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United States v. Scott

United States District Court, N.D. Alabama, Middle Division

August 22, 2014

UNITED STATES OF AMERICA
v.
PHILLIP DON SCOTT

For Phillip Don Scott, Defendant: Hube H Dodd, Jr, LEAD ATTORNEY, THE DODD LAW FIRM, Birmingham, AL.

For USA, Plaintiff: Joyce White Vance, U.S. Attorney, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Birmingham, AL; U.S. Probation, LEAD ATTORNEY, UNITED STATES PROBATION OFFICE, Birmingham, AL; USM, LEAD ATTORNEY, UNITED STATES MARSHAL, Birmingham, AL; Laura D Hodge, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Huntsville, AL; Jennifer Smith Murnahan, UNITED STATES ATTORNEYS OFFICE, NORTHERN DISTRICT OF ALABAMA, Birmingham, AL.

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MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE.

This case is before the court on the Government's Amended Motion for Mistrial, (doc. 64),[1] and defendant's objections to it, ( see doc. 66 & 67). The court will also address the potential barriers to reprosecution.[2] For the reasons stated below, the court will declare a mistrial and sees no bar to reprosecution in this case.

FACTS

The jury panel from which this jury was selected had originally been called to report for service on May 5, 2014, for a two-week term of court. Their reporting date was continued to May 12, 2014, then to May 13, 2014. The jury was sworn and seated before the lunch recess, during which defendant, complaining of dizziness, went to the emergency room. He spent the next several hours undergoing testing and treatment for extremely high blood pressure. The jury was directed to return at 10:00 a.m. the following morning, May 14, 2014. At 9:00 a.m. that morning, the court had the defendant submit to drug testing by his probation officer, and defendant tested positive for methamphetamine.[3] (Doc. 71, Excerpt of Transcript of Trial on May 14, 2014 at 3.) When asked by the court how he felt, defendant stated that he felt " kind of clammy and sweaty." ( Id. at 6.) Defendant was remanded to the

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custody of the United States Marshal and taken to the Calhoun County Jail. After examination, the nurse at the jail advised that defendant's blood pressure was 183 over 115, that the nurse felt defendant was impaired, and it would take four to five days for him to detox. ( Id. at 8.) The court then continued the trial to May 27, 2014. At that time one of the selected jurors indicated that it would be an extreme hardship for him to return at that time, as he was self-employed and had lost significant earnings due to the repeated extensions of the jury term date. The juror had been " very upset and did not have a good attitude about continuing to serve." (Doc. 72, June 12, 2014 Transcript at 26:15-19.) The court excused him. While the remaining twelve jurors indicated they could return on May 27th, there was some degree of frustration noted as to the extensions of their service.

At the time the jury was originally seated, the government's first witness, a Drug Enforcement Agency toxicologist who had tested the alleged controlled substances in this case, was at the courthouse ready to testify. However, on May 22, 2014, the toxicologist informed the Assistant United States Attorney that her physician had determined that her pregnancy with twins was " high risk" and she was no longer able to travel from her home in Texas to Alabama to testify. As a result, the alleged controlled substances would need to be resubmitted to the DEA laboratory in Dallas, Texas, for testing by another toxicologist who would then be able to travel to Alabama to testify at trial. This process would take approximately two weeks.

On May 23, 2014, the jury was advised that they should not report on May 27, 2014, that the case had been postponed and a new date had not yet been determined. The government moved for a mistrial so that it could have another expert retest the alleged controlled substances at issue in this case and testify as to the results. (Doc. 64.) The court was initially inclined to continue the trial instead. ( See doc. 72, June 12, 2014 Transcript at 5:3-11.)

The court asked its Jury Administrator to call the jurors to see the first date they were all available. One juror had a prepaid out-of-state vacation set for June 16, one for June 23. (Doc. 72, June 12, 2014 Transcript at 3; doc. 68-1.) One Juror had a family reunion to attend, another had an out-of-town baseball tournament for her child on June 30. ( Id.) The court was unavailable the week of July 7. (Doc. 72, June 12, 2014 Transcript at 7.) One juror was unavailable the week of July 14. ( Id.) One juror had a prepaid out-of-state vacation from July 19-30. (Doc. 68-1.) In the end " there[ was] not a date that all 12 jurors [were] available." (Doc. 72, June 12, 2014 Transcript at 30:16-18). One juror was moving to Atlanta, Georgia, the week of July 28, to begin graduate school. ( Id. at 23:4-5). The only way defendant could be tried by members of the original jury, other than by haling at least one juror into court long after the juror's original term of service had expired and causing him or her hardship, was for the defendant to consent to a trial by eleven. Defendant and his attorney discussed this possibility, and the court gave defendant a few additional days to consult his family. ( Id. at 33.) The court specifically advised defendant that if he did not consent, the court would declare a mistrial and the question of double jeopardy would arise, but that the court would deny a motion to dismiss the indictment. ( Id. at 31-32.)

As was his right, defendant did not consent to trial by ...


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