United States Court of Appeals
For the First Circuit
No. 06-2108
UNITED STATES OF AMERICA,
Appellee,
v.
PAULINO LARA-RAMIREZ,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Smith,* District Judge.
Jacabed Rodriguez-Coss, with whom Rosa Emilia Rodriguez-Velez,
United States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, were on brief, for appellee.
Juan J. Hernández López de Victoria for appellant.
March 11, 2008
*
Of the District of Rhode Island, sitting by designation.
LIPEZ, Circuit Judge. Defendant Paulino Lara-Ramirez
("Lara") appeals the denial of a motion to dismiss the charges
against him on double jeopardy grounds after his first trial
resulted in a mistrial. He argues that the district court's
mistrial declaration, following discovery of a Bible in the jury
room during deliberations, was made without his consent and without
the required showing of manifest necessity. After careful review,
we agree and conclude that the district court erred in refusing to
dismiss the indictment.
I.
Lara was indicted for importing and distributing more
than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a) and
952(a). On the third day of his trial, the jury was instructed and
retired to deliberate. Shortly thereafter, the court received a
note from the jury requesting, inter alia, a transcript of Lara's
testimony. In response, the court sent the court reporter into the
jury room to read the testimony aloud. Later that day, the court
received a second note1 from the jury that read:
Your Honor,
We need to inform you that we can't
reach a unanimously veredict. We can't get an
agreement. We had performed several rounds of
votings.
The jury had revised all evidence but
is still divided in the decision of guilty or
not guilty. Is divided evenly.
1
The jury note and all quotes from the trial transcript are
reproduced herein verbatim with typographical errors retained.
-2-
At that point, the court convened a conference with
counsel. It read the note to the attorneys and also informed them
that the court reporter had reported seeing a Bible in the jury
room while she was reading the transcript.2 The court stated:
It seems to me that I just read a case, I'm
not certain where I read it, it was ordered a
new trial when the jurors had a Bible in the
jury room, because then they're violating the
instructions of the Court that they should not
consider anything but the evidence.
Then the court reporter stated for the record that she "saw a huge
Bible, not the kind you carry in your pocket like a daily
inspiration." Engaging counsel in a discussion of what should be
done, the court initially proposed that it could "give them an
Allen charge, and also tell them that they're not supposed to have
a Bible in the jury room."3 The prosecutor agreed that an Allen
charge should be given. However, the court retreated from its
initial proposal, stating that "[i]f they have that Bible . . .
that would contaminate the whole thing."
The prosecutor tried to alleviate the court's concern,
suggesting that "if a juror simply has the habit of carrying a
2
The record does not disclose when the court reporter told the
judge that she had seen a Bible in the jury room. In any event,
the parties do not complain about any delay between the court
reporter's observation and the judge's convening of a conference
with counsel to relay that information and formulate a response.
3
See Allen v. United States, 164 U.S. 492, 501-02 (1896)
(upholding the practice of using a supplemental jury instruction to
help a deadlocked jury reach unanimity).
-3-
Bible around with him or her . . . . In that case, it would not be
considered a contamination." The court resisted, however,
responding: "It's in the jury room." The prosecutor urged the
court not to assume that the Bible's presence was a problem without
evidence that it had been used in the jury's deliberations. The
court then suggested a voir dire of the jury foreperson to "ask
whether the Bible has been used in their deliberations[.]" The
prosecutor and defense counsel both agreed to that course of
action.
In the presence of counsel, the court called the jury
foreperson into the conference room and asked her about the Bible.
The brief questioning established that a juror had brought a Bible
into the jury room and that the same juror had "used the Bible in
deliberations." The court then asked the foreperson, "Would you
say that [the juror's] position, whatever it is – don't tell me
whether she's for or against – is based on the Bible, if you know?"
The foreperson replied, "Well, his evidence are based, based – he
wants the rest of us to – yes, we hear the facts, but also consider
what God says in the Bible, something like that." The government
requested the juror number for the juror who had brought the Bible.
The court refused this request, stating, "No. I don't want to know
who it is." The court then asked counsel whether they wanted him
to ask any other questions of the foreperson. Both replied in the
negative and the foreperson left the room.
-4-
The court asked to hear from counsel. Both the
prosecutor and defense counsel began by stating that they were not
familiar with case law regarding the presence of a Bible in the
jury room. The prosecutor requested a mistrial, characterizing the
foreperson's testimony as "essentially stat[ing] that [the juror
who brought the Bible] has referred to specific portions of the
Bible and has urged the remaining members of that jury to consider
those portions of the Bible in their deliberations." This
characterization greatly overstated the foreperson's account of the
juror's Bible reference. The jury foreperson did not state that
the juror had referred to specific portions of the Bible. Nor did
the jury foreperson describe this juror as urging the other members
of the jury to consider any specific portions of the Bible in their
deliberations. Nonetheless, the court agreed with the prosecutor's
characterization of the foreperson's testimony4 and asked defense
counsel for suggestions about how to proceed. Defense counsel
offered two options – individual interviews with each of the jurors
and a curative instruction – each of which was quickly rejected by
the court in the following exchange:
DEFENSE COUNSEL: You can instruct them that
they should disregard any elements --
4
Immediately following the prosecutor's characterization of
the foreperson's testimony, the court stated: "And that violates
the court's instruction, and it seems to inject a matter that is
irrelevant, although holy, but irrelevant to the issue."
-5-
COURT: That's already done. The cat is out
of the bag. We can't now say to this juror,
don't use any Biblical arguments.
DEFENSE COUNSEL: Maybe we can interview them
one by one and say --
COURT: No, no.
DEFENSE COUNSEL: Maybe they'll be able to do
it, to disregard --
COURT: I'm inclined to go along with the
Government, to declare a mistrial, because I
don't think that this is going to get any
better, and to me, it's useless to give an
Allen charge.
DEFENSE COUNSEL: Maybe interview them one by
one.
COURT: No, counsel. That will be interjecting
the Court into the deliberation process of the
jurors.
. . .
COURT: Counsel, give me any other suggestion
other than asking jurors one by one why I
shouldn't declare a mistrial.
DEFENSE COUNSEL: My only suggestion, Your
Honor, would be either instructing them that
they should disregard anything that has been
discussed or commented as to the Bible, and
ask them whether they would be able to do so,
as opposed to – that you are supposed to
follow the law.
The court once again rejected this course of action, noting that
the jurors were not yet aware that the court knew about the Bible
in the jury room. Defense counsel suggested that they could be
made aware and that a curative instruction could be given. The
court replied that curative instructions could not be used after
the jury had begun to deliberate:
COURT: This is not an issue where you can
give a curative instruction at trial where
something is said, something out of bounds,
and the jury has not been deliberating and you
tell the jury, don't do this, don't do that.
Of course, they wouldn't do it. But now it's
-6-
done. There's nothing that I can do to cure
that, because the purpose of a curative
instruction is given to the jury before they
go to deliberate so that they can disregard
that offhand remark that the Court has told
them not to consider. But here, they did
already discuss the Bible, and injected the
Bible into the deliberations. They have a
Bible there. Next time, I'll make sure that
there's no Bible, nor any other book that –
this thing is really serious, because you are
injecting religion, we're injecting religion.
It's not, well, they're reading the papers,
the World Series, they're reading about what
happened in Iraq. That can be cured by
saying, give me back the paper. But here, I
can't take back what has already been done.
Like in Macbeth, what is done cannot be
undone. Shakespeare. Unless you come up with
any better solution, I don't see any.
DEFENSE COUNSEL: The only one is the one I
have stated, Your Honor, to ask them one by
one whether they can still not consider any
argument without giving consideration to the
Bible.
COURT: That will be worse. The remedy would
be worse than the cure.
The court then concluded that it had "no choice" but to declare a
mistrial. The court recalled the jury into the courtroom and
dismissed them. A new trial date was set for January 18, 2006.5
On January 12, 2006, Lara moved to dismiss the indictment
on the basis of double jeopardy, arguing that the court had not
adequately considered alternatives to a mistrial during his first
trial. The court denied the motion in a written opinion on
February 24, 2006, explaining: "In the instant case, the
declaration of a mistrial was a manifest necessity: first, the jury
5
The second trial actually commenced on February 27, 2006.
-7-
had informed that it was deadlocked; second, the jury foreperson
indicated that the jury had been using the Bible during
deliberations." Noting the discretion afforded trial judges in
responding to unexpected events at trial, the court recounted that
it had "maintained open communication with both counsel, requested
their suggestions to avoid a mistrial, investigated the situation
as to the presence of a Bible in the jury room with the presence of
counsel, and heard and carefully considered counsel's arguments."
The court rejected the claim of the defendant that it had made a
"precipitate decision, reflected by a rapid sequence of events
culminating in a declaration of mistrial." Instead, the court
stated that its decision to declare a mistrial was "a pondered
assessment of many factors, careful not to intrude upon the
sanctity of the jury's deliberation or to place upon the jury even
the subtlest of pressures." The court then repeated its "manifest
necessity" evaluation:
Where, as here, the jury's initiative to
communicate to the judge that it is deadlocked
is coupled with the presence and use of a
Bible in the jury room and during
deliberations, having heard counsel and
carefully considered and reflected upon the
alternatives, it stands to reason that the
Court's "declaration of a mistrial was
reasonably necessary under all the
circumstances." [United States v.] Brown,
[426 F.3d 32, 37 (1st Cir. 2005) (quoting
United States v. Keene, 287 F.3d 229, 234 (1st
Cir. 2002)].
-8-
The court then concluded: "In view of all the circumstances,
cautioning the jurors as to their ability to render a verdict
discarding any reference to the Bible would have been self-
defeating and an ensuing Allen charge would have been rendered
unsuccessful."
Following a second jury trial, Lara was convicted and
sentenced to 60 months in prison.6 He then filed this timely
appeal, arguing that the second trial violated his constitutional
right to avoid double jeopardy.
II.
The Double Jeopardy Clause of the Fifth Amendment
protects a criminal defendant from being "twice put in jeopardy"
for the same offense. U.S. Const. amend. V. A defendant's "valued
right to have his trial completed by a particular tribunal," United
States v. Jorn, 400 U.S. 470, 484-85 (1971) (plurality opinion)
(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)), is a
constitutional protection "entitled to the deepest respect."
United States v. Pierce, 593 F.2d 415, 419 (1st Cir. 1979). As a
result, the declaration of a mistrial must be a last resort,
implemented only if the jury's ability to reach a just verdict has
been incurably compromised. United States v. Diaz, 494 F.3d 221,
227 (1st Cir. 2007) ("'Declaring a mistrial is a last resort, only
6
The jury in Lara's second trial also sent the court a note
indicating that it was deadlocked. The court responded by giving
an Allen charge, and the jury returned a verdict a few hours later.
-9-
to be implemented if the taint is ineradicable, that is, only if
the trial judge believes that the jury's exposure to the evidence
is likely to prove beyond realistic hope of repair.'" (quoting
United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993))).
A defendant may waive his right to avoid double jeopardy by
consenting to a mistrial; ordinarily, the prosecution may then
proceed with a new trial. United States v. Toribio-Lugo, 376 F.3d
33, 38 (1st Cir. 2004). However, when a mistrial is declared
without the defendant's consent, the permissibility of a new trial
depends upon the "manifest necessity" for the mistrial declaration.
United States v. DiPietro, 936 F.2d 6, 9 (1st Cir. 1991).
We review the denial of a motion to dismiss on double
jeopardy grounds following the declaration of a mistrial for abuse
of discretion. Toribio-Lugo, 376 F.3d at 38. Mindful of the
important constitutional right involved, our "appellate review must
ensure that the trial court indulged in a 'scrupulous exercise of
judicial discretion'" in its decision to declare a mistrial. Id.
(quoting Jorn, 400 U.S. at 485). To that end, we accept the trial
court's factual findings unless they are clearly erroneous, but
"review the legal principles on which the court premised its
decision" de novo, United States v. Bradshaw, 281 F.3d 278, 291
(1st Cir. 2002), cognizant that a "mistake of law is, a fortiori,
an abuse of discretion," Toribio-Lugo, 376 F.3d at 38. We then
"ask whether, given the totality of the circumstances then and
-10-
there obtaining, the sum of the trial court's acts and omissions
constituted a misuse of its discretion." Bradshaw, 281 F.3d at
291.
A. Consent
The district court applied the "manifest necessity" test
in its order denying Lara's motion to dismiss, thus implicitly
concluding that Lara had not consented to the mistrial. We review
this implicit legal determination de novo. Toribio-Lugo, 376 F.3d
at 38 ("Whether the facts as found add up to consent is a legal
determination that we review de novo.").
The government argues that Lara failed to clearly object
to the granting of a mistrial, and thereby "conceded to the
declaration of the mistrial and cannot now raise a violation of his
rights under the Double Jeopardy Clause." To evaluate this claim,
we must inquire whether Lara waived his right to avoid double
jeopardy by consenting, either expressly or impliedly, to the
mistrial. Id.; DiPietro, 936 F.2d at 9; see also United States v.
Smith, 621 F.2d 350, 351-52 (9th Cir. 1980). Consent may sometimes
"be implied from a defendant's acts or failures to act, such as
where 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." Toribio-Lugo, 376 F.3d at 40. However, such an
"implication of consent is not lightly to be indulged." Id.
-11-
Here, the actions of defense counsel belied any
suggestion of consent. He repeatedly urged specific alternatives
to the mistrial, thereby giving unmistakable notice to the trial
court that he opposed a mistrial declaration. While our prior
holdings make clear that, in the usual case, counsel must formalize
his or her lack of consent with an on the record objection setting
forth reasons for the objection, it is immaterial here that defense
counsel did not say the words "I object" in the immediate aftermath
of the court's declaration of a mistrial. The record makes clear
that counsel intended and the district court understood that Lara
objected to and did not consent to the mistrial. Moreover, the
court understood the reasons for the objection. That is why the
district court never even discussed the issue of consent in its
written decision denying the motion to dismiss the indictment.
Our decision in DiPietro, cited by the government, is not
to the contrary. See 936 F.2d at 11. There we held that, although
the court had not explicitly alerted counsel that it was
considering a mistrial, defense counsel "'should have anticipated
the possibility of a mistrial and been prepared to object or
suggest more acceptable alternatives when the trial judge announced
his ruling.'" Id. (quoting Camden v. Circuit Court, 892 F.2d 610,
618 (7th Cir. 1989)) (emphasis added). In DiPietro, defense
counsel never offered any alternatives to a mistrial. Id.
Although the government's counsel and the judge remained in the
-12-
courtroom for several minutes following the mistrial declaration,
defense counsel said nothing at all about the mistrial issue. Id.
Instead, she consulted her calendar and discussed acceptable dates
for a new trial. Id. Thus, we concluded that "[g]iven no hint
that the defendant desired her fate to be entrusted to this
particular, and perhaps severely prejudiced jury, the court did not
have to consider any such undisclosed wishes." Id. Here, unlike
in DiPietro, Lara's counsel urged the court to consider
alternatives to a mistrial, provided explicit suggestions, and
never acquiesced in the court's conclusion that it had "no choice"
but to declare a mistrial. These persistent pleas to pursue a
different course of action preclude any implication of consent. To
the contrary, counsel's suggestions informed the court that Lara
desired his fate to be determined by this particular jury.
Our decision in United States v. McIntosh, 380 F.3d 548,
555 (1st Cir. 2004), also cited by the government, is similarly
distinguishable from the facts here. There we held that the
defendants had forfeited two of their three grounds for appeal by
failing to explicitly object on those grounds at the time the
mistrial was declared. Id. After a series of problems with a
particular juror, repeated reports of deadlock, and a series of
attempted remedies, defense counsel had moved for a mistrial and a
dismissal of the indictment on the ground of prosecutorial
-13-
misconduct.7 Id. at 552. However, the trial court declared a
mistrial based on a finding of intractable deadlock and then denied
the prosecutorial misconduct motion. Id. Although defense counsel
objected generally to the mistrial declaration, we explained that
"[t]here 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." Id. at 555. In fact, we noted that "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." Id. As a result of the failure to
explain the grounds for their objection, we concluded that "the
district court had no occasion to consider the arguments that the
appellants now belatedly seek to advance on appeal." Id. In
contrast, Lara's counsel explicitly disagreed with the court's
assessment of the magnitude of the taint caused by the Bible's
presence in the jury room and urged alternatives to the declaration
of a mistrial. The trial court here had every opportunity to
consider Lara's position prior to rendering its decision.
7
The Double Jeopardy Clause shields defendants against
prosecutorial maneuvering designed to provoke a mistrial. United
States v. McIntosh, 380 F.3d 548, 557 (1st Cir. 2004). As such,
the defendants in McIntosh wished to show that the mistrial had not
been rendered "manifestly necessary" by the deadlock, but rather
had been provoked by the prosecutor's misconduct. Id.
-14-
In light of all the circumstances, we find no evidence
that Lara impliedly consented to the mistrial. As a result, we
agree with the district court's conclusion that the "manifest
necessity" test applies.
B. Manifest Necessity
The inquiry into whether a mistrial was justified by
"manifest necessity" is "case-specific" and "cannot be discharged
by resort to a mechanical checklist." Brown, 426 F.3d at 36. Our
task on appeal is to determine "whether the district judge's
declaration of a mistrial was reasonably necessary under all the
circumstances." Id. at 37 (quoting Keene, 287 F.3d at 234). We
are guided in this determination by consideration of three
interrelated factors: "(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; see also
United States v. Simonetti, 998 F.2d 39, 41 (1st Cir. 1993).
1. Reported Deadlock
When the court declared a mistrial, it did not treat the
reported deadlock as an important factor in its mistrial decision.
Near the beginning of the colloquy, the court stated, "[i]f the
Bible has played nothing in the jury deliberations, we can then
move to an Allen charge." However, after questioning the jury
foreperson, the court concluded that the Bible had played a role in
-15-
deliberations and that, as a result, "it [was] useless to give an
Allen charge," which would have urged jurors to reexamine their
positions and listen to the views of their fellow jurors. In the
court's view, it was pointless to ask the jurors to reexamine their
positions when those positions had been incurably tainted by the
presence of the Bible in the jury room.
As we explain more fully below, the premise of the
court's refusal to consider an Allen charge further – the
ineradicable taint of the Bible – was seriously flawed. The court
had assumed an ineradicable taint without pursuing the
alternatives, suggested by defense counsel, that might have
disproved any such taint or suggested the appropriateness of a
curative instruction.
In its subsequent written decision denying Lara's motion
to dismiss, the court treated the deadlock issue somewhat
differently. There, the court concluded that the combination of
the reported deadlock and the Bible issues created a manifest
necessity for a mistrial.8 However, if the court was going to give
some independent weight to the jury's report of a deadlock (which
it did not do when it declared the mistrial), it had to at least
8
The jury had voluntarily divulged in its note that it was
"divided evenly." However, the voluntary disclosure of such
information by a jury does not necessitate a mistrial. United
States v. Hotz, 620 F.2d 5, 7 (1st Cir. 1980) (holding that a
mistrial declaration was not manifestly necessary where the jury
reported an 11-1 deadlock after four hours of deliberation).
-16-
explore the alternatives that might have remedied the deadlock or
determined its intractable nature. It never did that because of
its flawed premise that the Bible taint made it pointless to
address the deadlock issue. As a result, the record is
insufficient to give any weight to the jury deadlock in the
manifest necessity analysis. See United States v. Razmilovic, 507
F.3d 130, 140 (2d Cir. 2007) ("[W]here the record does not indicate
that there was a genuine deadlock, and the court has not provided
an explanation for its conclusion or pointed to factors that might
not be adequately reflected on a cold record, we are unable to
satisfy ourselves that the trial judge exercised 'sound discretion'
in declaring a mistrial.") Accordingly, the correctness of the
court's manifest necessity determination turns on the necessity of
the court's mistrial declaration as a response to the presence of
a Bible in the jury room during deliberations.
2. Bible in the Jury Room
Our task then is to determine whether the district court
adequately explored and exhausted alternatives to a mistrial on the
basis of the Bible in the jury room and whether the court declared
the mistrial after sufficient reflection.9 "[When] a colorable
claim of jury taint surfaces during jury deliberations, the trial
9
The court gave counsel an opportunity to be heard prior to
the mistrial declaration. As a result, the second prong of the
manifest necessity test, see Toribio-Lugo, 376 F.3d at 39, is not
at issue in this case.
-17-
court has a duty to investigate the allegation promptly."
Bradshaw, 281 F.3d at 289 (footnote omitted); see also United
States v. Corbin, 590 F.2d 398, 400 (1st Cir. 1979). The
investigation must "ascertain whether some taint-producing event
actually occurred," and then "assess the magnitude of the event and
the extent of any resultant prejudice." Bradshaw, 281 F.3d at 289.
Even if both a taint-producing event and a significant potential
for prejudice are found through the investigation, a mistrial is
still a remedy of last resort. See id. The court must first
consider "the extent to which prophylactic measures (such as the
discharge of particular jurors or the pronouncement of curative
instructions) will suffice to alleviate prejudice." Id. This
painstaking investigatory process protects the defendant's
constitutional right to an unbiased jury, id. at 289-90, as well
as his "'valued right to have his trial completed by a particular
tribunal,'" Jorn, 400 U.S. at 484 (plurality opinion) (quoting
Wade, 336 U.S. at 689). The investigation is also critical in
creating a sufficient record to permit meaningful appellate review
of the district court's manifest necessity determination.
Although we recognize that the presence of the Bible in
the jury room posed an unusual situation for the district court, we
must conclude that the inquiry conducted by the court was
inadequate to support a finding that a mistrial was manifestly
necessary. The court questioned only the court reporter and the
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jury foreperson. This minimal investigation produced only the
following evidence: that a Bible had been brought into the jury
room by one of the jurors, and that the same juror had stated,
during deliberations, that he wanted the other jurors to "hear the
facts, but also consider what God says in the Bible, something like
that." Immediately following the court's questioning of the jury
foreperson (after the foreperson had been excused), the prosecutor
characterized the foreperson's testimony as revealing that the
juror who brought the Bible had "referred to specific portions in
the Bible and [had] urged the remaining members of that jury to
consider those portions of the Bible in their deliberations." As
we noted earlier, this characterization of the foreperson's
testimony is untenable. We do not know whether any specific
portions of the Bible were actually read or referred to or whether
the Bible was ever even opened. We do not know whether the Bible
was discussed by jurors during deliberations or whether a single
juror simply referred to the Bible generally as something that
should be taken into account. In sum, although the questioning of
the jury foreperson may have been enough to establish that a
"taint-producing event" had occurred, it fell far short of
establishing the magnitude of the "taint-producing event" and the
"extent of any resultant prejudice." Without this information, the
court had no basis upon which to assess the potential efficacy of
-19-
the alternatives to a mistrial, such as further questioning of
individual jurors, a curative instruction, or both.
We recognize that conducting an inquiry into a colorable
question of jury taint, particularly when that taint involves the
Bible, is a delicate matter. See Bradshaw, 281 F.3d at 290. The
privacy and secrecy of jury deliberations play an important role in
isolating the jury from undue influence. United States v. Olano,
507 U.S. 725, 737-38 (1993). However, concern for the sanctity of
jury deliberations may not be elevated above the defendant's right
to have his fate decided by the first jury empaneled in his case.
Although the district court has broad discretion to "fashion an
appropriate procedure for assessing whether the jury has been
exposed to substantively damaging information, and if so, whether
cognizable prejudice is an inevitable and ineradicable concomitant"
of the jury's exposure to an improper outside influence, Bradshaw,
281 F.3d at 290, the judge does not have discretion to refuse to
conduct any inquiry at all regarding the magnitude of the taint-
producing event and the extent of the resulting prejudice.
Accordingly, the district court's investigation in this case fell
short of the "scrupulous exercise of judicial discretion" required
to support the mistrial declaration. See Jorn, 400 U.S. at 485
(plurality opinion).
Additionally, we discern two misconceptions of the law
that appear to have contributed to the overly hasty mistrial
-20-
declaration in this case. First, the district court indicated that
curative instructions may only be "given to the jury before they go
to deliberate." Our case law does not support such a restrictive
view of curative instructions. Although the issue does not arise
often, see Bradshaw, 281 F.3d at 289 n.6 (noting that the vast
majority of reported cases deal with claims of jury taint raised
after the jury has returned a verdict), we have held that curative
instructions are an appropriate remedy when jurors are exposed,
during their deliberations, to extraneous materials. Id. at 291-
92.
In Bradshaw, an unredacted copy of an indictment charging
the defendant with three serious criminal counts that were not
before the jury was found in the jury room and discussed by the
jurors. 281 F.3d at 282, 290. When informed of the incident, the
court first conducted an individual voir dire of each juror to
determine precisely what had occurred and assess the magnitude of
its impact on the jury's deliberations. Id. at 290. Then, the
court gave a "strongly-worded curative instruction." Id. at 291.
Finally, the court undertook a second round of individual voir dire
examinations, inquiring into each juror's ability to "'put out of
[his or her] mind[] entirely the facts and circumstances of the
extraneous document' so he or she might decide the case solely on
the evidence introduced at trial." Id. During its questioning,
the court probed "the extent of the jurors' exposure to the
-21-
extraneous information and its potential impact on their ability to
render an impartial verdict." Id. at 291-92. This careful
investigatory process, coupled with the curative instruction,
allowed the court to make "explicit findings that [were] amply
rooted" in the record and fully supported its decision to allow the
empaneled jury to proceed to a verdict. Id. at 292.
The procedure followed by the trial court in Bradshaw was
precisely the course of action repeatedly advocated by Lara's
counsel during the colloquy prior to the mistrial declaration in
this case. The court rebuffed these suggestions by stating that
"[t]he cat is out of the bag" and that "what is done cannot be
undone." In its written opinion denying Lara's motion to dismiss,
the court stated that, "[i]n view of all the circumstances,
cautioning the jurors as to their ability to render a verdict
discarding any reference to the Bible would have been self-
defeating."
We do not understand the basis for these generalities.
Although a more developed record might have supported findings that
the Bible had played a central role in deliberations and that
individual jurors would not have been able to disregard its
influence, we see no basis for such findings in this record. See
Razmilovic, 507 F.3d at 139 (finding mistrial declaration to be an
abuse of discretion when "nothing in the record . . . suggest[ed]
why the use of any of [the alternatives to mistrial suggested by
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the defendant] would have created a risk that the jury would reach
a verdict that would not reflect its 'considered judgment'"
(quoting Washington, 434 U.S. at 509)). We cannot assume, as the
district court apparently did, that individual voir dire of the
jurors and a curative instruction would not have eradicated the
risk of prejudice in this case. See Toribio-Lugo, 376 F.3d at 39
("Where there is a viable alternative to a mistrial and the
district court fails adequately to explore it, a finding of
manifest necessity cannot stand.").
As a second legal misconception, the court treated the
Bible in the jury room as qualitatively different from other types
of extraneous materials or information that may taint a jury's
deliberations.10 At times in the colloquy with counsel, the court
appeared to invoke a per se rule that the presence of the Bible in
the jury room, combined with the mention of it by a juror during
deliberations, produces a taint so egregious that it cannot be
cured.11
10
The government argues that, by failing to raise the issue
below, Lara has waived his claim that the court committed legal
error by invoking a per se rule that a mistrial is required when a
Bible is present in the jury room. We need not consider this
waiver argument because our discussion of the court's attitude
toward the Bible in the jury room is not an independent basis for
our decision. Rather, as we see it, the court's per se approach
was just one factor that contributed to the precipitous decision to
declare a mistrial in this case.
11
At the beginning of its colloquy with counsel, the judge
said, "It seems to me that I just read a case, I'm not certain
where I read it, it was ordered a new trial when the jurors had a
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No such per se rule exists in this – or any other –
circuit. We have never decided a case involving a Bible in a jury
room, nor has the Supreme Court. Moreover, our sister circuits
have addressed the prejudice arising from a Bible in a jury room
only in habeas cases where the jury's discussion of the Bible was
discovered after the jury had returned a verdict. See, e.g.,
Fields v. Brown, 503 F.3d 755, 781-82 (9th Cir. 2007) (en banc)
(denying habeas relief where jury considered, during the penalty
phase of a capital case, Biblical references that exposited
general, well-known themes that cut both in favor of and against
imposition of the death penalty); Robinson v. Polk, 438 F.3d 350,
366 (4th Cir. 2006) (holding that state postconviction court did
not act unreasonably in determining that jury's reading of Bible
passages during sentencing deliberations in a capital case did not
violate petitioner's Sixth Amendment rights); McNair v. Campbell,
416 F.3d 1291, 1308 (11th Cir. 2005) (denying habeas relief where
state court supportably found that two Bible passages were read
Bible in the jury room, because then they're violating the
instructions of the Court that they should not consider anything
but the evidence." Just before questioning the jury foreperson,
the judge remarked, "If this is happening, then we probably have no
other choice than to declare a mistrial if they've been using the
Bible." In response to defense counsel's first suggestion that the
court give a curative instruction, the judge replied, "That's
already done. The cat is out of the bag. We can't now say to this
juror, don't use any Biblical arguments." These statements, taken
together, indicate that the judge perceived a per se rule requiring
a mistrial when a juror makes reference to the Bible during
deliberations.
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during jury deliberations and that "[n]either of these scriptures
contain material which would encourage jurors to find a defendant
guilty or to recommend the death penalty"). These cases, which
arise in an entirely different procedural context, are of limited
utility here.
Nonetheless, against this legal backdrop, the district
court attached undue significance to the presence of the Bible in
the jury room. See United States v. Frabizio, 459 F.3d 80, 91 (1st
Cir. 2006) ("[A]n abuse of discretion occurs when a relevant factor
deserving of significant weight is overlooked, or when an improper
factor is accorded significant weight, or when the court considers
the appropriate mix of factors, but commits a palpable error of
judgment in calibrating the decisional scales."). None of the
cases from our sister circuits even hint at a per se rule that
juror discussion of the Bible in the jury room during deliberations
creates an incurable taint that forecloses any possibility of
curative instruction and requires a mistrial. Because no special
rule exists when the Bible is involved, the district court had a
duty to investigate the "colorable claim of juror taint" in this
case and explore and exhaust the alternatives to mistrial, just as
it would in other situations where extraneous materials have been
brought into the jury's deliberations. See Bradshaw, 281 F.3d at
289-90; Corbin, 590 F.2d at 400. The investigation it conducted
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fell far short of that requirement. The decision to declare a
mistrial on the basis of this record was an abuse of discretion.
III.
We fully appreciate the significance of our decision
here. Our conclusion that the defendant's double jeopardy rights
were violated by the district court's premature declaration of a
mistrial means that the indictment must be dismissed. The
defendant, who is presently incarcerated, cannot be retried on
these charges. Such consequences emphasize the need for careful
consideration of alternatives to a mistrial by the trial judge in
the first instance. In light of the constitutional stakes, "the
judge must always temper the decision whether or not to abort the
trial by considering the importance to the defendant of being able,
once and for all, to conclude his confrontation with society
through the verdict of a tribunal he might believe to be favorably
disposed to his fate." Jorn, 400 U.S. at 486 (plurality opinion).
In this case, defense counsel suggested alternatives to
the mistrial declaration, but the court refused to explore those
alternatives. As a result, the court did not conduct the
investigation necessary to determine the magnitude of the prejudice
resulting from the presence of the Bible in the jury room and the
potential efficacy of steps that might be taken to eradicate the
prejudice. The court's failure to conduct an adequate
investigation leaves us with a record that does not support the
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finding that the mistrial was manifestly necessary. In the absence
of such record support, Lara's "'valued right to have his trial
completed by a particular tribunal' is not to be foreclosed." See
Pierce, 593 F.2d at 419 (quoting Jorn, 400 U.S. at 484-85).
Accordingly, we are compelled to hold that the district court
abused its discretion in denying the motion to dismiss, and we must
remand the case to the district court with instructions to vacate
the defendant's conviction and dismiss the indictment.
So ordered.
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