United States v. Julien

United States Court of Appeals
For the First Circuit

No. 02-1765

UNITED STATES,

Appellee,

v.

GARRY JULIEN,

Defendant, Appellant.

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

[Hon. George Z. Singal, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.

William Maselli for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula
D. Silsby, United States Attorney, was on brief for appellee.

February 3, 2003
 LYNCH, Circuit Judge. Garry Julien was charged with

conspiracy with intent to distribute cocaine base and possession

with intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841 (2000) and 18 U.S.C. § 2 (2000). He was tried in December

2001 along with a codefendant, Brian Goodine. The five-day trial

ended with a conviction for Goodine but a hung jury for Julien;

over Julien's objection, the district court declared a mistrial on

the charges against him.

After trial, Julien moved to dismiss the indictment on

the basis that a second trial on the charges would violate the

Double Jeopardy Clause. U.S. Const. amend. V. The district court

denied the motion. At the second trial, Julien was convicted on

the possession with intent charge. He now appeals the denial of

his motion to dismiss the indictment. He also raises insufficiency

of the evidence and prosecutorial misconduct claims. We reject all

of his claims and affirm the conviction.

I.

We sketch only the basic facts here, and delve into the

details, where they are relevant, in the legal analysis. Julien

was arrested on March 19, 2001, when the police responded to a

report from a motel manager in Saco, Maine about the odor of

marijuana coming from a room. When the police entered, they found

Julien, Goodine, and two other occupants (Ricardo King and Bertram

Leslie). There was drug paraphernalia, cash, and a small quantity

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of loose marijuana and bagged crack cocaine in the room. On the

ground outside the room's open window, police discovered

approximately 200 grams of crack cocaine in a plastic bag, as well

as some marijuana, razor blades, an electronic scale, and a plate

with what appeared to be cocaine residue. Julien, King, and

Goodine were indicted; King became a cooperating witness against

the others and testified at both trials. Leslie was not charged;

he also testified at both trials.

The first trial, with Julien and Goodine as defendants,

began on Monday, December 10, 2001. The jury heard some fourteen

hours of testimony over the following three and a half days, and

began deliberating just before 1 p.m. on Thursday, December 13.

The next day at 8 p.m., after sixteen total hours of deliberations,

the jury indicated that it was deadlocked on charges against one

defendant. The court accepted a guilty verdict as to Goodine and

declared a mistrial as to Julien.

Julien moved to dismiss the indictment on double jeopardy

grounds on December 21, 2001. In a comprehensive Memorandum and

Order issued January 4, 2002, the district court denied the motion.

Julien did not take an interlocutory appeal of that denial before

the second trial, as he was entitled to do under Abney v. United

States, 431 U.S. 651, 662 (1977). Instead he chose to undergo the

second trial before raising the double jeopardy issue on appeal.

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 Julien's second trial, held before a different judge in

March 2002, ended with his conviction on the charge of possession

with intent to distribute; there was a hung jury on the conspiracy

count. On the government's motion, the indictment on the

conspiracy charge was dismissed on June 12, 2002.

II.

Julien's appeal raises four issues. He argues that

there was no manifest necessity for the declaration of a mistrial

in the first trial; that there was insufficient evidence at the

first trial to support a conviction, both as to conspiracy and as

to possession with intent to distribute; that the evidence on both

counts was insufficient at the second trial; and that certain

actions by the prosecution in the two trials constitute government

misconduct.

A. Mistrial and Double Jeopardy

The Double Jeopardy Clause requires that no person "be

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

limb." U.S. Const. amend. V.

For a defendant, there are serious consequences stemming

from enduring two trials on a single set of criminal charges.

Among other things, the government may gain an advantage at the

second trial for having seen the defense case at the first trial.

As a result, courts do not lightly grant mistrials after jeopardy

has attached. See Illinois v. Somerville, 410 U.S. 458, 471

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(1973). Still, a hung jury is the classic instance where a

mistrial may be warranted, and that has been so in our

jurisprudence for at least 175 years. See United States v. Perez,

22 U.S. (9 Wheat.) 579 (1824) (Story, J.). The government must

shoulder the "heavy" burden of justifying a mistrial by

demonstrating the "manifest necessity" for a mistrial when the

defendant objects. Arizona v. Washington, 434 U.S. 497, 505

(1978).

Our review of a district court's decision that there was

manifest necessity justifying the declaration of a mistrial is for

abuse of discretion. Id. at 510 & n.28. There is case law

suggesting that where constitutional concerns are raised by the

denial of a motion to dismiss premised on double jeopardy grounds,

as here, then the ultimate conclusion is reviewed de novo, see

United States v. DiPietro, 936 F.2d 6, 8 (1st Cir. 1991), while the

subsidiary factual determinations are reviewed only for clear

error. United States v. Bradshaw, 281 F.3d 278, 291 (1st Cir.

2002). In practice, though, the reviewing court reviews whether

the district court abused its discretion, subject to heightened

rigor in the review. United States v. Keene, 287 F.3d 229, 233

(1st Cir. 2002); Bradshaw, 281 F.3d at 291. Errors of law, of

course, constitute abuse of discretion. Koon v. United States, 518

U.S. 81, 100 (1996).

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 In reviewing the mistrial determination we look, inter

alia, at whether the district court considered all the relevant

factors, including the availability of alternatives to mistrial;

the positions taken by the parties at trial and whether they had an

opportunity to state their positions; and whether the court's

decision was deliberative in nature. See Keene, 287 F.3d at 234;

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

Julien makes two assertions to be evaluated in this

manner against the facts and the trial court's decision. First, he

says that the mistrial was declared at 8 p.m. on Friday night, when

the jury was exhausted and should have been given the option of

going home for the weekend and returning refreshed on Monday

morning. Second, he notes that the jury deliberated for three

hours after stating that it had reached a verdict on one defendant

but not the other; he argues that the jury therefore spent only

three hours focused on Julien alone and that this was an

insufficient amount of time.

The course of deliberations was as follows. The jury

began deliberations at 1 p.m. on Thursday, December 13. At 5:30

p.m., in response to an offer from the court to send in dinner, the

foreperson sent a note which read, "We are not even close to a

verdict in either, do we have the option of coming back tomorrow?

We are very far apart." After consultation with counsel, the court

gave the jury the choice between deliberating longer that night or

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resuming in the morning. The jurors opted to go home for the

evening.

The jury deliberated the second day, Friday, from 8:30

a.m. until 4:30 p.m. Shortly before 4 p.m. the foreperson sent a

question asking why the jury had to decide drug quantities on the

verdict form. The court answered the question and half an hour

later another note came, stating in full, "We have reached a

decision on one defendant, but cannot agree on the second." After

some consultation between the judge and counsel, Julien proposed

that the court deliver an Allen instruction, see Allen v. United

States, 164 U.S. 492, 501 (1896), and then have the jury deliberate

for another hour before accepting its partial verdict.

The court gave a modified Allen charge. It then inquired

whether the jury wanted to keep working that evening or "whether

you feel at this time the jury is so exhausted that you need to go

home and return on Monday morning." The jurors chose to work

further that evening. An hour later, the jury asked a question

about the dates of the conspiracy, which the court answered.

At 7:50 p.m., nearly three hours after the Allen charge,

another note came: "The jury is deadlocked on both counts for one

of the defendants. There has been no movement and [we] foresee no

movement in further deliberations." Julien asked that the jury be

sent home and resume deliberations on Monday. The trial court

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decided to take the verdict on one defendant and declare a manifest

necessity mistrial on the other.

As the district court noted, the jurors had indicated

difficulty reaching agreement three times: first saying they were

"far apart," then that they "cannot agree," and finally that they

were "deadlocked." The last note came after a total of sixteen

hours of deliberation in a case which was not complex and involved

only fourteen hours of testimony. See United States v. Barbioni,

62 F.3d 5, 7 (1st Cir. 1995) (upholding manifest necessity mistrial

after almost ten hours of deliberations following short, simple

trial). Counsel was consulted at every stage. Contrary to

Julien's assertions, the record does not establish that the jurors

were too exhausted to deliberate further; the court asked them if

they were, and they elected to continue deliberating. Nor does the

record indicate, as Julien argues, that the jurors had not

completed significant deliberations concerning Julien before the

note indicating agreement on Goodine; rather, the jury's questions

and other notes suggest that it was conscientiously considering the

charges against both defendants.

The jury had reported that further efforts would be

fruitless. As the trial judge surely was concerned, there was a

risk that a jury forced to continue to deliberate after it reported

deadlock would compromise too easily, simply to be able to go home.

Such compromise might well have worked to Julien's detriment rather

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than to his benefit. There was no abuse of discretion in granting

the mistrial or in denying the subsequent motion to dismiss.1

B. Sufficiency of Evidence at First Trial

Julien argues that there was insufficient evidence to

support a conviction at the first trial. Although not argued as

such, Julien's theory seems to be that if the evidence at the first

trial is insufficient and the trial ends in a mistrial, a different

double jeopardy argument is presented to bar the government from

proceeding to retrial. Julien does not indicate a basis in law for

him to present this issue.

The government replies that, because there was no

conviction at the first trial, this claim is moot. The government

correctly notes that the conspiracy count did not result in

conviction at the second trial and has now been dismissed, and so

there is no live controversy as to that count. That still leaves

the possession with intent to distribute count.

1
The government raises, but does not press, the
question of whether this court should consider Julien to have
waived any double jeopardy argument by declining to take the
interlocutory appeal to which he was entitled under Abney, 431
U.S. at 662, and instead submitting to a second trial before
he raised the double jeopardy grounds on appeal. This court
has not ruled on the question, nor has the Supreme Court.
Abney itself says that in such circumstances "a defendant may
seek immediate appellate review," id. at 663 (emphasis added),
not that he must do so. There are reasoned arguments to be
made on both sides of this question. We need not decide the
issue, since we uphold the manifest necessity finding.

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 We will assume dubitante, in Julien's favor, that he is

in fact asserting a double jeopardy argument. Nonetheless, Julien

does not present a viable issue. In Richardson v. United States,

468 U.S. 317 (1984), the Supreme Court held:

the protection of the Double Jeopardy Clause by its terms
applies only if there has been some event, such as an
acquittal, which terminates the original jeopardy. Since
jeopardy attached here when the jury was sworn,
petitioner's argument necessarily assumes that the
judicial declaration of a mistrial was an event which
terminated jeopardy in his case and which allowed him to
assert a valid claim of double jeopardy.

... [T]he failure of a jury to reach a verdict is not an
event which terminates jeopardy.

Id. at 325 (citations omitted); see also Sattazahn v. Pennsylvania,

123 S. Ct. 732, 737-39 (2003) (comparing different effects of

mistrial and acquittal on double jeopardy protections). Because

jeopardy does not terminate when the court declares a valid

mistrial based on the inability of the jury to agree, defendant's

claim of insufficiency of the evidence at the first trial presents

"no valid double jeopardy claim to prevent his retrial."

Richardson, 468 U.S. at 326; accord United States v. Willis, 102

F.3d 1078, 1081 (10th Cir. 1996); United States v. Coleman, 862

F.2d 455 (3d Cir. 1988).

To give Julien the benefit of all conceivable arguments,

we consider whether there is a due process or non-constitutional

claim, separate from the double jeopardy claim, that he is entitled

to have the sufficiency of the evidence at the first trial

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determined at some point. Under Richardson, a denial of a motion

to dismiss for insufficiency of the evidence is an interlocutory

order; it is not appealable after a mistrial and before a second

trial except on double jeopardy grounds (grounds which the Supreme

Court has rejected on the merits). The defense argument would be

that there is a final appealable judgment after a conviction at the

second trial, and Julien may then appeal otherwise non-final

rulings when he appeals from that judgment of guilt. Although

Richardson does not expressly foreclose this point, there is

language in both Justice Rehnquist's majority opinion and Justice

Stevens' dissent which tends to demonstrate that the Supreme

Court's majority would be inhospitable to such a claim. See 468

U.S. at 326; id. at 334-35 (Stevens, J., dissenting); see also 15B

Wright, Miller & Cooper, Federal Practice & Procedure § 3918.5, at

496-97 (2d ed. 1992). That inhospitality governs our decision. We

hold that defendant may not, on appeal from a judgment of guilt in

a second trial following a mistrial, then raise a claim that he was

wrongly denied his motion for acquittal on insufficiency of the

evidence at the first trial.

This court has also applied Richardson in a related

context to hold that a defendant may not argue that the vacating of

his conviction for legal error on direct appeal from his first

trial permits an evaluation of the sufficiency of the remaining

evidence at the first trial. United States v. Porter, 807 F.2d 21,

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24 (1st Cir. 1986); see also United States v. Carrillo-Figueroa, 34

F.3d 33, 38-39 (1st Cir. 1994) (double jeopardy claim concerning

insufficiency of evidence at first trial waived by defendant's

request for mistrial, but Richardson would foreclose claim even if

preserved); United States v. Reis, 788 F.2d 54, 56-57 (1st Cir.

1986) (no different standard applies to motion of acquittal after

mistrial compared to other motions for acquittal). It is not open

to Julien to make an argument based on insufficiency of the

evidence at a trial which ended in a mistrial.

C. Sufficiency of Evidence at Second Trial

Julien also argues that the evidence at the second trial

was insufficient to show possession with intent to distribute.2 In

reviewing this claim we take the evidence in the light most

favorable to the government; Julien must show that no rational jury

could have convicted him. United States v. Collazo-Aponte, 216

F.3d 163, 191 (1st Cir. 2000).

Julien argues that the jury most likely convicted him on

an aiding and abetting theory as to the events on March 19, 2001,

the date of his arrest in the motel room. He argues that the

evidence established only that he was present that day, with

knowledge that others there possessed drugs, perhaps for sale. In

any event, he says, proof was not beyond a reasonable doubt.

2
As noted above, no challenge to the evidence on the
conspiracy charge is available because that charge was
dismissed.

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 There was sufficient evidence at the second trial of

possession with intent to distribute cocaine. King testified that

Julien obtained cocaine from his own sources in New York and sold

the drugs in Maine. There was evidence that Julien had rented

another motel room in Old Orchard Beach from which drugs were sold.

Telephone records showed calls were made from the room to a number

of crack cocaine users in the area. Penny Oulette testified that

she had regularly purchased crack cocaine from Julien, King, and

Goodine, including on a visit to the raided motel room a day or two

before the arrests.

When the police entered the motel room on March 19,

Julien and King were both near the open window; the jury could

infer that Julien threw the incriminating evidence out the window.

After the police entered, an officer saw Julien jump from beside

the window to the nearest bed. Under the bed where Julien landed

was $900 in cash.

Julien testified in his own defense that it was King who

threw the drugs and paraphernalia out the window, that he did not

deal cocaine, that he had rented the Old Orchard Beach motel room

as a favor to King, and that he knew nothing of the cash or the

drug paraphernalia in the Saco motel room. Goodine also testified

on Julien's behalf, denying that either of them sold drugs.

The jury's decision came down to an assessment of the

credibility of these various witnesses. Julien had ample

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opportunity to impeach the government's witnesses. A reasonable

jury could certainly conclude that Julien was in knowing possession

of drugs intending to sell them or that, at least, he was aiding

and abetting others who were doing so. Julien has not met the high

bar required to overturn a jury verdict.

D. Prosecutorial Misconduct

Julien makes prosecutorial misconduct claims arising out

of both the first and second trials. There are no claims available

related to the first trial because no conviction resulted. The

principal claims of misconduct in the second trial arise out of the

government's use of King and Leslie as witnesses. Julien says

Leslie's testimony at the second trial was inconsistent with his

testimony at the first trial, that aspects of King's testimony were

inherently implausible, and that the government recognized as much.

Julien was able to take advantage of both points on impeachment.

The trial court properly instructed that issues of credibility were

for the jury. There was no misconduct; neither was there error.

Julien received a fair trial.

Julien's conviction is affirmed.

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