: John T. Noonan and Carlos T. Bea, Circuit Judges, and Donald E. Walter, Senior District Judge.*fn1
The opinion in this case was filed on January 12, 2012 and was published at Slip Op. 259. The government has filed a motion requesting that we amend the opinion to remove the name of Assistant U.S. Attorney Jerry Albert from the Federal Reporter. The government's motion is DENIED.
On the second day of trial in this drug trafficking prosecution, during the cross-examination of Defendant-Appellant Aurora Lopez-Avila, the prosecutor read back supposed testimony of Lopez-Avila from her earlier change of plea hearing. What he read back seemed to contradict Lopez-Avila's earlier statements on direct examination. Using this supposed prior testimony, the prosecutor-Assistant U.S. Attorney (AUSA) Jerry R. Albert, of the U.S. Attorney's Office for the District of Arizona-accused Lopez-Avila of having lied to the federal magistrate presiding at an earlier hearing.
But the prosecutor's quotation was only part of what he represented was a question asked the defendant under oath by the magistrate judge. It was a half-truth. Without telling the court or defense counsel, the prosecutor presented to court and counsel an altered version of the prior hearing's question and answer, and the altered version of such dialogue made it appear as though Lopez-Avila had contradicted herself on a material point, when she plainly had not. The district court naturally assumed the prosecutor had read the question and answer whole, and allowed the questioning to proceed. When the prosecutor's misrepresentation was discovered by defense counsel, he moved for a mistrial, which the court swiftly granted. The defense then moved to dismiss the indictment with prejudice, on double jeopardy grounds, but the district court denied that motion. Lopez-Avila's appeal from the denial of that motion is the legal issue before us.
We affirm the district court's denial of the motion to dismiss the indictment on double jeopardy grounds. In addition, we take several steps to ensure that AUSA Jerry Albert's actions are properly investigated, and that he is disciplined if the relevant authorities deem it proper. In so doing, we bear in mind that AUSA Albert's conduct is not directly before us, and we express no judgment as to what sanctions, if any, are proper.
Defendant Aurora Lopez-Avila attempted to enter the United States from Mexico at the Nogales Port of Entry in Arizona. Upon a tip from an informant, customs officials searched her car and found 9.7 kilograms of cocaine behind the back seat cushion. Lopez-Avila was charged by indictment with possession with intent to distribute over 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(ii)(II).
Lopez-Avila initially pleaded guilty. At the guilty plea hearing, Lopez-Avila was asked a standard set of questions by a magistrate judge, including questions put to ascertain whether Lopez-Avila was knowingly and voluntarily entering a plea of guilty to the charges against her. The questioning included the following colloquy:
COURT: In the last 48 hours have you had any drugs, prescription medication, or alcoholic beverage?
COURT: Have you ever been treated for a mental condition?
COURT: Ms. Lopez, has anyone threatened you or forced you to plead guilty?
COURT: Has anyone made any promises to you as to what would happen in your case?
One month later, during a presentence interview, Lopez-Avila stated that she had been " 'forced' to commit this offense, or she would face dire consequences." Lopez-Avila had not earlier mentioned to defense counsel that she had been threatened to transport the contraband. Her counsel forthwith moved to withdraw the guilty plea in light of this new information. Following a hearing, the court granted the motion to withdraw the guilty plea.
The case proceeded to trial. Lopez-Avila conceded that she had been transporting contraband and therefore, as the district court later stated, "the whole issue in [the] case [was] whether [Lopez-Avila] was under duress, or threatened, or forced to commit this crime."*fn3 The government's case-in-chief took approximately one-and-a-half days. During that time, according to the district court, there were "no big surprises" during the testimony of the government's ...