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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
                                                     No. 96-10345
v.
                                                     D.C. No.
ANIBAL RAMIRO GAYTAN; JESUS
                                                     CR-95-00010-RMB
AVMANDO PORTILLO; and ROMAN
                                                     OPINION
HECTOR MUNGIA-MEZA,
Defendants-Appellees.


Appeal from the United States District Court
for the District of Arizona
Richard M. Bilby, Chief District Judge, Presiding


Argued and Submitted
March 6, 1997--San Francisco, California


Filed June 18, 1997

Before: Stephen Reinhardt, Cynthia Holcomb Hall and
David R. Thompson, Circuit Judges.


Opinion by Judge Reinhardt

_________________________________________________________________

SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1994 by Barclays Law Publishers.
_________________________________________________________________


Criminal Law and Procedure/Double Jeopardy

The court of appeals affirmed an order of the district court.
The court held that principles of double jeopardy bar retrial
when the district court dismisses a criminal prosecution with
prejudice based on the government's Brady violation before


                               7045


defense counsel has an opportunity to consider or request
other remedies.


Following an indictment of appellees Anibal Gaytan and
Jesus Portillo for controlled-substance offenses, the defense
moved pursuant to Brady v. Maryland, 373 U.S. 83 (1963) for
government disclosure of exculpatory information regarding
confidential informants. The government's response reflected
a reluctance to provide the identity of its informants.


The defendants sought to obtain full Brady disclosure with
motions to compel production, for sanctions, for further dis-
covery, and for a continuance. Of central concern to them was
the government's lack of disclosure about possible informants
Minjarez and Carrette. Gaytan told the district court that he
believed that Minjarez and Carrette had been engaged in drug
trafficking during the period of the charged conspiracy, and
that Minjarez's sister had been offered a record expungement
in exchange for her testimony. It was the government's failure
to confirm these suspicions by disclosing the involvement of
Carrette, Minjarez, and his sister in drug-trafficking that
underlay the defense motions.


At the hearing on the motions, the court warned the govern-
ment that if the defense allegations were true,"the case is
gone," and that the court would "throw the case out." The
prosecutor admitted that Carrette had offered to become an
informant in exchange for leniency to Minjarez, that Minjarez
was the conduit through which Gaytan met Carrette, and that
Carrette had been present when Gaytan conducted a drug
transaction.


At trial, the testimony of government witnesses tended to
confirm the defendants' contentions about Minjarez and Car-
rette. The district court declared a lunch break, and after the
jury left asked whether the defendants had a motion. The
court reiterated its earlier warning to the government. Repeat-


                               7046


ing the court's language, Portillo's attorney stated that he
thought the case was "gone."


The Assistant United States Attorney (AUSA) advised the
court that she had not fully disclosed Carrette's involvement
in drug activity in the belief that she was required to reveal
only information pertaining to credibility or veracity of the
informants. Before defense counsel could respond, the court
stated that the case was dismissed with prejudice. The AUSA
stated her intention to appeal the court's decision.


The next day, Gaytan pointed out that the previous morning
he had filed documents supporting motions to strike Carrette's
testimony and for a judgment of acquittal. The district court
noted that it had ruled without considering them and had
based the dismissal on the Brady violations. Gaytan
responded that he would have asked the court to strike the tes-
timony and enter a judgment of acquittal. The government
appealed.


The court of appeals reversed, holding that the Brady
violation did not warrant the sanction of dismissal because
less drastic remedies were available to cure it. The court did
not decide whether retrial was barred by double jeopardy.


On remand, Gaytan moved to dismiss on the ground of
double jeopardy. The district court granted the motion, noting
that its earlier sua sponte dismissal of the action had occurred
before the defendants had an opportunity to make a motion to
suppress Carrette's testimony. The court also stated that had
the defendants done so, the court would have granted the
motion. The government appealed.


[1] If a judge declares a mistrial after the proceedings have
commenced, retrial will be permitted only if the defendant
consented, or if the mistrial was justified by manifest neces-
sity. The government acknowledged that dismissal was not
manifestly necessary. [2] If the defendant does not expressly


                               7047


consent, consent may be inferred only where the circum-
stances positively indicate a willingness to acquiesce in the
mistrial order. The district court did not err in concluding that
the defendants' actions did not positively indicate approval.


[3] Once the court determined what had happened with
respect to the Brady violation, the defendants temporarily lost
all ability to influence the course of the proceedings. The
judge admonished the prosecutor and ordered the case dis-
missed without pausing for any discussion of the possibility
of other remedies. The judge terminated the proceedings as
soon as the prosecutor completed her explanation, took note
of the government's intention to appeal, and left the bench
precipitously without affording counsel any opportunity for
further colloquies. There was no discussion regarding future
plans prior to the court's departure.


[4] When prosecutorial error has occurred, the important
consideration, for purposes of the Double Jeopardy Clause, is
that the defendant retain primary control over the course to be
followed. It is important for the defendants to have the chance
fully to assess their positions as of the time the mistrial is
ordered--in this case after the informant's testimony. The
precipitous action by the district court did not afford an ade-
quate opportunity for defense counsel to discuss the various
choices with their clients, let alone consult among themselves
as to the best approach for them to take. The government's
argument that the court of appeals should have reversed
because the defendants had "long-term" knowledge that the
court would dismiss if a Brady violation were proven was
inconsistent with caselaw and highly speculative. [5] While
the prosecutor was not required to consult with anyone before
announcing that she would appeal, defense counsel were obli-
gated to consult with their clients and one another before

selecting a course of action.

[6] The defendants' mere "mirroring " of the district court's
terminology prior to an actual discussion of specific sanctions


                               7048


or other remedies does not constitute consent. "It's gone" was
in any event an ambiguous phrase because the case would
have been "gone" if the trial judge had granted a defense
motion to strike Carrette's testimony and ordered a judgment
of acquittal. Moreover, the defendants made no comments
implying consent after the court announced its ruling. There
were no affirmative expressions by counsel consenting to the
dismissal. Under those circumstances, implied consent could
not be found.


[7] The defendants' actions at the hearing on the day after
the dismissal strongly supported the district court's post-
remand findings that they did not consent, expressly or
impliedly, to a mistrial. The court acknowledged that the
defendants had no chance to take the actions that they
described, and found that they would have made the motion
to suppress Carrette's testimony and requested a judgment of
acquittal. Even more important, the court found that had the
motions been made, it would have granted them. There was
no reason to question any of the district court's factual deter-
minations, or to say that any of the court's findings were
clearly erroneous.


_________________________________________________________________

COUNSEL

Georgia B. Ellexson, Assistant United States Attorney, Phoe-
nix, Arizona, for the plaintiff-appellant.


Susan Bryson Fox, Tucson, Arizona, Robert Clayton Her-
nandez, Tucson, Arizona, and Homero Torralba, Nelson &
Torralba, Tucson, Arizona, for the defendants-appellees.


_________________________________________________________________

                               7049


OPINION

REINHARDT, Circuit Judge:

Following the district court's dismissal of this case with
prejudice during the course of the trial, on account of a Brady
violation, we reversed and remanded. We left open the ques-
tion whether the Double Jeopardy Clause barred further pros-
ecution. The district court held that it did and dismissed the
indictment once again. We must now determine whether the
district court erred in dismissing the case a second time.


BACKGROUND

Following a federal grand jury indictment of Anibal Gay-
tan, Jesus Portillo and Roman Munguia-Meza1 for conspiracy
to possess with intent to distribute marijuana in violation of
21 U.S.C. S 841 (a) (1), all three defendants filed initial mo-
tions for government disclosure of exculpatory information
regarding confidential informants pursuant to Brady v. Mary-
land, 373 U.S. 83 (1963). In its written response, the govern-
ment asserted that it was free to withhold this information if
it believed that the informants needed to be protected. Fur-
thermore, it stated that it was the defendants' burden to show
that the information was relevant to their defense. Moreover,
the government stated that it "ha[d] already gone beyond that
[which is] required by [Brady] and [had] ma[de] available the
investigatory file in this case." The government added,
finally, that it was not "require[d] to create exculpatory
evidence."


At the hearing on the defendants' motions, the government
again stated that it had exceeded the requirements of Brady.
It also stated that the identity of the confidential informant,
when revealed, would not lead to extensive investigation by
_________________________________________________________________
1 The indictment also named Jorge Costello-Cano, who fled prior to trial
and still remains a fugitive.


                               7050


the defense because "he has no prior arrests, . .. [and] there's
not going to be a whole lot of snooping." The district court
reminded the government that all Brady material regarding
the confidential informant must be produced at least one week
prior to trial. The district court further stated that if newly dis-
closed information required any additional investigation by
the defense, it would grant a continuance. Because the gov-
ernment assured the court that it would comply with its Brady
obligations, the court denied defendants' motions without
prejudice.


The defendants continued to file motions regarding the
government's lack of disclosure of information about its wit-
nesses and confidential informants.2 What most concerned
them was the government's apparent lack of disclosure about
possible informants Hector Minjarez and Fernando Carrette.
At the hearing on the motions held shortly before trial, defen-
dants argued vigorously for disclosure of Brady material
regarding the two potential informants, as well as other wit-
nesses. Gaytan asserted that four days earlier he and the other
defendants had been informed that Carrette was a confidential
informant and that he would be testifying.3 At that time, the
government told the defense that five years prior to the trans-
actions involved in the current prosecution, Carrette had used
_________________________________________________________________
2 Gaytan filed a Motion to Compel the government to comply with a dis-
covery order concerning grand jury transcripts and notes of an agent who
testified at a motion hearing. Portillo filed a Motion for Sanctions regard-

ing the government's failure to comply with those orders. Munguia-Meza
later joined the motion. Portillo also filed a supplemental request for dis-
covery regarding government witnesses and confidential informants. Gay-
tan filed a Motion for Sanctions, asking that the government be prevented
from using 70 pages of documents disclosed just four days prior to the
scheduled commencement of trial as well as a Motion to Produce Addi-
tional Brady material regarding a government witness. Portillo moved to
continue the trial based on late disclosure of a government witness.
3 We use the names of the defendants rather than those of their counsel
when describing counsel's colloquies with the court in order to simplify
the opinion.


                               7051


cocaine. Gaytan informed the court that he suspected, but
could not prove, that Carrette and Minjarez had been engaged
in conducting drug transactions together during the period in
which the charged conspiracy had allegedly occurred. He
expressed concern that Minjarez was actually the person who
had put the entire deal together and that the government was
not disclosing this information to the defense. The govern-
ment then admitted that Carrette had agreed to be a confiden-
tial informant in order to "work off some of[Minjarez']
beef." Gaytan also expressed concern that another of the gov-
ernment's witnesses, Elizabeth Walker, Minjarez' sister, had
been offered the opportunity to have an arrest expunged in
exchange for testimony in the case. The district court
responded:


      THE COURT: Well, all I can tell you, that's easy;
      if that occurred [the government's granting of immu-
      nity in exchange for testimony] and they don't tell
      you that and I ever found out about it, the case is
      gone, and they're in more trouble than they ever
      want to be in.


      [GAYTAN]: Well, maybe you could direct the
      Court to -- the Government to give that information.


      THE COURT: Well, that, - you know, the way I
      deal with Brady material is, they know what Brady
      material is, and if they don't produce it, they lose,
      that's just - it's real easy.


While the government did concede that Minjarez was "the
conduit who introduced Mr. Gaytan to the CI (Carrette) once
a year ago and then coincidentally the CI was in there the day
Gaytan came in to do business and it went from there," it
assured the court that Minjarez was not a big part of the deal.
The court warned the government that it would "throw the
case out" if Minjarez was the "big shot behind all of this."


                               7052


At trial, Agent Thornhill testified for the government that
prior to the commencement of the investigation of the defen-
dants Carrette had approached him about becoming a confi-
dential informant in order to obtain "consideration for his
friend" Minjarez, who was the subject of a Drug Enforcement
Agency (DEA) investigation. He further testified that during
this same time period Minjarez had been trying to put a mari-
juana deal together in order to help his own case with the
DEA. Thornhill also acknowledged that it was Minjarez who
had ordered the two-way radios that were used to communi-
cate between the vehicles during the drug transaction involved
in the instant prosecution. During the noon recess, Gaytan and
Portillo moved for additional disclosure regarding the extent
of Minjarez's involvement in the activities underlying their
prosecution.4 The court observed that Minjarez was involved
to a greater degree than the government had previously
revealed, but stated that it would address a possible in camera

disclosure at the end of the day.

During direct examination the next day, Carrette revealed
that he had guarded stash houses and also acted as a body-
guard in various drug deals. He further confessed to having
snorted cocaine and consumed alcohol with defendant Gaytan
the night before the initial meeting with Agent Thornhill and
Minjarez. Following Carrette's direct examination, Gaytan
requested a sidebar to discuss the witness's prior involvement
in the drug business. The court again stated that it would con-
sider the matter later.


During cross-examination, Carrette testified that he had
been armed while serving as a stash house guard and also
while serving as a bodyguard. Furthermore, Carrette testified
that he had informed the Assistant United States Attorney of
all of his activities in the drug trade during their initial meet-
ing. After sustaining the government's objection to a question
asking Carrette to summarize a series of events, the court
_________________________________________________________________
4 Munguia-Meza's counsel was not present at the time.


                               7053


declared a lunch break. When the jury had left the courtroom,
the judge asked Gaytan if he wanted to make a motion. Gay-
tan deferred to Portillo who stated that they both had a
motion. Portillo then launched into a discussion of their prior
efforts to obtain disclosure of information regarding Carrette
and reiterated his earlier complaints regarding the govern-
ment's conduct. Before any motion was made, the court inter-
rupted and the following dialogue occurred:


      THE COURT: Well, it seems to me you're in the
      best of all worlds, because if they admit he told them
      all this stuff, the case is gone. I'll just tell you that
      right now. I warned them. But you're assuming this
      guy is telling the truth. You've brought out the fact
      that he's lied 20 times in 20 different ways. So it
      seems to me that they're stuck with the fact that they
      knew and didn't tell you or this guy lied to them.


      [PORTILLO]: I think -

      THE COURT: So it's too early for me to rule. I
      assume we're going to hear from [Agent Thornhill]
      again, who's going to get back up on the stand and
      deny he told him about the fact that he carried guns,
      that he was a guard, that he had been in the drug
      smuggling business, then they haven't violated
      Brady. But if they admit that he told them all this
      stuff and they didn't tell you, it's gone.


      [PORTILLO]: Well, Your Honor, I think it's gone
      then. Because I think that the government has
      already told you before our last break that they did
      have the information and they did not give that to us.
      I'd be satisfied with taking the statement of [the
      AUSA] right now and we won't have to wait for[the
      government witness].


The court then asked the Assistant United States Attorney
whether she had disclosed to the defendants that Carrette had


                               7054


been in the drug business. She stated that she had known of
Carrette's drug involvement both with respect to the use of
drugs and the armed guarding of the stash houses, but that she
had told the defendants only about the prior use. She
explained that she thought that she only had to reveal infor-
mation pertaining to "credibility and veracity " of the infor-
mants. After a brief exchange, the court stated:


      THE COURT: . . . If you're in my courtroom and
      you've got a confidential informant who's been in
      the drug business, you better reveal it. And this case
      is going to teach you how. The motion is granted and
      the case is dismissed with prejudice.


      (Applause)

      THE COURT: Shut up. Don't do that. I know
      these people have been in the drug business and I
      know they're going to be after them and I hope they
      catch them. And the only reason they're getting out
      is because the government messed up. Don't think
      that they're going to be free of surveillance, because
      I hope they do get caught.


      [AUSA]: Judge, I'm going to make my motion--

      THE COURT: The next person that applauds is
      going to get held in contempt.


      [AUSA]: -- could I just put my motion on the
      record that I'm going to appeal your decision.


      THE COURT: I hope you may.

      (end of proceedings)

The court then quickly left the bench. Following the abbrevi-
ated lunch break, the jury was dismissed, apparently without
counsel being present.


                               7055


At the court's telephoned instruction that afternoon, the
parties returned the following morning for a hearing on
release pending appeal. Before the court ruled on the release
motion, the defendants addressed the events of the previous
day:


      [GAYTAN]: . . . before yesterday morning I had
      made a reservation along with [Portillo] concerning
      Rule 16 and Brady material. During the intermission,
      I handed to this Court's clerk three documents that
      I wanted the Court to take into consideration before
      I did any arguing concerning the Rule 16 and Brady
      material. Those documents are with the Court's clerk
      at this point, and I'd ask the Court to look at those
      documents in light of what the Court's decision was
      yesterday. . . .


      THE COURT: I've already ruled on that.

      [GAYTAN]: I know that, Judge, but my --

      THE COURT: And I ruled on it without looking at
      that.


      [GAYTAN]: Yeah. My position is that at the point
      that this Court decided to dismiss this case, my posi-
      tion was going to be that the witness be stricken, and
      that in essence that would have been a judgment of
      acquittal on the facts of this case. . . .


      THE COURT: Sure.

      [GAYTAN]: Okay.

      THE COURT: It ought to clearly reflect that
      wasn't the basis upon which I did it. I dismissed it
      for the Brady violations. I dismissed the case with


                               7056


      prejudice. You know, I didn't strike his testimony or
      anything of that nature.


      [GAYTAN]: That would have been what I would
      have asked the Court to have done at that point.


      THE COURT: I understand that.5

The government appealed the dismissal with prejudice on
the grounds that the withholding of Brady material did not
constitute a due process violation and that the dismissal was
not a proper exercise of the court's supervisory power. In an
unpublished memorandum disposition, we reversed the dis-
trict court's order. We held that because the Brady violation
could have been easily remedied by the granting of a continu-
ance or the ordering of a mistrial, the sanction of dismissal
with prejudice was not warranted. We declined to rule on the
question whether retrial was barred on Double Jeopardy
grounds.


After the case was returned to the district court, Gaytan
moved to dismiss the indictment pursuant to the Double Jeop-
ardy Clause. The district court held oral argument on the
motion and reflected upon the events surrounding the original
dismissal:


      THE COURT: Well, I think it's a close call, but in
      light of what's gone on, I'm going to resolve in favor
      of the defendants on the grounds that I probably did
      preclude them from making a motion because I was
      mad. I can remember how mad I was.


       And I think under those circumstances, by filing
      the next day they did make a response. So under
_________________________________________________________________
5 Munguia-Meza's regular attorney did not attend this hearing. Instead
a replacement appeared on his behalf. She was silent throughout the hear-
ing except on the issue of bail.


                               7057


      those circumstances, I feel that they would have
      made a motion [to suppress Carrette's testimony].
      And had they made that motion or been allowed to
      make it before mine, why it certainly would have
      been granted, and that would have done away with
      the government's case.


       So I'm going to order that the case be dismissed
      on double jeopardy grounds.


The court then dismissed the indictment once again and the
government again appealed. It asserts that the district judge's
factual findings are clearly erroneous and that he erred in dis-
missing the case. We disagree.


ANALYSIS

The Double Jeopardy Clause of the Fifth Amendment
"protects a defendant in a criminal proceeding against multi-
ple punishments or repeated prosecutions for the same
offense." United States v. Dinitz, 424 U.S. 600, 606, 96 S. Ct.
1075, 1079, 47 L. Ed. 2d 267 (1976). It contemplates that the
state will be afforded one full and fair opportunity to marshal
its resources to convict a defendant, Arizona v. Washington,
434 U.S. 497, 505, 98 S. Ct. 824, 830, 54 L. Ed. 2d 717
(1978), but also that criminal defendants will not be required
to live in a "continuing state of anxiety and insecurity," with-
out a definite resolution of the criminal charges against them.
Dinitz, 424 U.S. at 606, 96 S. Ct. at 1079. Moreover, as the
Supreme Court has pointed out, multiple trials "enhanc[e] the
possibility that even though innocent [a defendant] may be
found guilty." Green v. United States, 355 U.S. 184, 187, 78
S. Ct. 221, 223, 2. L.Ed. 2d 199 (1957).


[1] Jeopardy attaches when the jury is empaneled and
sworn. See United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct.
547, 554, 27 L. Ed. 2d 543 (1971). Once this occurs, the
defendant has a right to have his case presented to that jury.


                               7058


Arizona, 434 U.S. at 503, 98 S. Ct. at 829; Jorn, 400 U.S. at
485, 91 S. Ct. at 557. In particular circumstances however, his
right may be "subordinate[d] to the public interest in afford-
ing the prosecutor one full and fair opportunity to present his
evidence to an impartial jury." Arizona, 434 U.S. at 505, 98
S. Ct. at 830. Specifically, while the Double Jeopardy Clause
"unequivocally prohibits a second trial following an
acquittal," Id. at 505, when a mistrial is declared the rules are
more complex. The principle that is controlling here may,
however, be stated relatively simply. If a judge declares a
mistrial after the proceedings have commenced, retrial will be
permitted only if the defendant consented to the mistrial or if
the mistrial was justified by manifest necessity. 6 Id. at 505;
United States v. Bates, 917 F.2d 388, 392 (9th Cir. 1991), as
amended.


[2] If the defendant does not expressly consent to the mis-
trial, consent may be inferred "only where the circumstances
positively indicate a willingness to acquiesce in the mistrial
order." Weston v. Kernan, 50 F.3d 633, 637 (9th Cir.) cert.
denied, 116 S. Ct. 351, 133 L. Ed. 2d 247 (1995) (quoting
Glover v. McMackin, 950 F.2d 1236, 1240 (6th Cir. 1991)).
Although the government argues that the defendants' actions
here positively indicated approval, we conclude that the dis-
trict court did not clearly err in reaching the contrary conclu-
sion.


The government's reliance on United States v. Smith, 621
F.2d 350 (9th Cir. 1980), is misplaced. Although in Smith the
defendant neither requested nor expressly consented to a mis-
trial, the court found implied consent as the result of specific
and unambiguous conduct on the part of defense counsel that
_________________________________________________________________
6 The government acknowledges that implicit in our earlier holding that
the district court's dismissal for Brady violations was erroneous, is the
conclusion that the dismissal was not manifestly necessary. Accordingly,
it does not argue "manifest necessity." We agree and do not address that
exception further.


                               7059


demonstrated consent. Specifically, prior to the time the court
dismissed the jury, defense counsel had been made fully
aware by the court that another trial would occur, and in fact
had freely participated in the court-conducted preparations for
that subsequent trial. During the pre-dismissal discussions,
defense counsel clearly manifested his understanding and
agreement that a second trial would take place. 7 Id. As the
Smith court stated "[t]hese items show that defense counsel
not only did not object to the order of mistrial, but affirma-
tively indicated his understanding that there could and would
be a retrial. This is enough to constitute implied consent." Id.
at 352.


[3] Here, by contrast, once the court determined what had
happened with respect to the Brady violation, the defendants
temporarily lost all ability to influence the course of the pro-
ceedings. The judge admonished the prosecutor and ordered
the case dismissed, without pausing for any discussion of the
possibility of other remedies, all in a matter of seconds. It is
quite apparent from the district court's subsequent candid
remarks that it acted in a burst of anger. Although the jurors
were not formally discharged until after they returned from
lunch, the judge terminated the proceedings as soon as the
prosecutor completed her explanation, took note of the gov-
ernment's intention to appeal, and left the bench precipitously
without affording counsel any opportunity for further collo-
_________________________________________________________________
7 The defense counsel in Smith asked that the jurors be instructed not to
discuss the case, and he participated in a discussion of the availability of
the various attorneys for the second trial at specific times. One of the rea-

sons for his request regarding the jurors was his concern that some of them
might be empaneled again for the retrial. As to the schedule for the second
trial, defense counsel advised the court he could retry the case within a
few weeks. Voir dire on evidentiary matters regarding two potential wit-
nesses was also conducted so that time could be saved if the same judge
were to preside at the subsequent trial. Smith, 621 F.2d at 352. Only after
the discussions regarding the retrial were completed did the judge dismiss
the jury.


                               7060


quies. Unlike in Smith there were no discussions of any kind
regarding future plans prior to the court's departure.8


[4] In United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075,
47 L. Ed. 2d 267 (1976), the Supreme Court emphasized the
importance of the opportunity for careful deliberation on the
part of the defendant when prosecutorial error has occurred.
In Dinitz, the Court stated that "the important consideration,
for purposes of the Double Jeopardy Clause, is that the defen-
dant retain primary control over the course to be followed in
the event of such error." Id. at 609. Precisely the opposite
occurred in this case. When the court became angered over
the government's Brady violation, the defendants lost control
over the course of events. As the district court subsequently
determined, there was no opportunity for the defendants to
consider let alone decide upon a course of conduct, either
individually or collectively. Prior consultations that may have
occurred regarding hypothetical possibilities were not suffi-
cient to allow defendants to evaluate their options following
the receipt of the testimony of the confidential informant, a

key government witness. As the Seventh Circuit made clear
in Lovinger v. Circuit Ct., 845 F.2d 739 (7th Cir. 1988), it is
important for defendants to have the chance fully to assess
their positions as of the time the mistrial is ordered -- in this
case, after the informant's testimony has taken place. The
Seventh Circuit's rationale was clearly stated:"[The defen-
dant's] assessment of his chances of acquittal may well have
changed in the interim between the perfunctory mistrial
motion and the eventual mistrial declaration." Id. at 744.
_________________________________________________________________
8 The record reveals that the jury was dismissed sometime after it
returned from the lunch break -- presumably as soon as it returned -- and
it appears that this occurred without counsel being present. In any event,
the government does not argue that defendants had any obligation to take
any action between the time of the judge's abrupt departure from the
courtroom and his dismissal of the jury. It does suggest, however, that

defendants could have advised the court of their position later in the after-
noon. Had they done so then, instead of the following morning, it would
have made no difference whatsoever, as we made clear in United States
v. Bates, 917 F.2d at 393 n.8.


                               7061


Here, the precipitous action by the district judge did not
afford an adequate opportunity, following the confidential
informant's testimony, for defense counsel to discuss the vari-
ous possible choices with their clients let alone to consult
among themselves as to the best approach for them to take on
a unified basis. The government's argument that we should
reverse because defendants had "long-term" knowledge that
the court would dismiss if a Brady violation were proven is
inconsistent with Lovinger as well as highly speculative.
There often are substantial differences between what judges
tell counsel they will do under hypothetical circumstances and
what they do when, after the record is fully developed, they
hear arguments on matters as they actually stand. That, at
least, is how the judicial process is supposed to work.


[5] The government's argument that because the prosecu-
tion managed to interject her intent to appeal, the defendants
could have objected to the dismissal is equally unpersuasive.
While the prosecutor was not required to consult with anyone
before announcing that she would appeal, conscientious
defense counsel are obligated to consult with their clients and
with one another before selecting course of action. For the
reasons already explained, we cannot agree that the defen-
dants should have known what the judge would do when the
record was developed and the truth finally emerged, or that
they should have been prepared to determine on the spot their
position on an issue of such vital importance to their clients.


[6] Although the government in this case argues that the
defendants consented to the mistrial, the district court prop-
erly found that such was not the case. As its final argument,
the government points to the fact that when the trial court
stated that "if the[ ] [prosecutors ] admit that [Carrette] told
them all this stuff and they didn't tell you, it's gone . . . "
defense counsel responded, "Well, Your Honor, I think it's
gone then." The defendants assert, correctly, that the mere
"mirroring" of the court's terminology prior to an actual dis-
cussion of specific sanctions or other remedies does not con-
stitute consent. "It's gone" is, in any event, an ambiguous


                               7062


phrase because, as we discuss further below, the case would
also have been "gone" -- and even more definitively so -- if
the trial judge had granted a defense motion to strike Carret-
te's testimony and ordered a judgment of acquittal. Moreover,
defendants made no comments implying consent after the
court announced its ruling. There simply were no
"affirmative" expressions by counsel consenting to the dis-
missal, then or ever. Smith, 621 F.2d at 352. Under those cir-
cumstances, we cannot find implied consent.


[7] The defendants' actions at the hearing on the day after
the dismissal strongly support the district court's post-remand
findings that they did not consent, expressly or impliedly, to
a mistrial. The defendants stated that, had they been given the
opportunity, they would have asked that Carrette's testimony
be stricken and, once the government was deprived of its star
witness, the court would have had no choice but to grant a
motion for judgment of acquittal. At the post-remand hearing,
the court acknowledged that the defendants had had no
chance to take the actions they had described. The court spe-
cifically found that, given time to deliberate, the defendants
would have made the motion to suppress Carrette's testimony,
and then would have requested a judgment of acquittal on the
ground that the government's case was contingent upon Car-
rette's testimony. Even more important, the court found that
had the motions been made it would have granted them. On
the basis of the record before us, we have no reason to ques-

tion any of the district court's factual determinations. Cer-
tainly, we cannot say that any of the district judge's findings
in this case are clearly erroneous. See Bates, 917 F.2d at 393.
Accordingly, we must affirm.


CONCLUSION

We affirm the district court and hold that retrial of the
defendants in this matter is barred by the Double Jeopardy
Clause.


AFFIRMED

                               7063









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