United States v. Keene

United States Court of Appeals
For the First Circuit

No. 01-2233

UNITED STATES OF AMERICA,

Appellee,

v.

JOEL KEENE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Taylor D. Fawns, with whom William Maselli was on brief, for
appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Paula D. Silsby, United States Attorney, was on brief,
for appellee.

April 29, 2002
 SELYA, Circuit Judge. In this interlocutory appeal,

defendant-appellant Joel Keene beseeches us to reverse an order

of the district court refusing to dismiss an indictment on

double jeopardy grounds. The appellant asseverates that the

district court should have acknowledged that it acted too

hastily in declaring a mistrial, over the appellant's objection,

instead of exhorting the jury to deliberate further, and,

accordingly, should have barred further prosecution of the

charges against him. Finding this asseveration unpersuasive, we

affirm the district court's denial of the motion to dismiss.

I. BACKGROUND

A federal grand jury sitting in the District of Maine

indicted the appellant on drug-trafficking and criminal

forfeiture charges. See 21 U.S.C. §§ 841(a)(1), 853. Trial on

the drug-trafficking counts commenced on June 25, 2001. By

early afternoon, the government had completed its case in chief.

The court adjourned at that juncture. The jurors returned the

next morning and the appellant began to present his defense.

Later that day, the appellant rested, the attorneys made their

closing arguments, and the court charged the jury.

The jurors began deliberating at approximately 1:00

p.m. on June 26. Shortly thereafter they sent the judge a note.

Finding the note opaque, the judge conferred with counsel. An

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exchange of notes followed, punctuated by periodic conferences

between the judge and the lawyers. Eventually, the jury

requested that certain testimony be read back. After again

conferring with counsel, the judge acceded to the request but

limited the scope of the read-back. The jury then retired to

continue its deliberations.

Within a relatively short time, the foreperson informed

the court that the members of the jury could not agree upon a

verdict. The judge consulted with counsel, who jointly

suggested that the jurors be allowed to go home for the day and

resume deliberations the next morning. Concerned that this

course of action, unexplained, might lead jurors to conclude

that they would be obliged to deliberate indefinitely, the judge

told the lawyers that he preferred to provide the jurors with

instructions of the sort customarily given to deadlocked juries

and offer them the opportunity to choose between going home or

continuing their deliberations. The attorneys agreed to this

proposal.

The judge thereupon returned the jurors to the

courtroom and gave a modified Allen charge. See Allen v. United

States, 164 U.S. 492, 501 (1896). He concluded his remarks by

presenting the jurors with a choice of how to proceed. After

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whispered consultations in the jury box, the foreperson advised

the court that the jurors wished to continue deliberating.

Approximately an hour and a half later — at 6:22 p.m.

— the jurors sent a note to the judge, reporting that they were

"truly deadlocked." To emphasize the point, the foreperson

underlined a word fragment in the phrase "cannot come to a

unanimous decision." The judge conferred with counsel, and all

parties concurred that it would be premature to abandon hope for

a unanimous verdict. The judge, with the lawyers' approbation,

agreed to send the jurors home and bring them back the next

morning to resume deliberations. However, defense counsel asked

for something more: a supplemental instruction that would in

essence amount to a second modified Allen charge. The judge

demurred, citing this court's decision in United States v.

Barone, 114 F.3d 1284, 1305 (1st Cir. 1997), and dismissed the

jury for the day without giving the requested instruction.

The jurors reconvened on June 27. Almost immediately,

they asked that additional testimony be read back. After

soliciting the attorneys' views and engaging in an exchange of

notes with the jury, the court permitted a read-back of certain

testimony. The jury retired to continue its deliberations at

about 10:44 a.m. Around noontime, the jurors transmitted yet

another note to the judge declaring that "we cannot come to a

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unanimous decision" (emphasis in the original). This time, each

juror signed the communiqué.

The judge promptly conferred with counsel. The defense

attorney renewed his request for a second modified Allen charge.

The judge denied the request, explaining that the case did not

present special circumstances of a type or kind that would

warrant such an unusual measure. Instead, the judge sent the

jury a note inquiring whether there was any possibility that, in

time, it might arrive at a unanimous decision on either of the

two counts. In a reply note, the jury responded in the negative

(again emphasizing the word fragment "not"). Over the

appellant's objection, the judge declared the jury hopelessly

deadlocked and ordered a mistrial.

In due course, the appellant moved to dismiss the

indictment, arguing that a retrial would offend the Double

Jeopardy Clause. The district court wrote a thoughtful rescript

in which it denied the motion. United States v. Keene, 158 F.

Supp. 2d 93, 95 (D. Me. 2001). This interlocutory appeal

followed.

II. ANALYSIS

Under ordinary circumstances, a defendant cannot take

an immediate appeal from an interlocutory order in a criminal

case. There is a well-recognized exception, however, that

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materializes when the defendant is able to mount a colorable

claim that further proceedings in the trial court will

constitute double jeopardy. See Abney v. United States, 431

U.S. 651, 662 (1977); United States v. Stoller, 78 F.3d 710, 714

(1st Cir. 1996). This is such a case.

We divide our analysis into segments. We begin by

limning the manner in which the district court's power to

declare mistrials implicates double jeopardy principles. We

then turn to the merits of the appellant's claim.

A. Double Jeopardy Principles.

The Double Jeopardy Clause ensures that no "person be

subject for the same offence to be twice put in jeopardy of life

or limb." U.S. Const. amend. V. This provision "embodies a

triumvirate of safeguards," United States v. Ortiz-Alarcon, 917

F.2d 651, 653 (1st Cir. 1990), including protection against

serial attempts by the government to convict a defendant on a

single charge. The concept behind this branch of the Double

Jeopardy Clause "is that the State with all its resources and

power should not be allowed to make repeated attempts to convict

an individual for an alleged offense, thereby subjecting him to

embarrassment, expense and ordeal, and . . . enhancing the

possibility that even though innocent he may be found guilty."

Green v. United States, 355 U.S. 184, 187-88 (1957).

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 When a mistrial is declared prior to the rendition of

a jury verdict, double jeopardy principles sometimes may bar

further prosecution of the charge. E.g., United States v.

Pierce, 593 F.2d 415, 419-20 (1st Cir. 1979) (foreclosing a

retrial, on double jeopardy grounds, following the declaration

of a mistrial over objection and without sufficient exploration

of available alternatives). But that is the exception to the

rule: an appropriately declared mistrial does not insult

principles of double jeopardy (and, therefore, does not bar

retrial). See Arizona v. Washington, 434 U.S. 497, 505 (1978);

United States v. Simonetti, 998 F.2d 39, 41 (1st Cir. 1993).

Consequently, the denial of a motion to dismiss after a jury

deadlock usually will not violate the Double Jeopardy Clause.

Richardson v. United States, 468 U.S. 317, 324 (1984); United

States v. Barbioni, 62 F.3d 5, 7 (1st Cir. 1995). It is against

this backdrop that we evaluate the merits of the instant appeal.

Our standard of review is intricate. Technically, we

are called upon to review the district court's denial of a

motion to dismiss on double jeopardy grounds. On its face, that

motion presents a pure question of law. As such, it ordinarily

would engender de novo review. E.g., United States v. Morris,

99 F.3d 476, 478 (1st Cir. 1996).

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 Here, however, there is a wrinkle. In certain cases,

the correctness of the district court's decision ultimately

hinges on the justification for ordering a mistrial. The

decision as to whether to declare a mistrial speaks to the

informed discretion of the district court, and is customarily

reviewed only for abuse of that discretion. See United States

v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994). Where, as here, a

motion to dismiss on double jeopardy grounds trails in the wake

of the district court's declaration of a mistrial, both the

Supreme Court and this court have consistently applied an abuse

of discretion standard in reviewing appeals from the denial of

such motions. E.g., Arizona v. Washington, 434 U.S. at 514

(explaining that, in such situations, "reviewing courts have an

obligation to satisfy themselves that . . . the trial judge

exercised sound discretion in declaring a mistrial") (internal

quotation marks omitted); United States v. Jorn, 400 U.S. 470,

486 (1971) (finding preclusion on double jeopardy grounds

because "the trial judge . . . abused his discretion in

discharging the jury"); Barbioni, 62 F.3d at 7 (adopting abuse

of discretion standard in similar circumstances); Simonetti, 998

F.2d at 42 (same). We therefore review the district court's

decision here for abuse of discretion.

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 We caution however, that in cases of this genre, review

for abuse of discretion entails heightened rigor. See Jorn, 400

U.S. at 485 (demanding a "scrupulous exercise of judicial

discretion" in this context). As we use the term, it

encompasses multiple layers of inquiry. See Koon v. United

States, 518 U.S. 81, 98-100 (1996). In the course of such

review, "we accept the trial court's factual findings only to

the extent that they are not clearly erroneous." United States

v. Bradshaw, 281 F.3d 278, 291 (1st Cir. 2002). In contrast, we

evaluate the district court's articulation of applicable legal

rules de novo, cognizant that a mistake of law is equivalent to

an abuse of discretion. In re Grand Jury Subpoena, 138 F.3d

442, 444 (1st Cir. 1998); United States v. Snyder, 136 F.3d 65,

67 (1st Cir. 1998). Only then do we inquire whether, in view of

all the facts and circumstances, the trial court's finding of a

manifest necessity to discharge the jury and declare a mistrial

constitutes a misuse of its discretion. See Illinois v.

Somerville, 410 U.S. 458, 462-63 (1973); Brady v. Samaha, 667

F.2d 224, 228 (1st Cir. 1981).

B. The Merits.

The defendant's right to have a particular jury, once

sworn, conclude the trial of his case is of a high order of

importance. Consequently, the prosecution bears the burden of

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justifying the declaration of a mistrial in a criminal case.

Arizona v. Washington, 434 U.S. at 505. The shorthand reference

for the requisite quantum of justification has come to be known

as "manifest necessity." The Supreme Court enunciated this

standard nearly two centuries ago:

[I]n all cases of this nature, the law has
invested Courts of justice with the
authority to discharge a jury from giving
any verdict, whenever, in their opinion,
taking all the circumstances into
consideration, there is a manifest necessity
for the act, or the ends of public justice
would otherwise be defeated. . . . [T]he
power ought to be used with the greatest
caution, under urgent circumstances, and for
very plain and obvious causes . . . .

United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).

In previous cases, we have deemed a variety of factors

relevant to the trier's determination of whether manifest

necessity existed. These include: (1) whether counsel were

afforded an opportunity to be heard on the issue; (2) whether

alternatives to a mistrial were explored; and (3) whether the

judge's decision was made after sufficient reflection.

Simonetti, 998 F.2d at 41. While this enumeration is not etched

in stone — each case is different, and the situations that may

arise are simply too diverse to render a mechanical checklist

desirable — the Simonetti factors often serve as a useful

starting point.

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 Here, those factors strongly support the district

court's chosen course of action. At each step in the

deliberative process, the judge went to great lengths to meet

with the attorneys, solicit their views, and share his thoughts

with them. Prior to making critical decisions, he afforded both

lawyers an opportunity to be heard and considered their

insights. Moreover, the judge and jury exchanged notes on no

fewer than nine separate occasions, and after each exchange, the

judge hewed to our recommended praxis for the handling of such

missives. See United States v. Hernandez, 146 F.3d 30, 35 (1st

Cir. 1998) (discussing that praxis).

The record also reflects that the second and third

Simonetti criteria were satisfied. The trial judge carefully

studied all the available options and reflected not only on the

parties' positions but also on the various ways in which he

might permissibly nudge the jurors toward a verdict without

unduly pressuring them. Although the option of a mistrial was

available the second time that the jury declared itself at an

impasse, the judge, in close consultation with counsel, eschewed

that option in favor of a plan of action reasonably calculated

to enhance the possibility of a verdict. Only when he concluded

that all hope was lost did he discharge the jury.

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 In a case such as this, an appellate court's inquiry

inevitably reduces to whether the district judge's declaration

of a mistrial was reasonably necessary under all the

circumstances. Considering what transpired here — the brevity

of the trial, the relative simplicity of the questions

confronting the jury, the length of deliberations, the fact that

the court already had given a modified Allen charge without

success, and the increasingly adamant manner in which the jurors

announced that they were deadlocked — the judge's decision to

declare a mistrial seems well within the realm of his

discretion. Put another way, the record manifests the "high

degree" of necessity that is required before the presiding judge

lawfully can declare a mistrial, over the defendant's objection,

in a criminal case. Barbioni, 62 F.3d at 7.

The appellant attempts to blunt the force of this

reasoning by insisting that the judge's failure to give a second

modified Allen charge before dismissing the jury constituted a

failure to consider a viable alternative (and, thus, undermined

both his finding of manifest necessity and his eventual

declaration of a mistrial). This contention is meritless.

After all, the requirement that a judge consider alternatives is

not tantamount to a requirement that the judge employ a

particular alternative upon demand.

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 Though useful in certain circumstances, a modified

Allen charge — colloquially called a "dynamite charge" — is not

risk-free. Jurors, particularly those who advocate minority

views, may feel pressured to relinquish conscientiously-held

beliefs. See Barone, 114 F.3d at 1304. We have warned that

"the problem is exacerbated when the charge is given a second

time, after the jury has already been told to reconsider and

again has found itself in deadlock." Id. Thus, we have made it

pellucid that the giving of successive Allen charges is an

extraordinary measure — and one that should be shunned absent

special circumstances. See id. at 1305.

Here, the record belies any claim that the trial judge

abused his discretion in this regard. The appellant twice

requested a second modified Allen charge — once on the early

evening of June 26 and again at midday on June 27 — and the

judge gave each of those requests serious consideration. He

explained in some detail why he declined to take so unusual a

step. We explain briefly why, on this record, the judge's

declination was eminently reasonable.1

1The court's refusal, on June 26, to repeat the modified
Allen charge need not detain us, as the court allowed
deliberations to continue at that time. We therefore focus
exclusively on the court's refusal to give the requested
instruction on June 27 (when it discharged the jury and declared
a mistrial).

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 By the end of the deliberations in this case, the

prospects for unanimity were inauspicious — and the judge knew

as much. See Keene, 158 F. Supp. 2d at 96. He also knew that

the jurors had deliberated for about as long as they had heard

evidence; that the dispute was sharply focused; that the first

modified Allen charge had proven futile; and that the jurors had

been increasingly emphatic in declaring themselves deadlocked.2

The appellant, though ably represented, has identified no

special circumstances favoring the utterance of yet another

modified Allen charge. Nor is this an oversight: our

independent scrutiny of the record leaves us unconvinced that

any benefit likely to be derived from a second modified Allen

charge would have offset the obvious risk of jury coercion

inherent in pressing forward with such an instruction. Given

this mise-en-scène, there is simply no basis for finding that

the judge abused his discretion in refusing to reiterate the

modified Allen charge.

In a last-ditch effort to stem the tide, the appellant

argues that the district court erred in giving the modified

Allen charge at too early a time. This argument is both too

late and too little. First, the appellant consented to that

2
Indeed, the trial judge — a seasoned veteran — informed the
lawyers "that for the first time in my professional career, all
12 jurors separately have signed the [deadlock] note."

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instruction when it was given, and he cannot now be heard to

complain that it should have been withheld. See Barbioni, 62

F.3d at 7 n.2. Second, the circumstances at that time were not

inimical to the giving of such a charge, and we discern no error

— plain or otherwise — in the trial court's decision to follow

that course.

III. CONCLUSION

We need go no further. No less an authority than the

Supreme Court has emphasized that "the trial court is in the

best position to assess all the factors which must be considered

in making a necessarily discretionary determination whether the

jury will be able to reach a just verdict if it continues to

deliberate." Arizona v. Washington, 434 U.S. at 510 n.28. This

case is a paradigmatic example of that tenet: the trial judge

reached a plausible conclusion and acted upon it. Since the

record supports the view that manifest necessity existed for the

district court's order, the appellant's post-trial motion to

dismiss the indictment was properly denied. Accordingly, the

Double Jeopardy Clause does not bar the government from retrying

the appellant.

Affirmed.

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