United States v. McIntosh

United States Court of Appeals
For the First Circuit

No. 03-2522

UNITED STATES OF AMERICA,

Appellee,

v.

DENNIS P. MCINTOSH,

Defendant, Appellant.

No. 03-2524

UNITED STATES OF AMERICA,

Appellee,

v.

HERBERT H. CATES,

Defendant, Appellant.

_____________________

No. 03-2566

UNITED STATES OF AMERICA,

Appellee,

v.

JANICE DOUGLAS A/K/A JANICE BALTIMORE,

Defendant, Appellant.

______________________
 APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Howard, Circuit Judges.

Willie J. Davis, with whom Davis, Robinson & White, LLP, James
S. Dilday, and Grayer & Dilday were on consolidated brief, for
appellants McIntosh and Douglas.
Peter Charles Horstmann, with whom Partridge, Ankner &
Horstmann, LLP was on consolidated brief, for appellant Cates.
Peter A. Mullin, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for the
United States.

August 20, 2004
 SELYA, Circuit Judge. A federal grand jury charged

defendants-appellants Dennis P. McIntosh, Janice Douglas, and

Herbert H. Cates with multiple counts of mail and wire fraud. See

18 U.S.C. §§ 1342, 1343. After their first trial ended in a hung

jury, the appellants moved to dismiss the indictment, asserting

that further prosecution would run afoul of the Fifth Amendment's

double jeopardy bar. The district court denied this joint motion

and the appellants brought these interlocutory appeals. We affirm

the denial of the motions to dismiss.1

I. BACKGROUND

Given the nature of these appeals, we trace the case's

procedural history with care. The appellants were indicted

following what the government alleged was a fraudulent scheme to

purchase over $3,000,000 worth of computer equipment using a

university's discount with the intent to resell the merchandise at

a profit. The case went to trial on July 28, 2003. The jury began

its deliberations on August 11, 2003, at approximately 1:20 pm. At

about 3:00 pm, the foreperson reported that Juror No. 1 had become

ill. The district court thereupon excused the jury for the day.

That afternoon, several jurors reported to the deputy

clerk that Juror No. 1 had been interrupting the deliberations by

1
All three defendants pressed their appeals through briefing
and oral argument. While this opinion was at the printer, Douglas
voluntarily dismissed her appeal pursuant to a plea agreement.
Thus, this opinion pertains only to the appeals prosecuted by
McIntosh and Cates.

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frequent trips to the bathroom. To make matters worse, the jurors

alleged that he had been speaking while there on his cell phone, in

violation of courthouse policy. The district court discussed the

matter with counsel for the parties and decided to interview Juror

No. 1 the next day.

Overnight, the clerk received a voicemail from a juror

stating his belief that Juror No. 1 would be an impediment to

future deliberations. The juror added that Juror No. 1 "had a

problem when we got back to the courtroom as well, stating that he

feels that everybody is innocent and that nobody is going to change

his mind. . . . [W]hen we told him that we have to go through the

steps and the process and everything . . . that's when he started

feeling sick."

The next morning, the district court prudently played the

voicemail for all counsel and proceeded to interview Juror No. 1

out of earshot of the remaining jurors. The talesman admitted that

he had his cell phone with him the previous day but denied using

it. When the court asked if he could deliberate in good faith, the

juror responded "absolutely."

At the request of the Assistant United States Attorney

(AUSA) and over defense counsels' objections, the district court

also conducted individualized voir dire interviews of the

foreperson and Juror No. 5. Although both had seen Juror No. 1

with his cell phone, neither had actually seen him using it. The

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district court then brought all twelve jurors into the courtroom at

9:39 am, directed them to continue their deliberations, and sent

them back to the jury room.

At 2:15 pm, the jury reported that it was deadlocked.

After showing the note to counsel, the district court brought the

jury into the courtroom and delivered a modified Allen charge. See

Allen v. United States, 164 U.S. 492, 501 (1896); see also United

States v. Keene, 287 F.3d 229, 235 (1st Cir. 2002).

Once the jury left to continue deliberations, the court

stated that if it received another note indicating a continuing

deadlock, it would not give a further Allen charge but, rather,

would declare a mistrial. None of the lawyers for the several

defendants voiced any objection to this proposed course of action.

The foreperson sent a second such note at 3:10 pm, this time

indicating that the jury had reached an impasse because one juror

had made up his mind before deliberations began and would not

budge. The district court again consulted with the attorneys. The

prosecutor suggested interviewing the foreperson to determine

whether the jury had actually been deliberating, but defense

counsel unanimously objected to that proposal. Ultimately, the

district court summoned the foreperson, who reported that the

recalcitrant juror (whom she did not identify) had made up his mind

and "will not deviate no matter what is presented before him."

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 Out of earshot of the foreperson, the district court

asked the lawyers if they had further questions. Douglas's counsel

responded, "I think you asked everything that need be asked."

McIntosh's counsel concurred. The prosecutor pressed for an

inquiry into whether the recalcitrant juror was refusing to talk

about the evidence, but the district court rejected that entreaty.

The court then instructed the foreperson to return to the jury room

and determine whether the jurors were deadlocked on all counts.

At 4:05 pm, the jury sent a note asking to be excused for

the day. This note also inquired whether the court would like to

meet with the recalcitrant juror and stated that the other jurors

felt the deliberations would end in a deadlock.

The district court decided to speak with the recalcitrant

juror (who turned out to be Juror No. 1). On questioning by the

court in the presence of all counsel, Juror No. 1 vouchsafed that

he had not made up his mind before the case had been submitted to

the jury. He also said that he and the other jurors had been

debating the charges and going through the evidence. When

specifically queried whether his opinion as to guilt or innocence

was based on his "gut or on the evidence," he responded "[i]t's on

my evidence." Upon concluding her interrogation, the district

judge asked the attorneys if they had any further questions. There

were no takers.

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 After Juror No. 1 left the room, Douglas's lawyer

suggested that the district court declare a mistrial. The

prosecutor opposed a mistrial and instead recommended that the

court inquire further of the foreperson (a recommendation that the

district court chose not to accept). Although tentatively

concluding that the deliberations were at an impasse, the district

court nonetheless instructed the jury to deliberate anew.

While the jury continued its deliberations, the district

court conferred with the attorneys. The court specifically asked

whether any defense counsel believed there would be a bar to

retrial if the court were to declare a mistrial. None of them

responded affirmatively.

The district court received a fourth jury note at

approximately 4:45 pm. The jurors again reported that they were

deadlocked. After the court told the parties of this billet-doux,

the prosecutor informed the court that he had secured a criminal

background check on Juror No. 1 and that the check showed that the

juror had experienced fourteen arrests during the preceding ten

years (all of which had been dismissed or continued without

findings). One was very recent. The prosecutor contended that

this pedigree raised questions about Juror No. 1's eligibility to

serve, both because of his criminal history per se and because the

information given during the jury qualification process was

arguably false.

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 Following further discussions with counsel, the district

court met again with Juror No. 1. The juror acknowledged his

arrest history but reaffirmed that he had never been convicted of

a felony. Consequently, he believed that he had answered the jury

questionnaire truthfully. The court assured the juror — who

displayed considerable pique that his criminal history had been

investigated and disclosed — that it credited his good faith in

answering the jury questionnaire and sent him back to the jury

room.

At that point, the chambers conference resumed. The

judge acknowledged that Juror No. 1's criminal history cast some

doubt on his qualifications to serve and advised counsel that she

would study the question overnight. She also stated that if she

found Juror No. 1 qualified to serve, she would deem the jury

hopelessly deadlocked and declare a mistrial.

On the next trial day (August 13), Douglas's lawyer filed

a motion seeking both a mistrial and dismissal of the indictment.

The motion papers asserted that the government's actions in

performing a background check on a deliberating juror were both

improper and designed to provoke a mistrial. At the beginning of

that day's court session, the district court ruled that Juror No.

1 was not disqualified from serving on the jury. None of the

defendants objected to this determination. The court then

announced its intention to declare a mistrial because of the hung

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jury. Douglas's lawyer asked for a ruling on his pending motion

and the court denied it.

The district court and counsel then discussed the timing

of a new trial. During this discussion, Douglas's attorney stated

that he objected to the mistrial "for the other reasons on the

record." This was presumably a reference to reasons apart from the

allegation of prosecutorial misconduct. The district court

responded that it did not "know what the other reasons" were, but

the attorney chose not to elaborate. The court then reaffirmed its

denial of Douglas's motion regarding the prosecutor's conduct and

set a new trial date.

Before the district court returned the jury to the

courtroom, Douglas's lawyer again objected to the mistrial without

specifying the reasons for his objection. The district court's

response indicated that it understood counsel to be renewing his

earlier objection. Viewed in context, this understanding was

reasonable. In all events, the lawyer did not advance any

additional grounds for the objection. After the jury had been

brought into the courtroom, the judge formally declared a mistrial.

On October 10, 2003, the defendants filed a joint motion

to dismiss the indictment. The district court denied that motion

five days later. These interlocutory appeals ensued. We have

jurisdiction under an established exception to the final judgment

rule, which allows criminal defendants presenting colorable claims

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of double jeopardy to prosecute immediate appeals. Abney v. United

States, 431 U.S. 651, 662 (1977); United States v. Toribio-Lugo,

___ F.3d ___, ___ (1st Cir. 2004) [No. 01-2565, slip op. at 5];

Keene, 287 F.3d at 232.

II. ANALYSIS

A criminal defendant has a "valued right" to have his or

her guilt or innocence determined by the jury to which the

prosecution's case is first presented. United States v. Jorn, 400

U.S. 470, 484 (1971). This right is valued because of the onus of

forcing a defendant to undergo multiple trials. In addition to the

cost and potential public embarrassment that accompanies a trial,

the fairness of the second trial may be compromised; having had a

dress rehearsal, the government may adjust its case to impress the

jury more favorably or to anticipate the defense. Arizona v.

Washington, 434 U.S. 497, 503-04 (1978); United States v. Julien,

318 F.3d 316, 318 (1st Cir. 2003).

Because of these concerns, courts have construed the

Double Jeopardy Clause2 to bar retrial of a defendant after a

mistrial ordered over the defendant's objection unless the mistrial

was occasioned by manifest necessity. United States v. Perez, 22

U.S. (9 Wheat.) 579, 580 (1824); Keene, 287 F.3d at 234. It is the

government's burden to show the existence of manifest necessity —

2
The Clause ensures that no person shall "be subject for the
same offense to be twice put in jeopardy of life or limb." U.S.
Const. amend. V.

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and that burden is a heavy one. Washington, 434 U.S. at 505. In

this context, a hung jury is the paradigmatic example of manifest

necessity. Julien, 318 F.3d at 319; Keene, 287 F.3d at 233.

We review the district court's determination of manifest

necessity for abuse of discretion. Washington, 434 U.S. at 514;

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

this area of the law, however, we apply the abuse of discretion

standard with added bite. Toribio-Lugo, ___ F.3d at ___ [slip op.

at 7]; Keene, 287 F.3d at 233. Within the abuse of discretion

rubric, questions of law engender plenary review while findings of

fact are reviewed for clear error. Toribio-Lugo, ___ F.3d at ___

[slip op. at 7]. An error of law, of course, is tantamount to an

abuse of discretion. Id.

In reviewing a district court's decision to declare a

mistrial, we often have found it helpful to consider three factors:

(1) whether the district court consulted with counsel; (2) whether

the court considered alternatives to a mistrial; and (3) whether

the court adequately reflected on the circumstances before making

a decision. See, e.g., Simonetti, 998 F.2d at 41. We caution,

however, that these factors serve only as a starting point. Each

case is sui generis and must be assessed on its idiosyncratic

facts. Keene, 287 F.3d at 234.

The lower court's conduct in this case comported fully

with the Simonetti factors. At every turn, the judge consulted

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with the attorneys and solicited their recommendations on how to

proceed. She explored other options and declared a mistrial only

after concluding that those options were inutile. Finally, the

judge's decision, made over the course of two days, was

thoughtfully undertaken. In this situation, we will reverse only

if the district court applied an incorrect legal principle or made

a meaningful error in judgment.

The appellants suggest that three such bevues were

committed. First, they posit that the district court erred in

finding the jury deadlocked when, in actuality, the jury merely had

failed to deliberate. Second, they argue that there was no

manifest necessity to declare a mistrial because a lesser option

had not been exhausted, that is, the court could have dismissed

Juror No. 1 and permitted the deliberations to continue. See Fed.

R. Crim. P. 23(b)(3) (allowing the trial judge in a criminal case

to excuse a deliberating juror for good cause and permit a jury of

eleven to return a verdict). Last, the appellants assert that even

if aborting the trial was unavoidable, reprosecution should be

foreclosed because the government's misconduct led to that result.

We start with a procedural point. The prophylaxis of the

Double Jeopardy Clause constitutes a series of personal defenses

that may be waived or foreclosed by a defendant's voluntary

choices. Toribio-Lugo, ___ F.3d at ___ [slip op. at 11]. Thus, a

defendant who requests a mistrial ordinarily is deemed to have

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waived any subsequent claim of double jeopardy. See, e.g., United

States v. Dinitz, 424 U.S. 600, 607 (1976); United States v.

DiPietro, 936 F.2d 6, 9 (1st Cir. 1991). Consent to a mistrial has

much the same effect. "[W]here the defendant sits silently by and

does not object to the declaration of a mistrial even though he has

a fair opportunity to do so," a court may presume his consent.

Toribio-Lugo, ___ F.3d at ___ [slip op. at 11] (citing DiPietro,

936 F.2d at 9-11). In that event, any double jeopardy objection is

by the boards.

In this instance, the appellants did not properly raise

an objection to the declaration of a mistrial on either of the

first two grounds that they urge here. The district court engaged

in a continuous dialogue with counsel as the jury deliberations

sputtered and stalled. Yet at no point before the court finally

declared a mistrial and discharged the panel did the appellants

register any objection either to a supposed lack of deliberation or

to the court's unwillingness to jettison Juror No. 1.

These omissions are especially telling because the

district court announced its intentions well in advance and, on the

penultimate day of trial, defense counsel argued against the very

propositions that they now seek to advance. Each time that the

prosecutor asked the district court to inquire further into whether

Juror No. 1 actually was engaging in deliberations, defense counsel

objected. Similarly, defense counsel steadfastly resisted the

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prosecutor's efforts to remove Juror No. 1 from the panel.

Finally, defense counsel at one point implored the district court

to declare a mistrial because the jury was deadlocked. It would be

Kafkaesque — and wrong — for us to allow parties freely to advocate

on appeal positions diametrically opposite to the positions taken

by those parties in the trial court.

To be sure, the appellants did state at two other points

that they objected to the declaration of a mistrial. But the

context of those objections and the course of the proceedings over

the previous two days adequately evince that the objections were

based strictly and solely on the appellants' allegations of

prosecutorial misconduct. There was nothing in the attorneys'

comments that so much as hinted that they thought the jury was not

hung or that they objected to the declaration of a mistrial because

of the absence of a true deadlock. To cinch matters, counsels'

statements on the day previous to the day of the mistrial gave

every indication that they believed aborting the trial on that

ground was the proper course. Accordingly, the district court had

no occasion to consider the arguments that the appellants now

belatedly seek to advance on appeal.

That is a matter of great importance. To preserve his or

her double jeopardy rights, a criminal defendant must object to a

mistrial at the time the mistrial is declared. DiPietro, 936 F.2d

at 9-10. In so doing, the defendant must provide specific grounds

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for the objection. See United States v. Carrillo-Figueroa, 34 F.3d

33, 39 (1st Cir. 1994) ("Unless the basis for objection is apparent

from the context, the grounds for objection must be specific so

that the trial court may have an opportunity to address the claim

. . . ."); cf. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) ("Judges are not expected to be mindreaders. Consequently,

a litigant has an obligation to spell out its arguments squarely

and distinctly, or else forever hold its peace." (citation and

internal quotation marks omitted)). Unless the context makes the

lawyer's meaning reasonably clear, simply saying "objection" will

not do.

To sum up, because the appellants gave no indication that

they objected to a mistrial on either of the first two grounds

asserted on appeal, we hold that they have forfeited those

assignments of error. Forfeited errors are, of course, ordinarily

subject to review for plain error. United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). Here, however, we need not indulge in

the niceties of plain error review since both of the grounds

asserted are without merit and, thus, no error — plain or otherwise

— inheres.

The first forfeited argument depends on the notion that

a jury that fails to deliberate is unlike a deadlocked jury in the

sense that a failure to deliberate does not constitute manifest

necessity. We perceive no difference in this distinction.

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Regardless of whether it is deadlocked or fails to deliberate, a

jury that is unable to reach a unanimous verdict is a hung jury.

See Black's Law Dictionary 860 (7th ed. 1999) (defining "hung jury"

as "[a] jury that cannot reach a verdict by the required voting

margin").

Nor do we accept the appellants' suggestion that the

district court abused its discretion by not requiring the jury to

deliberate longer. There is no per se minimum period of

deliberation that must expire before a mistrial may be declared on

account of a hung jury. See Keene, 287 F.3d at 234. In this case,

the jury had sent three notes confirming that it was deadlocked,

and the judge had delivered a modified Allen charge. The record

shows that the jury was becoming increasingly tense as the

deliberations wore on. Under these circumstances, we cannot say

that the district court acted unreasonably in pulling the plug.

This brings us to the second forfeited argument. In a

nutshell, the appellants claim that the district court could have

averted a mistrial altogether by dismissing Juror No. 1 and then

proceeding with the eleven remaining jurors. Fed. R. Crim. P.

23(b)(3). This claim is unpersuasive. While the refusal on the

part of an individual juror to engage in deliberations may in some

circumstances constitute good cause for removing that juror, see,

e.g., United States v. Baker, 262 F.3d 124, 132 (2d Cir. 2001), the

court considered this argument at the government's behest and

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determined that Juror No. 1 was not disqualified from service.

Where, as here, the district court fully considers, but reasonably

rejects, lesser alternatives to a mistrial, we will not second-

guess its determination. See, e.g., United States v. Barbioni, 62

F.3d 5, 7 n.1 (1st Cir. 1995).

If more were needed — and we doubt that it is — we add

that whether a juror is refusing to deliberate or has simply

reached a conclusion contrary to the other jurors is a question of

exquisite delicacy. The line between the two can be vanishingly

thin. Because this determination requires close attention to the

immediate circumstances, we accord great respect to the trial

court's conclusion as to whether a juror is fulfilling his or her

duty to deliberate. United States v. Barone, 114 F.3d 1284, 1307

(1st Cir. 1997).

Here, we find ample evidence in the record to support the

district court's decision not to jettison Juror No. 1. The court

twice inquired of the juror whether he was capable of fulfilling

his duty to deliberate on the evidence; both times, he responded in

the affirmative. When specifically asked whether he based his

views about guilt or innocence on the evidence, the juror replied

that he did. And, finally, the district court's reluctance to

dismiss Juror No. 1 had a prudential dimension. By the time the

question came into full focus, it was apparent that Juror No. 1 was

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the lone holdout for acquittal.3 In the absence of unambiguous

evidence that a juror is attempting to thwart the deliberative

process, we believe the wisest course when a juror's views are

known is to proceed cautiously. See United States v. Brown, 823

F.2d 591, 597 (D.C. Cir. 1987) (holding that a court may not

dismiss a juror "when the record evidence discloses a possibility

that the juror believes that the government has failed to present

sufficient evidence to support a conviction").

In a related vein, the appellants would have us hold that

the district court failed to conduct an adequate inquiry into Juror

No. 1's actions. That argument is hopeless. As we have said, "in

light of the infinite variety of situations in which juror

misconduct might be discerned and the need to protect jurors and

the jury process from undue imposition, the trial judge is vested

with the discretion to fashion an appropriate and responsible

procedure to determine whether misconduct actually occurred and

whether it was prejudicial." United States v. Ortiz-Arrigoitia,

996 F.2d 436, 443 (1st Cir. 1993). That observation is especially

pertinent here because the district court knew that Juror No. 1 was

the lone holdout for acquittal. See United States v. Thomas, 116

F.3d 606, 620 (2d Cir. 1997) ("Were a district judge permitted to

3
We cannot pass over the fact that the appellants' argument in
effect asks us to hold that the district court erred by not
dismissing the lone holdout for acquittal. This proves once again
that "irony is no stranger to the law." Amanullah v. Nelson, 811
F.2d 1, 18 (1st Cir. 1987).

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conduct intrusive inquiries into — and make extensive findings of

fact concerning — the reasoning behind a juror's view of the case,

. . . this would not only seriously breach the principle of the

secrecy of jury deliberations, but it would invite trial judges to

second-guess and influence the work of the jury."). The district

court acted well within its discretion in declining to probe

further into Juror No. 1's views.

That disposes of the appellants' first two arguments, but

leaves open the last: their contention that the mistrial was

provoked by the prosecutor's misconduct. That contention lacks

force.

It is settled law that the Double Jeopardy Clause

provides a defendant with a shield against prosecutorial

maneuvering designed to provoke a mistrial. Oregon v. Kennedy, 456

U.S. 667, 674 (1982); Dinitz, 424 U.S. at 611. Consequently, if

the prosecutor purposefully instigated a mistrial or if he

committed misconduct designed to bring one about, the Double

Jeopardy Clause may be invoked as a bar to further prosecution

notwithstanding the defendants' consent (or failure to object) to

the mistrial. See Creighton v. Hall, 310 F.3d 221, 227 (1st Cir.

2002).

The appellants contend that the AUSA ran a criminal

background check on Juror No. 1; that this improper action caused

the juror to dig in his heels and obviated any hope of breaking the

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jury deadlock; and that, therefore, the government must bear

responsibility for the ensuing mistrial. This contention is

meritless: prosecutorial error or even prosecutorial harassment

that results in a mistrial will not unlatch the double jeopardy bar

in the absence of the intent to cause a mistrial. Id.

In this case, it is transparently clear that the AUSA had

no such intention. Throughout the colloquy between the district

court and counsel, the AUSA consistently opposed declaring a

mistrial. Instead, he repeatedly urged the court either to inquire

further regarding Juror No. 1's participation in the deliberations

or to give the jury more time to dissolve the impasse. Only when

the trial judge made it plain that she was determined to declare a

mistrial did the prosecutor inform the judge of the criminal record

check. Far from attempting to provoke a mistrial, it is readily

evident that the prosecutor labored to salvage the proceeding by

presenting possible grounds for the disqualification of Juror No.

1.

The appellants suggest that the AUSA's actions ought to

preclude retrial because the investigation of Juror No. 1 violated

Massachusetts Disciplinary Rule 7-109(E).4 Appellant's Br. at 28.

This suggestion is quadruply flawed.

4
The Massachusetts Rules of Professional Conduct are made
applicable to attorneys practicing in the United States District
Court for the District of Massachusetts by Local Rule 83.6(4)(B).

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 First, Massachusetts Disciplinary Rule 7-109(E), which

formerly prohibited a lawyer from undertaking "a vexatious or

harassing investigation of . . . a juror," was superseded over five

years before the conduct at issue here. The current Massachusetts

Rules of Professional Conduct contain no comparable provision.

Second, we see no impropriety in the AUSA's actions. Third, even

if the AUSA had violated an ethical rule, such an infraction, in

and of itself, would not necessarily demonstrate an intent to

provoke a mistrial. Fourth, the record, fairly viewed, eliminates

the possibility of any causal link between the background check and

the mistrial.

We briefly explain this last point. The obtaining of the

background check could not have harassed the juror because the

check was invisible. Until the AUSA presented his findings to the

district court, no one — including the juror — knew that the check

had been performed. Moreover, the AUSA never confronted the juror

with the results of the background check; instead, he presented the

information to the court for the entirely proper purpose of

determining Juror No. 1's eligibility to serve. Even this measured

step was not taken until it became pellucid that, unless Juror No.

1 was disqualified, the district court would declare a mistrial.

Under the circumstances, the AUSA's conduct could not have had a

causative effect on the occurrence of the mistrial.

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III. CONCLUSION

We need go no further. Because the district court did

not abuse its discretion in finding manifest necessity to declare

a mistrial and because the government did not engage in any

mistrial-provoking misconduct, principles of double jeopardy do not

bar the government from retrying the appellants.

Affirmed.

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