Feds screw up. Appeals court makes Hansen Helicopters executive a free man

The U.S. Ninth Circuit Court of Appeals blamed a federal prosecutor for causing double jeopardy to apply to one of the defendants in the massive Hansen Helicopters case. And now Kenneth Rufus Crowe is a free man, who can never be charged again with the crimes for which prosecutor Marie Miller tried so hard to convict him.

On the morning of March 21, 2022, U.S. District of Guam Chief Judge Frances Tydingco-Gatewood called into her chambers the three attorneys prosecuting the Hansen Helicopters case, and all the attorneys for Mr. Crowe and his then-co-defendants. One of them was John Walker, whom a jury later found guilty of scores of federal crimes in the case. The case involved allegations of a conspiracy of fraudulent and illegal practices that led to the deaths and serious injuries of people in international waters.

At the March 21 meeting, Mr. Crowe’s attorney, David Lujan, raised an ethical dilemma and asked the judge for a continuance of “one or two days” in order to sort through the facts. Ms. Tydingco-Gatewood denied the request and said she would sever Mr. Crowe from the current case to face charges on his own. By this time, a jury in the case had already been empaneled, and the prosecution’s case-in-chief already was underway.

Prosecutor Marie Miller interrupted the judge and informed her she would need to enter manifest necessity documents in the case. The judge disagreed with Ms. Miller, telling the parties the matter is a simple case of severance. Ms. Miller then acquiesced, telling the court she had “absolute authority under Rule 14 to sever” Crowe without declaring a mistrial.

Under the U.S. Constitution’s fifth amendment, no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This is referred to as the Double Jeopardy Clause.

“When a ‘case is dismissed after jeopardy attaches but before the jury reaches a verdict,’ and a mistrial is announced, a defendant may be retried only if he ‘consented to the dismissal’ or if the dismissal was ‘required by manifest necessity,'” the majority of the panel of the appeals court wrote in a November 28, 2023 order dismissing the indictment against Mr. Crowe on grounds that the U.S. government had violated his rights under the Double Jeopardy Clause.

Manifest Necessity is a doctrine of the U.S. Supreme Court established in 1824 from the case U.S. v. Perez. In a nutshell it provides that under “the strictest scrutiny” and circumstances, a defendant’s right against double jeopardy are not violated when exigent events necessitate a mistrial and the defendant would need to face a new jury. A general example of this is when there is a hung jury following a trial, prosecutors have the option to start a new trial with a new jury based on the same charges.

On the morning of March 21, Mr. Lujan objected to the severance several times, and also informed the judge that he would need to resign as Mr. Crowe’s attorney if she severed Crowe from the case.

“In response to the district court’s mention of a potential severance, Crowe’s counsel interjected several times to clarify that Crowe did not want to be tried outside of the then-current proceeding: ‘Well, my client does not want to be severed …. He does not want to be severed,” the appeals ruling states.

The judges also found that despite the government’s appeal-level argument that Mr. Crowe consented to the mistrial, all evidence pointed to the opposite.

The judges criticized Ms. Tydingco-Gatewood as well, briefly: “Although we review determinations of manifest necessity for abuse of discretion, the district court made no such determinations here. To the contrary, the district court stated that it was ‘not required to analyze severance under the manifest necessity test.’ When the district court ‘evinc[es] a concern for the possible double jeopardy consequences of an erroneous ruling,’ deference may be appropriate despite its ‘fail[ure] to find manifest necessity in those words.’ Arizona v. Washington, 434 U.S. 497, 515-17 (1978). But here, unlike in Washington, the district court expressly disavowed any consideration of double jeopardy implications.”

The appeal court judges, however, did not blame the judge, but the prosecutor, Ms. Miller, because of what she said in chambers on March 21, when the judge insisted on severing Mr. Crowe. The appellate judges wrote, “In any event, a finding of manifest necessity here would warrant ‘the strictest scrutiny,’ given evidence that the government caused the mistrial by erroneously advising the court that it had ‘absolute authority under Rule 14 to sever’ Crowe without declaring a mistrial.”

One judge on the appellate panel dissented, blaming Mr. Lujan for the quagmire the district court judge found herself in, and the mistake that was made that caused the double jeopardy. In his dissent, he wrote that mistake should not have led to a dismissal of the charges with prejudice, and the matter should have been remanded to Ms. Tydingco-Gatewood for further review.

The dissenting judge, in an opinion longer than the majority opinion, continuously referred to Mr. Lujan’s “delay tactics,” painting the picture of a trouble maker for his client on the court.

“In rejecting Crowe’s attempt to again delay his trial, the court made the legal mistake of thinking that double jeopardy principles don’t apply to the mere severance of one defendant from a trial,” the lone dissenter wrote. “That was error, but not fixable error in my view.”

After the March 21, 2022 severance, another one of Mr. Crowe’s attorneys – William Gavras – filed a motion to dismiss the case against Mr. Crowe based on the Double Jeopardy doctrine, and Ms. Tydingco-Gatewood denied the motion. From there, Mr. Lujan had the matter appealed to the U.S. Ninth Circuit Court of Appeals.

Two days ago, the majority of the court panel wrote that the judge’s decision on the Gavras motion was “REVERSED and REMANDED for dismissal of the indictment with prejudice.”

Ms. Miller can never bring those charges against Mr. Crowe again, and he is a free man without the apologies of the United States Attorney’s Office.