United States District Court, D. Alaska
For Michael D. Brandner, Defendant: D. Randall Ensminger, LEAD ATTORNEY, Ensminger Law Offices, PC, Lincoln, CA.
For USA, Plaintiff: Bryan D. Schroder, LEAD ATTORNEY, U.S. Attorney's Office (Anch), Anchorage, AK; Ignacio Perez de la Cruz, U.S. Department of Justice (WA DC Box 972), Tax Division, Washington, DC.
ORDER RE MISTRIAL
Sharon L. Gleason, UNITED STATES DISTRICT JUDGE.
Before the Court at Docket 178 is the Government's Motion for Mistrial, filed January 26, 2015. Dr. Brandner opposed
the motion on February 2, 2015. For the reasons set forth below, the motion will be granted.
A jury trial was commenced in this case on November 3, 2014, with twelve jurors and two alternates selected. One juror was excused due to a medical condition on November 6, 2014, leaving one remaining alternate.
Between November 3 and November 17, 2014, seven days of trial were held. However, on the evening of November 17, Dr. Brandner's counsel was unexpectedly hospitalized. On November 18, Dr. Brandner appeared without counsel at Court along with defense counsel's trial assistant; his counsel was then hospitalized in intensive care and anticipated emergency surgery. The Court tentatively continued the trial until January 12, 2015 (the earliest available date for the Court and parties after an estimated time for defense counsel's surgery and recovery), set a status hearing for November 25, and appointed the Federal Public Defender to temporarily represent Dr. Brandner at the status hearing. The Court expressed its concern as to whether the impaneled jurors would reasonably be able to recall the evidence presented in November upon resuming trial eight weeks later. At the November 25 hearing, defense counsel appeared telephonically, provided an update of his medical status and notified the Court that he required additional medical treatment. The Court noted Dr. Brandner could complete the standard financial affidavit if he sought for new counsel to be appointed, and, if financially unable to afford counsel, could have the Federal Public Defender appointed for trial. However, to date Dr. Brandner has elected to continue to be represented by his original trial counsel. Thereafter, defense counsel underwent surgery and his medical condition has continued to prevent him from resuming trial. The Court has stayed informed as to counsel's physical condition and has granted additional continuances. As of the date of this order, trial is set to resume on February 10, 2015--approximately 12 weeks after the last presentation of testimony to the currently impaneled 13 jurors. The Government has estimated that it will require up to two more full days of trial to conclude its case and defense counsel estimated that its evidence presentation will require up to five full days.
Dr. Brandner has opposed the Government's motion for mistrial. He also moves the Court to grant an additional continuance due to his counsel's medical condition and requests that trial resume on March 9 or March 16, 2015. The result of granting such a continuance would be a delay of at least 16 weeks since the last presentation of testimony.
I. Mistrial Standard
A criminal defendant has a right to have the jury first impaneled to try him reach a verdict. As a result, " [i]f a case is dismissed after jeopardy attaches but before the jury reaches a verdict, a defendant may be tried again for the same crime only in two circumstances: (1) if he consents to ...