(CN) - A federal prosecutor in Arizona may deserve sanctions for misrepresenting a suspected drug smuggler's previous testimony and forcing a mistrial, but the double jeopardy clause does not foreclose a retrial, the 9th Circuit ruled.
Aurora Lopez-Avila originally pleaded guilty after prosecutors charged her with possession with intent to distribute cocaine. Customs officials had arrested her at the Nogales Port of Entry south of Tucson, Ariz., as she attempted to enter the United States from Mexico with 9.7 kg of cocaine hidden behind a seat cushion in her car.
A month later, however, Lopez-Avila retracted her plea and claimed that she had been forced to move the drugs under threat. On the second day of trial deliberations in Tucson, Assistant U.S. Attorney Jerry Albert misquoted Lopez-Avila's prior testimony from her plea hearing. His truncated reading made it seem like the defendant had lied at the earlier hearing about being coerced into the smuggling operation.
After Lopez-Avila's attorney discovered the mistake and secured a mistrial, he unsuccessfully moved for dismissal of the indictment based on double jeopardy. The federal appeals court in San Francisco agreed on Thursday that the charges still stand.
Double jeopardy does not apply to the case because there is no evidence that Albert had tried to '"goad' the defense into making the mistrial request," the three-judge panel found.
Instead, "the evidence reveals that this is a case of a prosecutor crossing the line in an attempt to 'win at all costs,'" which is not enough to bar a retrial, the 18-page decision states.
Albert may still be taken to task for his action, the judges added, noted that they have taken "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 doing so, the court expressed a bit of skepticism about Albert's motives.
"AUSA Jerry Albert represented to the trial court an altered version of the dialogue between the court and a witness at a hearing which had taken place in that same federal court," Judge Carlos Bea wrote for the unanimous panel. "He presented a falsified version of an exchange as the true recitation of the transcript, until caught out by defense counsel. He did so to make it seem to the jury as if Lopez-Avila had lied under oath about being threatened to commit the cocaine possession crime, when she had plainly responded to a magistrate judge's question about whether she had been threatened to enter a plea of guilty. It is hard to see - and, from our vantage point as an appellate tribunal, we do not see - how a prosecutor could interpret a magistrate's question, 'Has anyone threatened you or forced you to plead guilty?', asked at a run-of- the-mill guilty plea hearing, to mean 'Has anyone threatened you to commit this offense or forced you to plead guilty?'"
The panel suggested that, on remand, the District Court could "consider dismissal with prejudice of the indictment as an exercise of its supervisory powers and to prevent other misconduct in the future."
The court could also discipline the attorney itself, or it could report the incident to Department of Justice's Office of Professional Responsibility, the panel found.
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