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United States v. Lopez-Avila

678 F.3d 955 (2012)

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United States v. Lopez-Avila

United States Court of Appeals for the Ninth Circuit

678 F.3d 955 (2012)

Facts

The government (plaintiff) charged Aurora Lopez-Avila (defendant) with possession with intent to distribute cocaine found in her car when she entered the country. Lopez-Avila initially pleaded guilty. At the plea hearing, the magistrate judge asked the standard questions, including, “Ms. Lopez, has anyone threatened you or forced you to plead guilty?” to which Lopez-Avila responded, “No.” Lopez-Avila later withdrew her plea and testified someone forced her to transport the drugs by threats. Prosecutor Jerry Albert wanted to use Lopez-Avila’s testimony from the plea hearing to impeach her at trial. Defense counsel objected, arguing the attorneys had agreed the plea change would not be part of the trial record. Albert said he would not “bring out [that] she pled guilty” but wanted to recite the question, “Ms. Lopez, has anybody threatened you?” Albert did not mention he had truncated the question without ellipsis, and the judge overruled the objection. Albert proceeded, and Avila-Lopez said she had answered, “No.” When Albert asked if Avila-Lopez had lied, she did not understand. Albert clarified, stating Avila-Lopez had admitted she was “not threatened in this case.” After cross-examination, defense counsel discovered the discrepancy and moved for a mistrial, arguing Albert misrepresented the question as whether anybody threatened Lopez-Avila into committing a crime as opposed to pleading guilty. Albert admitted he misquoted the transcript intentionally but claimed his reading was fair. The judge granted a mistrial. Lopez-Avila appealed, arguing double jeopardy barred retrial. The government filed a brief defending Albert and blaming defense counsel for not catching the question. Albert’s name did not appear on the brief, and he did not appear at oral argument. Finally, when the court published its slip opinion, the government moved to redact Albert’s name and replace it with “the prosecutor.”

Rule of Law

Issue

Holding and Reasoning (Bea, J.)

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