Opinion
CIVIL ACTION NO. 03-10859-GAO
November 25, 2003
MEMORANDUM AND ORDER
Petitioner Jorge A. Gonzalez is currently awaiting trial in the Boston Municipal Court ("BMC") on criminal complaints charging him with distribution of a class A controlled substance and distribution of the substance within 1,000 feet of a school. He claims that he was already "put to trial" on these charges on June 8, 2000, and that subjecting him to trial again on these complaints will violate the Fifth Amendment's guaranty against double jeopardy. Gonzalez seeks a writ of habeas corpus releasing him from the custody of the justices of the BMC and enjoining any further prosecution of the criminal complaints against him. For the reasons discussed below, the petition lacks merit and it is dismissed.
A. Factual Background
On March 3, 2000, the Commonwealth of Massachusetts brought criminal complaints in the BMC against Gonzalez for the distribution of heroin, a class A controlled substance, and for the distribution of the heroin within 1,000 feet of a school, in violation of Mass. Gen. Law ch. 94C, §§ 32 and 32 J. At a pretrial conference on May 1, 2000, the parties signed a pretrial conference report stipulating that the Commonwealth would provide evidence concerning drug analysis and school distance measurements to defendant's counsel by May 22, 2000. Near the compliance date, the word "unagreed" also was written.
Gonzalez was on probation at the time of his arrest, and a probation surrender hearing was scheduled for June 8, 2000, with a trial on the merits of the new complaints to follow. On June 8, 2000, both parties reported that they were "ready for trial." That morning, during the pretrial probation surrender hearing, the prosecution offered evidence that had not previously been disclosed to the defendant, including drug analysis certificates attesting to the chemical nature of the substances seized at the crime scene. The presiding judge noted that the testimony offered by three police officers was conflicting and failed to connect Gonzalez to the seized drugs. Consequently, the judge found Gonzalez had not violated his probation. Gonzalez waived his right to a jury trial, and a trial on the merits of the pending criminal complaints was scheduled for that afternoon.
Just before trial, defense counsel filed a motion in limine seeking to exclude all the evidence concerning the school zone measurements and drug analysis because the prosecution had not disclosed this evidence by May 22, 2000, as the pretrial conference report apparently required, or even before June 8, the day of trial. The defense argued that the prosecution had thereby deprived Gonzalez of the chance to conduct his own "independent investigation." Although the prosecutor then proffered all the evidence to the defense, the judge allowed the defendant's motion and said to the prosecutor: "You can't have a situation on the day of trial, [where] discovery hasn't been turned over, especially this crucial, crucial type of discovery which goes to the heart of the school zone charge which is enhancing of a significant nature [if] this defendant [is] found guilty of the underlying charge. . . ." The judge added: "I've told your office, not you specifically, but your office time and time again and over and over until I'm talking like I'm hoarse that discovery in these matters is crucial. Discovery in every criminal case is crucial and [is] to be turned over in a timely manner." Respondent's Supplemental Materials (Docket No. 12), Attach. 2, Hearing Transcript, June 8, 2000, at A. 103, A. 104. In light of the court's decision to exclude the government's evidence, the prosecution informed the court that it was not prepared to go forward with the trial. Nevertheless, the judge directed the parties to proceed to trial later that day.
When the case was called for trial, the prosecutor announced that, because of the exclusion of the evidence as the result of the allowance of the defendant's motion in limine, she was not prepared to go forward with the trial. Defense counsel then moved for a required finding of not guilty. The prosecutor objected and asked the court instead to dismiss the case for noncompliance with discovery obligations. The trial judge observed that a witness had to be sworn before jeopardy would attach. Thereupon, defense counsel called the defendant's daughter as a witness and she testified that the defendant was her father. The defense again moved for a required finding of not guilty, and the judge granted the motion over the prosecutor's objection.
There is no suggestion in the record that the defendant's daughter had any relevant information about any issue presented by the criminal complaints before the court. Her entire testimony was as follows:
Because the prosecution could not appeal the "not guilty" finding, the Commonwealth petitioned the Massachusetts Supreme Judicial Court ("SJC") to review Gonzalez's trial pursuant to that court's power of general superintendence over inferior courts under Mass. Gen. Lawsch. 211, § 3. On July 1, 2002, the SJC ruled that the trial court had erred in excluding the Commonwealth's evidence regarding the school zone measurements and drug analysis. Commonwealth v. Gonzalez, 771 N.E.2d 134, 138 (Mass. 2002). The SJC reasoned that the notation "unagreed" in the pretrial conference report indicated that there had not been a clear date for compliance with the discovery obligation.Id. The SJC noted that defense counsel had stated that he was ready for trial, notwithstanding the lack of discovery, and never sought a continuance to evaluate the just-disclosed information or to conduct an "independent investigation" of the case. Id. The SJC further concluded that "there is no showing that the drug analysis was wrong or the measurements were inaccurate," that the Commonwealth had acted intentionally or in bad faith, or that the Commonwealth's discovery omission had prejudiced the defendant in any substantial way.Id. Finally, the SJC ruled that the trial court should have invoked a less severe remedy than excluding crucial evidence and forcing the Commonwealth to proceed to trial without that evidence.Id.
In his pleadings before the SJC, Gonzalez asserted that, after his jury waiver was allowed, he had "a constitutional right, a double jeopardy interest, to be tried by the judge he selected as the trier of fact in his case." Respondent's Supplemental Materials (Docket No. 12), Attach. 3, Def — Resp.'s Opp'n to Commw.'s Pet. for Relief, at 44. The SJC held that double jeopardy had not attached for the purposes of the Fifth Amendment because there was no trial on the merits and no risk of Gonzalez's conviction. Gonzalez, 771 N.E.2d at 140. Accordingly, the SJC set aside the finding of "not guilty," and directed that "the case stand on the existing complaint for further proceedings in the Boston Municipal Court." Id. at 142.
Gonzalez timely petitioned the United States Supreme Court for certiorari to review the judgment of the SJC. The Supreme Court denied certiorari on April 7, 2003 and the petition for a writ of habeas corpus followed a month later.
On May 8, 2003, the same day Gonzalez filed his petition, he also filed a Motion to Stay Proceedings in the Municipal Court of Boston, and a Motion for Restraining Order and Preliminary Injunction. In order to permit adjudication of the merits of Gonzalez's habeas petition, this Court issued an order enjoining the respondents from prosecuting Gonzalez before the BMC for the charges alleged in the criminal complaints. By separate order, the Court also set July 18, 2003, as the deadline for respondents to file an opposition to Gonzalez's petition. The respondents failed to file a timely opposition to the petition, and on July 23, 2003, Gonzalez served the respondents with a Motion for Judgment on the Pleadings Pursuant to Rule 12(c). The next day, the respondents filed their opposition to the petition. Gonzalez subsequently filed his Motion for Judgment on the Pleadings on July 28, 2003. Finally, on August 18, 2003, the respondents filed a motion to dismiss the petition for failure to exhaust applicable state court remedies. A hearing on all pending motions was held on October 2, 2003.
B. Jurisdiction
In his petition, Gonzalez asserted that the Court's jurisdiction is predicated on 28 U.S.C. § 2241, 2254, and 1343(a)(3). He now claims that § 2254 is inapplicable because he is not in custody pursuant to a judgment of a state court. The Commonwealth maintains that the Court's review of the petition is governed by § 2254. Although in light of the disposition on the merits of the petition, the controversy is inconsequential, the Court agrees with the petitioner.
Section 2241 offers habeas relief to a person who "is in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2241(c)(3), while § 2254 applies only to persons "in custody pursuant to the judgment of a State court. . . ." 28 U.S.C. § 2254(b)(l). A habeas petitioner awaiting trial on a criminal complaint is generally considered to be not in custody pursuant to a state court judgment. See Jacobs v. McCaughtry, 251 F.3d 596, 597-98 (7th Cir. 2001) and cases cited therein; see also Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) ("Pretrial petitions are properly brought under § 2241.").
C. Exhaustion
Section 2241 does not have an express exhaustion requirement, but the general rule requiring the exhaustion of state court remedies applies to all but the exceptional case. See Benson v. Super, Ct. Dep't of Mass., 663 F.2d 355, 358 (1st Cir. 1981). The respondents argue that the petition should be dismissed because Gonzalez has failed to exhaust his available state court remedies. In his petition, Gonzalez asserts that once he waived his right to a jury trial in favor of a bench trial, he had a valued right to have his trial completed by a particular tribunal and jeopardy attached at that time. The respondents contend that Gonzalez did not raise this argument before the SJC, and the SJC accordingly did not analyze this issue. However, Gonzalez did present this argument on pages 44-45 of his Opposition to Commonwealth's Petition for Relief Pursuant to G.L. c. 211, § 3, which was submitted to the SJC. As this claim was presented to and rejected by the SJC, and certiorari was denied by the United States Supreme Court, Gonzalez has raised this claim before and has taken it as far as he can in the state courts. Accordingly, the respondents' motion to dismiss is denied.
D. Double Jeopardy
The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal." Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 306 (1984). The Clause "forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding."Burks v. United States, 437 U.S. 1, 11 (1978). This prevents the State from wearing down the defendant with successive prosecutions.Lydon, 466 U.S. at 306. However, "[t]he Double Jeopardy Clause is not an absolute bar to successive trials." Id. at 308. While the general rule is that jeopardy attaches in a bench trial when the judge begins to hear evidence, Serfass v. United States, 420 U.S. 377, 388 (1975), the Supreme Court has "disparaged rigid, mechanical rules in the interpretation of the Double Jeopardy Clause." Id. at 390 (citations and internal quotation marks omitted). "[T]he conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial."Id.
An "acquittal" for purposes of the Double Jeopardy Clause is "a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged." United States v. Scott, 437 U.S. 82, 97 (1978) (alteration in original) (quotingUnited States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)). A trial judge's characterization of his own action as an "acquittal" is not determinative. Scott, 437 U.S. at 96.
There has been some dispute over whether this should serve as the definition of an acquittal for all purposes. See Scott, 437 U.S. 111-12 (Brennan, J., dissenting). InScott, Justice Brennan found the more accepted definition of acquittal to be "a legal determination on the basis of facts adduced at the trial relating to the general issue of the case." Id., at 112 (quoting Martin Linen, 430 U.S. at 575). Both definitions contemplate a presentation of facts at trial relating to the criminal charges against the defendant prior to a determination of the defendant's guilt or innocence. Both definitions support the finding that the trial judge's ruling in Gonzalez's case was not an "acquittal" for double jeopardy purposes.
The trial judge found Gonzalez "not guilty" without any presentation of evidence concerning any of the factual elements of the charges against him. The only "evidence" presented was the irrelevant testimony of Gonzalez's daughter that the defendant was her father, offered only to provide the "magic moment" when jeopardy could be said to have attached. The SJC called it a "sham trial," Gonzalez, 771 N.E.2d at 142, and there is no reason to quarrel with that description.
There is no doubt that if the judge had dismissed the complaints against Gonzalez, either for discovery abuse or for failure to prosecute, the Double Jeopardy Clause would not bar Gonzalez's reprosecution.Serfass, 420 U.S. at 391-92. It seems certain the judge knew that, which is probably why he prompted the defendant to produce evidence when the prosecution refused to.
This is not a case of the prosecutor's failing to offer sufficient evidence to convict the defendant at the trial, but rather of her refusing to offer any evidence. In such circumstances, there was no risk to the defendant that he would be found guilty. See Serfass, 420 U.S. at 391-92. Arisk of conviction must be a genuine one, not a "sham" risk. What the defendant attempted to do in this case was, in effect, put himself in jeopardy where the prosecution declined to do so, solely in an effort to obtain the benefit of the rule barring a later prosecution.
Substantively, the present case is more akin to a resolution in the defendant's favor based on "trial error" — such as inadequate compliance with discovery obligations — than it is to a finding that the evidence presented was legally insufficient to support a conviction. Compare Scott, 437 U.S. at 95, with Burks v. United States, 437 U.S. at 18. The prosecution explicitly suggested that the trial judge dismiss the case for noncompliance with discovery, rather than going forward with a trial. The SJC suggested there were appropriate ways under state law to deal with the prosecutor's discovery default short of declaring an acquittal on no evidence. See Gonzalez, 771 N.E.2d at 138-39.
Nor are the underlying purposes of the Double Jeopardy Clause served by barring further prosecution of Gonzalez on the pending complaints. The Clause protects against the prosecution making repeated attempts to convict the defendant, "thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187 (1957). As noted, the prosecution made no attempt to convict the defendant in the "first" trial. A "second" trial would not present "the untoward consequences the [Double Jeopardy] Clause was designed to prevent." Scott, 437 U.S. at 106 (Brennan, J., dissenting).
Lastly, the Court rejects Gonzalez's argument that a subsequent trial would deprive him of his constitutional right to be tried by the fact finder of his choice. This stretches too far the principle that a defendant has a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689 (1949). In the initial proceedings before the BMC, Gonzalez had a right to waive a jury trial in favor of a bench trial, but he maintains no constitutionally protected interest in a second trial before the same judge in the BMC, any more than he would be entitled to the same jury had he chosen a jury trial in the initial proceeding. In any event, this is one instance where a defendant's right to a particular tribunal "must . . . be subordinated to the public's interest in fair trials designed to end in just judgments." Wade, 336 U.S. at 689.
E. Conclusion
The respondents' motion to dismiss the petition for failure to exhaust available state court remedies is DENIED. As Gonzalez may stand trial on the existing criminal complaints without violating his Fifth Amendment right against double jeopardy, his motion for judgment on the pleadings is DENIED and his petition for a writ of habeas corpus is DISMISSED. The Court's June 16, 2003, Order enjoining the respondents from prosecuting the petitioner before the BMC for the charges alleged in the criminal complaints is VACATED.
It is SO ORDERED.
Defendant's Counsel: "Just state your name for the court, please." Witness: "Camille Gonzalez." Defendant's Counsel: "Do you know Jorge Gonzalez?" Witness: "He's my father." Defendant's Counsel: "Thank you. No further questions." Respondent's Supplemental Materials, (Docket # 12), Attach. 2, Hearing Transcript, June 8, 2000, at A. 109.