United States v. Charlton

United States Court of Appeals
For the First Circuit
__________________

No. 06-2256

UNITED STATES OF AMERICA,

Appellee,

v.

TREVOR CHARLTON,

Defendant, Appellant.

__________________

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

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

__________________

Before

Lipez and Newman*, Circuit Judges,
and Selya, Senior Circuit Judge.

__________________

Judith H. Mizner for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

August 10, 2007

*
Of the Federal Circuit, sitting by designation.
 NEWMAN, Circuit Judge. Mr. Trevor Charlton was indicted on

the single count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1):

(g) It shall be unlawful for any person-
(1) who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year
. . . to possess in or affecting commerce, any firearm or
ammunition . . . .

Trial was held, and the district court declared a mistrial after

ruling that the jury was hopelessly deadlocked; the court scheduled

a retrial. United States v. Charlton, No. 1:04-cr-10306-PBS (D.

Mass. June 12, 2006). Mr. Charlton moved to dismiss the indictment

on the ground of violation of the double jeopardy clause of the

Fifth Amendment.1 The district court denied the motion, and this

appeal followed. See Abney v. United States, 431 U.S. 651, 662

(1977) (denial of a motion to dismiss on double jeopardy grounds is

a final decision within the meaning of 28 U.S.C. § 1291); United

States v. Keene, 287 F.3d 229, 232 (1st Cir. 2002) (the defendant

may take an immediate appeal from an interlocutory order in a

criminal case when he presents a colorable claim that further

proceedings will constitute double jeopardy, such as when the

defendant claims that the district court should not have declared

the jury hopelessly deadlocked).

1
U.S. Const. amend. V ("[N]or shall any person be subject
for the same offense to be twice put in jeopardy of life or limb,
. . .")

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 On review of the proceedings, we affirm the district court's

rulings.

BACKGROUND

The events leading to Mr. Charlton's arrest are generally

undisputed, and their substance is not at issue on this appeal. In

brief, on the evening of July 25, 2004 the police in Brockton,

Massachusetts were investigating an incident and were given a

description of the persons involved, including a man who had taken

a taxi to 37 Ellsworth Street. At Ellsworth Street the police

found five men including Mr. Charlton. A white shirt was on a

cement pillar near where Mr. Charlton was standing, and wrapped in

the shirt was a loaded firearm. Mr. Charlton told the police that

earlier that evening he had stabbed a man who had assaulted him,

and that he was concerned about possible "problems."

The sole count of the indictment, and the only question of the

trial, was whether Mr. Charlton was in "possession" of the firearm

in terms of 18 U.S.C. § 922(g)(1). The proceedings commenced on

Monday, March 13, 2006, the trial consumed about seven hours, and

the case was submitted to the jury during the morning of Thursday,

March 16. At about noon on Thursday the jury requested the police

report of Mr. Charlton's statement; the report had been the subject

of testimony but had not been introduced in evidence. The jury was

told that it could not be provided. The jury continued its

deliberations all day on Thursday.

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 The next morning, Friday, March 17, the jurors submitted three

questions: (1) whether they could have a written copy of the jury

instructions; (2) whether they could have a dictionary; and (3)

whether it is illegal for a person convicted of a crime punishable

by more than one year in prison to possess a firearm. The judge

consulted with counsel, and then told the jury (1) that a

transcript of the jury instructions would be prepared and provided,

and meanwhile the jury should continue to deliberate; (2) that a

dictionary would not be provided; and (3) that the answer to the

third question is "yes" provided that the government proves the

elements of the crime beyond a reasonable doubt. At mid-morning

the jury submitted another question concerning a government

exhibit, and the judge responded that the court could not comment

on the evidence. At 11:10 a.m. on Friday the jurors reported that

they "have reached an impasse."

The district court proposed giving the jury a charge pursuant

to Allen v. United States, 164 U.S. 492, 501 (1896). Mr.

Charlton's counsel asked that the Allen charge not be given, and

that the jury simply be instructed to continue to deliberate. The

district court followed the procedure requested by Charlton's

counsel.

At 4:39 p.m. on Friday the jury again stated that it

"remain[ed] deadlocked on the same issue." The jury had

deliberated for a total of thirteen hours. Government counsel

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again asked that the Allen charge be given, and defense counsel

again opposed it, arguing that it was too late in the day on a

Friday. The district court decided to proceed with the Allen

charge, and read to the jury the Modified Allen Charge of the First

Circuit Pattern Jury Instructions2, as follows:

I am going to instruct you to go back and resume
your deliberations. I will explain why and give you
further instructions. In trials, absolute certainty can
neither be expected or attained.

You should consider that you are selected in the
same manner and from the same source as any future jury
would be selected. There is no reason to suppose that
this case would ever be submitted to twelve men and women
more intelligent, more impartial, or more competent to
decide it than you, or that more or clearer evidence
would be produced in the future. Thus, it is your duty
to decide the case if you can conscientiously do so
without violence to your individual judgment.

The verdict which a juror agrees must of course be
his or her verdict, the result of his or her own
convictions, and not a mere acquiescence in the
conclusions of his or her fellow jurors. Yet, in order
to bring twelve minds to a unanimous result, you must
examine the question submitted to you with an open mind
and with proper regard for and deference to the opinion
of the other jurors.

In conferring together, you ought to pay proper
respect to each other's opinions, and you ought to listen
with a mind open to being convinced by each other's
arguments. Thus, where there is disagreement, jurors
favoring acquittal should consider whether a doubt in
their own mind is a reasonable one when it makes no
impression upon the minds of the other equally honest and
intelligent jurors, who have heard the same evidence with

2
These Instructions are advisory rather than mandatory, and
have not been officially adopted by the court. See United States
v. Gomez, 255 F.3d 31, 39 n.7 (1st Cir. 2001).

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 the same degree of attention and with the same desire to
arrive at the truth under the sanction of the same oath.

On the other hand, jurors favoring conviction ought
seriously to ask themselves whether they should not
distrust the weight or sufficiency of evidence which
fails to dispel reasonable doubt in the minds of the
other jurors. Not only should jurors in the minority
reexamine their position, but jurors in the majority
should do so also, to see whether they have given careful
consideration and sufficient weight to the evidence that
has favorably impressed the people in disagreement with
them.

Burden of proof is a legal tool for helping you to
decide. The law imposes upon the prosecution a high
burden of proof. The prosecution has the burden to
establish with respect to each count each essential
element of the offense and to establish that essential
element beyond a reasonable doubt. And if with respect
to any element of any count you are left in reasonable
doubt, the defendant is entitled to the benefit of such
doubt and must be acquitted.

It is your duty to decide the case if you can
conscientiously do so without violence to your individual
judgment.

The court also told the jury:

I want you to go back and talk seriously about whether or
not you can come back Monday with a fresh mind after a
long weekend and try to resume deliberations based on
this charge.

The jury told the court that it would continue deliberations on

Monday.

On Monday morning the jury sent the court two questions at

about 10:00 a.m.: (1) whether the jury could consider the

defendant's presumed ignorance of the law under which he was being

prosecuted, and (2) whether "knowing" could be separated from

"possession." After consultation with counsel, the court answered

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both questions in the negative. At 11:32 a.m. the jurors sent a

note stating that they are "deadlocked and cannot reach a unanimous

verdict."

The government asked the court to declare a mistrial,

observing that the jury had declared itself deadlocked three times;

defense counsel asked that the jury be told to continue

deliberating until the end of the day on Monday. The district

court declared a mistrial over defense counsel's objections, and

polled the jurors to confirm the deadlock. Mr. Charlton's motion

to dismiss the indictment was denied by the court in a written

opinion explaining the court's conclusion that the jury was

hopelessly deadlocked.

DISCUSSION

Mr. Charlton points out that "[t]he right not to be put twice

to the bar is of a very high order," United States v. Hotz, 620

F.2d 5, 6 (1st Cir. 1980), and argues that the district court

abused its discretion by declaring a mistrial when "manifest

necessity" had not been shown. He points out that the jury

continued to ask questions and review the evidence after the first

two declarations of deadlock, and argues that in view of Charlton's

objection the jury should have been permitted and required to

continue to deliberate at least until the end of the day on Monday.

He states that this "premature" declaration of a mistrial shows

that the district court failed to explore adequately and exhaust

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the alternatives to mistrial, and that the double jeopardy clause

bars retrial when a mistrial was improperly declared.

Mr. Charlton stresses his right to have his guilt or innocence

decided by the jury at a single trial; he stresses the right not to

be subjected to continued trials after a jury has failed to

convict. In Arizona v. Washington, 434 U.S. 497, 503 (1978), the

Court emphasized the defendant's constitutional right to have his

trial completed by the same trier of fact in the same proceeding,

while also recognizing that a deadlocked jury can lead to retrial.

This court has explained that the Constitution "restrains the

government from using its power and resources to subject a

defendant to serial prosecutions, thus prolonging his ordeal and

unfairly enhancing the prospect of his ultimate conviction."

United States v. Toribio-Lugo, 376 F.3d 33, 38 (1st Cir. 2004)

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

The protection against multiple trials is not, however,

absolute. It has long been recognized that a deadlocked jury does

not raise a double jeopardy bar. In United States v. Perez, 22

U.S. (9 Wheat.) 579 (1824), Justice Story observed that the

manifest necessity flowing from a jury's inability to agree on a

verdict permitted the trial judge to retry the defendant,

explaining that "the ends of public justice would otherwise be

defeated." Id. at 580. See also Richardson v. United States, 468

U.S. 317, 324 (the retrial of a case, after declaration of a

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mistrial based on a "hung jury," does not generally present a

double jeopardy issue); Arizona v. Washington, 434 U.S. 497, 509

(1978) ("[T]he trial judge may discharge a genuinely deadlocked

jury and require the defendant to submit to a second trial.");

United States v. Barboni, 62 F.3d 5, 7 (1st Cir. 1995) ("It is well

settled that an appeal from a denial of a motion to dismiss

following a 'hung jury' does not normally present a valid Double

Jeopardy claim.").

Although the district court has discretion in deciding whether

to declare a mistrial, this discretion is constrained by the

constitutional safeguards, such that its exercise "entails

heightened rigor and is reviewed accordingly." Keene, 287 F.3d at

233; see United States v. Ramirez, 884 F.2d 1524, 1529 (1st Cir.

1989) (requiring a "high degree" of necessity to be present before

concluding that a mistrial is appropriate). As the Court stated in

Perez, 22 U.S. at 580, the power to declare a mistrial "ought to be

used with the greatest caution, under urgent circumstances, and for

very plain and obvious cause." On appeal, the exercise of

discretion is reviewed to ascertain whether the declaration of

deadlock and ensuing mistrial met the criteria of "manifest

necessity," United States v. Jorn, 400 U.S. 470, 485 (1971)

(plurality op.), with recognition of the deference owed to

discretionary rulings of the trial judge who was present throughout

the proceedings that led to the deadlock.

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 This court explained in United States v. Brown, 426 F.3d 32,

36 (1st Cir. 2005), that the declaration of a mistrial is case-

specific and cannot be reduced to a "mechanical checklist."

However, several interrelated factors form the foundation of the

appellate inquiry, including: "(i) whether alternatives to a

mistrial were explored and exhausted; (ii) whether counsel had an

opportunity to be heard; and (iii) whether the judge's decision was

made after sufficient reflection." Toribio-Lugo, 376 F.3d at 39.

These factors "serve only as a starting point. Each case is sui

generis and must be assessed on its idiosyncratic facts." United

States v. McIntosh, 380 F.3d 548, 554 (1st Cir. 2004).

As to the first of these factors, Mr. Charlton argues that the

judge should have asked the jury to deliberate for the entire day

on Monday. He points to the several attempts by the jury to obtain

information, and suggests that there are complexities of fact and

credibility that distinguish this case from others in which a

mistrial was sustained. He argues that the judge erroneously

considered the case to be "a simple one," and that the judge did

not give the jury enough time to deliberate. He argues that based

on the questions asked by the jurors, they were close to a verdict

had the judge been more patient.

The prosecution bears the burden of justifying the declaration

of a mistrial. Keene, 287 F.3d at 234. The government stresses

that the judge urged the jury several times to attempt to reach a

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verdict, and did not declare a mistrial until the jury had

announced itself deadlocked for the third time. The government

points out that the jury had deliberated for more than twice the

time it took to conduct the trial itself, and that the sole issue

was whether Mr. Charlton knowingly "possessed" the firearm. The

government states that the nature and timing of the questions asked

by the jury suggest that the jury had been in deadlock for a

significant period, and that it was apparent that change was

extremely unlikely. We conclude that the judge adequately

considered the alternative of requiring that deliberations

continue, and that the conclusion that the deadlock was hopeless

and that further deliberations would be fruitless was a "scrupulous

exercise of juridical discretion." United States v. Simonetti, 998

F.2d 39, 41 (1st Cir. 1993).

As to the second factor, it is undisputed that the judge

provided defense counsel with the opportunity to be heard, and

accepted counsel's objection to giving an Allen charge when the

jury declared itself deadlocked after the Thursday deliberations.

When the jury again declared itself deadlocked after the Friday

deliberations, the judge decided to give the Allen charge, and the

jury stated that it would continue deliberating the following

Monday. Mr. Charlton argues that the giving of the Allen charge at

the end of the day on a Friday was prejudicial.

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 The district court in its opinion recognized the "inherently

coercive nature of the Allen charge," and remarked that the jury's

decision to return on Monday for further deliberations "blunts any

possible prejudice." Slip op. at 10, 11. Courts have recognized

the possibility of pressing a jury into compromise. See United

States v. Julien, 318 F.3d 316, 320 (1st Cir. 2003) ("A jury forced

to continue to deliberate after it reported deadlock would

compromise too easily, simply to be able to go home."); Barboni, 62

F.3d at 7 n.1 ("By disregarding the jurors on this point [deadlock]

and demanding further deliberation, the court might have risked

pressuring the jurors into abandoning good faith opinions merely

for the sake of reaching unanimity."). We discern no prejudice to

Mr. Charlton; indeed, it is more likely that the Allen exhortation

encouraged the jury to continue its deliberations to the following

Monday.

As to the third factor, there is no support for Mr. Charlton's

charge that the district court declared the mistrial precipitously

or without sufficient reflection. In McIntosh, 380 F.3d at 555,

this court sustained the district court's exercise of discretion in

not requiring the jury to continue to deliberate after the jurors

had sent three notes reporting that they were deadlocked and the

judge had delivered a modified Allen charge. Mr. Charlton's

situation is also analogous to that in Barboni, 62 F.3d at 7, where

the jury deliberated for almost ten hours after a four-day trial,

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sent two notes declaring deadlock, and the district court concluded

that further deliberations would be futile. We discern no abuse of

the rigorous discretionary standard by not requiring the Charlton

jury to deliberate until the end of the day on Monday, in the

circumstances of this jury's continuing deadlock. "A hung jury is

the paradigmatic example of manifest necessity." McIntosh, 380

F.3d at 553; see also Julien, 318 F.3d at 319 ("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."). The

district court's declaration of a mistrial is sustained.

In Richardson, 468 U.S. at 324-26, the Court drew a

distinction between circumstances in which the jury's failure to

convict, for example for insufficiency of evidence, warrants

release of the defendant, and the circumstances in which a trial

that does not result in a verdict does not end the original

jeopardy. Based on this ground of declaration of a mistrial, the

decision to order a new trial does not constitute double jeopardy.

No circumstance has been cited as would support departure from this

well-established sequel to a hung jury. The district court's order

of a new trial is affirmed.

Affirmed.

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