United States of America, Appellee, v. Michael Thomas Timmermann, Appellant.united States of America, Appellee, v. Russell Maurice Mattei, Appellant.united States of America, Appellee, v. Gary Dale Moses, Appellant.united States of America, Appellee, v. Bernard Albert Campbell, Appellant.united States of America, Appellee, v. John Christopher Dorsch, Appellant.united States of America, Appellee, v. Michael Thomas Timmermann, Appellant.united States of America, Appellee, v. Russell Maurice Mattei, Appellant.united States of America, Appellee, v. Gary Dale Moses, Appellant.united States of America, Appellee, v. Bernard Albert Campbell, Appellant.united States of America, Appellee, v. John Christopher Dorsch, Appellant, 806 F.2d 258 (4th Cir. 1986)

Defendants Harris, Timmermann, Mattei, Moses, Campbell, and Dorsch appeal the trial judge's denial of their motion to dismiss the indictment after a mistrial was declared during their first trial. Subsequently, Harris' case was severed from the others and Defendants Timmermann, Mattei, Moses, Campbell, and Dorsch were retried and convicted by jury of conspiracy to possess cocaine with intent to distribute and possession with intent to distribute. They appeal advancing a number of grounds for the reversal of their convictions. We decline to review Defendant Moses' contention of denial of ineffective assistance of counsel and find no error as to the other issues raised.

This initial statement of the facts is confined to a brief overview of the government's case and to the procedural history. Other pertinent facts will be stated in relation to specific contentions.

From March 1981 through December 1982, Alan Bozman distributed cocaine for a network headed by Defendant Harris. Defendants Timmermann, Mattei, Campbell, and Dorsch bought cocaine from Bozman. Moses was an employee of Bozman who became a runner for Harris. Purchasers made contact with Bozman through an answering service by leaving messages for "John Galt."

In July 1984, a federal grand jury returned an 18-count indictment against 15 individuals, including Bozman and Defendants Harris, Timmermann, Moses, Campbell, and Dorsch, on charges of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. In August 1984, a superseding indictment was returned adding new substantive counts and substituting Defendant Russell Maurice Mattei for Russell Steven Mattie. This similarity in names led to the arrest of Russell Steven Mattie who was not involved. This error was corrected and Defendant Russell Maurice Mattei was subsequently arrested.

A jury trial involving the appellants began on March 5, 1985. Bozman entered a guilty plea and became a government witness. The district judge granted a mistrial during the third week of the presentation of the government's case due to improper responses of a government witness. Defendants' motion to dismiss the indictment on grounds of double jeopardy was denied and retrial was set for late September 1985.

On September 26, 1985, Defendant Harris was severed from the case due to his hospitalization. Motions for continuance by the remaining Defendants were denied. Defendants Timmermann, Moses, Campbell, Mattei, and Dorsch proceeded to trial on September 30, 1985 and were convicted on one count each of conspiracy and possession with intent to distribute. Moses was acquitted on two other counts of possession with intent to distribute.

The trial judge declared a mistrial in the first trial because the DEA agent in charge of the case expressed an opinion as to the guilt of Defendant Mattei when questioned on direct examination about the circumstances of Russell Maurice Mattei's substitution for Russell Steven Mattie in the superseding indictment. Responding to the question, "What did you do that day?" the DEA agent testified: "He told me he was innocent, and from his demeanor, I believed him. I saw truth in his eyes, and I took steps to determine if, in fact, he was the guilty Mr. Mattie [sic] or the innocent Mr. Mattie."

Defendants moved for dismissal of the indictment arguing that the government intentionally goaded them into seeking a mistrial and thus retrial was barred on grounds of double jeopardy under Oregon v. Kennedy, 456 U.S. 667 (1982). The district judge denied the motion to dismiss finding that although the government may have been negligent in not cautioning the witness, it did not intend to goad a motion for mistrial.

The double jeopardy clause generally does not bar retrial after a mistrial. When an accused obtains a mistrial, he can avoid a second trial only if "the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial...." Oregon v. Kennedy, 456 U.S. at 676. The question of the government's intent is one of fact and the trial court's finding on the issue is subject to the clearly erroneous standard. United States v. Wentz, --- F.2d ----, No. 85-5243 (4th Cir. Sept. 19, 1986), citing Robinson v. Wade, 686 F.2d 298, 309 (5th Cir. 1982).

The refusal to dismiss the indictment after granting a mistrial was not reversible error. The question asked by the government--"What did you do that day?"--clearly called for a factual response, rather than an opinion answer. The trial judge expressed the belief that one of the reasons that a cautionary instruction was not given to the witness was the "exemplary fashion in which counsel for both sides had conducted themselves throughout the trial." The factual finding of the trial judge who observed the conduct of counsel throughout three weeks of trial is amply supported in this case.

After the mistrial in March 1985, retrial was set for Monday, September 30, 1985. On Tuesday, September 24, 1985, counsel for Appellants discovered that Defendant Harris had checked himself into a hospital. On Thursday, September 26, the district judge heard Defendant Harris' motion for severance and motions for continuance from Defendants Dorsch, Mattei and Timmermann. Dorsch and Mattei sought a delay to allow them time to reassess their cases since Harris' attorney had been "lead" attorney by informal agreement of counsel. Timmermann sought a continuance until Harris would be available to testify on his behalf. The district judge granted the motion for severance and denied the motions for continuance.

We find no abuse of discretion. When a continuance is sought to secure the attendance of a witness, the party requesting the continuance must show who the witness is, what the testimony will be, that the testimony will be competent and relevant under the issues in the case, that the witness can probably be obtained if the continuance is granted, and that due diligence has been used to obtain his attendance at trial. United States v. Clinger, 681 F.2d 221, 223 (4th Cir.), cert. denied, 459 U.S. 912 (1982). Timmermann did not attempt to subpoena Harris. There is no showing that had he been subpoenaed he would not have been available. He may not now complain of Harris' absence.

Counsel had the benefit of participating in three weeks of the presentation of the government's case prior to the mistrial. They had four months to review Jencks Act materials and transcripts of the previous trial. Simply because "lead" counsel is removed from a case is no automatic basis for a continuance. The district judge did not abuse his discretion in denying this motion.

During the retrial in the middle of the government's case, the trial judge removed Defendant Moses' counsel at Moses' request. Substitute counsel was immediately appointed and the trial continued without delay. Moses was subsequently convicted on two counts and acquitted on two other counts. He appeals his convictions alleging ineffective assistance of counsel.

We decline to address this issue on the record before us. Defendant Moses is free to raise the issue of the effectiveness of his trial counsel in an application for a writ of habeas corpus under 28 U.S.C.A. Sec. 2255 (West 1971).

Defendants Campbell, Mattei and Dorsch challenge several evidentiary rulings by the trial judge. We find no abuse of discretion and reject their contentions.

Finally, Defendants Timmermann, Mattei and Dorsch assert that there was insufficient evidence to support their convictions. These arguments have no merit. The convictions are supported by the testimony of Bozman and other co-conspirators in addition to other evidence presented by the government.

In conclusion, the trial judge did not err in denying the motion for dismissal of the indictment on double jeopardy grounds. There was no abuse of his discretion in denying the motions for continuance or in ruling on the various evidentiary issues. The convictions are supported by the evidence. Finally, we decline to address the issue of ineffective assistance of counsel in this direct appeal. Accordingly, the convictions are affirmed.

AFFIRMED.