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August 29, 1989

JAMES R. MARREN, Defendant

The opinion of the court was delivered by: FOREMAN


 This matter is before the Court on defendant Marren's Motion to Dismiss the indictment on the grounds that the double jeopardy provision of the fifth amendment would prohibit his trial. The Court severed defendant Marren from the United States v. Canino, et al., CR 87-40045, trial and declared a mistrial after a hearing on the government's Motion for Disqualification and Severance revealed there was a reasonable possibility that Marren's attorney, Stephen Finta, committed specifically identifiable improprieties in furtherance of the conspiracy for which Marren was on trial, and that the likelihood of public suspicion outweighed the social interests that would be served by Finta's continued participation in the case. Marren essentially asserts in his motion that 1.) the government's disqualification motion was untimely; 2.) attorney Finta did not have sufficient time to prepare for the disqualification motion and the hearing on that motion; 3.) the "manifest necessity" doctrine did not compel a mistrial; and 4.) the Court misapplied the legal standard it chose when disqualifying Finta.


 On November 14, 1988, this Court heard argument on various motions pertaining to the trial of United States v. Canino, et al., CR 87-40045. James Marren, who was represented by Stephen Finta, was one of five defendants facing trial on charges relating to a marijuana distribution conspiracy. A jury was selected on November 15, 1988, and sworn to try the issues in the case on November 16, 1988. Counsel made opening statements and the government's first witness, Charles Podesta, began his testimony at 10:30 a.m. on November 17, 1988. Podesta's testimony continued on November 18, and the Court declared that a recess would be taken until November 29, 1988, due to the Thanksgiving holiday and prior Court commitments.

 On November 29, 1988, the government filed a Motion to Disqualify Stephen J. Finta as attorney of record for defendant Marren and to sever Marren from the Canino et al. trial. The government alleged in its motion that attorney Finta "knowingly and intentionally participated in activity that furthered the goals of the conspiracy." The government's motion also asserted that Finta's continued representation of Marren would erode public confidence in the integrity of the bar and the legal system. The Court immediately conducted an evidentiary hearing on the government's motion, without objection from Finta or Marren, and ruled that attorney Finta was disqualified from representing Marren. The Court thereafter declared a mistrial as to defendant Marren and severed his trial from that of his co-defendants. Marren subsequently filed a Motion to Dismiss Based Upon Double Jeopardy. The Court will address each argument raised in Marren's motion seriatim.

I. The Government's Motion for Disqualification and Severance was Timely.

 Defendant Marren asserts that 1.) attorney Finta had an inadequate opportunity to research the legal issues implicated by the government's motion and insufficient time to procure witnesses for the evidentiary hearing, and 2.) the government is precluded from retrying Marren because it neglected to act on knowledge it possessed prior to the swearing of the jury.

 A. The Court was Unaware that Attorney Finta Desired a Continuance.

 The Court and defendant Marren apparently agree that "in wicked haste is no profit." G. Chaucer, The Canterbury Tales, Melibee, 1. 2240. Nonetheless, the Court was unaware until now that attorney Finta and defendant Marren wished to continue the hearing on the government's motion. Finta did vaguely state that "I do not have people here today" (Tr. 122) and that his "secretary [was] going through the files back in the Southern District [of Florida]." (Tr. 100), but Finta engaged in the following colloquy with the Court when he attempted to conclude the presentation of evidence:

FINTA: But having said that, unless your Honor desires to hear further testimony or facts under these circumstances, we would rest on that:
THE COURT: I'm willing to hear anything you want to present. I don't think it's for me to say, Mr. Finta, what I should hear or not hear. I think it's up to you. Do you have anything further to present to the Court?

 (Tr. 122).

 Contrary to defendant's assertion that the Court stymied Finta's ability to respond and present evidence, the Court encouraged Finta to introduce any evidence or testimony that would facilitate a fair ruling on the government's motion. At no time did the Court suggest that either the government or attorney Finta would have a limited opportunity to present evidence. If Finta had moved for a continuance to garner evidence and relevant case law, the Court would have happily granted the motion. Finta's statements at the evidentiary hearing undermine defendant's present claim that the Court made a headlong decision to conduct a hearing on the government's unforeseen motion, leaving Finta at a disadvantage. Finta reacted to the government's allegations that he played a nefarious role in Ronald Ball's purchase of a stash house as follows:

I discussed these things in advance at length with Mr. Marren and with other people candidly. These things come as no surprise. We were ready to deal with them when they came up. They weren't earth shattering but we weren't prepared to deal with them necessarily today in terms of having witnesses here and having files ...

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