USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1555
UNITED STATES,
Appellee,
v.
JOSEPH EUGENE BARBIONI,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
_____________________
William Maselli for appellant. _______________
F. Mark Terison, Assistant United States Attorney, with whom _______________
Jay P. McCloskey, United States Attorney, and Elizabeth C. _________________ _____________
Woodcock, Assistant United States Attorney, were on brief for ________
appellee.
____________________
August 7, 1995
____________________
TORRUELLA, Chief Judge. Defendant-appellant Joseph TORRUELLA, Chief Judge. ____________
Barbioni appeals on double jeopardy grounds the district court's
denial of his motion to dismiss. The district court had declared
a mistrial after the jury announced that it was deadlocked.
Finding no abuse of discretion, we affirm.
BACKGROUND BACKGROUND
Appellant Barbioni was indicted and tried for
deliberately making false statements to the United States
Department of Labor Workers' Compensation Program, and for mail
fraud, in violation of 18 U.S.C. 1001 and 1341, respectively.
After a trial that lasted almost four days, the jury was given
instructions by the district court and began its deliberations.
After approximately seven hours, the jury sent a note to the
district court, saying that it could not reach a verdict. The
district court judge then brought the jury back to the courtroom
and gave it some general instructions, such as reminding the
jurors that the verdict must be unanimous. The court then stated
to the jury that it did not intend to keep them there "against
your will and beat a verdict out of you one way or the other, but
I want to make one more effort to attempt to reach a unanimous
verdict if we can." The court continued, "[I]f that's impossible
in your collective judgment, then advise me of that fact in
writing . . . and we'll respond accordingly."
The jury then retired again. After three more hours of
further deliberations, the jury again sent a note to the court
saying that it could not reach a unanimous decision. The judge
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then called counsel for the government and defense counsel into
chambers and explained that he was going to inquire of the jurors
individually whether they all agreed that they could not reach a
verdict. If they all agreed, the court stated, it would declare
a mistrial. The defense objected to this course of action,
requesting that the jury be given more time to deliberate after a
weekend's rest.
Nevertheless, the court polled the jurors individually
in open court. Each juror stated that he or she was satisfied
that the jury was deadlocked, and that further instructions or
deliberations were not likely to resolve the deadlock.
Accordingly, the district court declared a mistrial and dismissed
the jury over defense counsel's objections.
ANALYSIS ANALYSIS
Barbioni now claims that the district court abused its
discretion in declaring a mistrial, and that retrial is barred by
the Double Jeopardy Clause of the United States Constitution. A
decision to declare a mistrial is committed to the sound
discretion of the trial court, Arizona v. Washington, 434 U.S. _______ __________
497, 506 (1978), and we therefore review only for an abuse of
this discretion. After carefully reviewing the record, we see no
such abuse here.
While it is certainly true that a defendant has a
"valued right to have his trial completed by a particular
tribunal," Wade v. Hunter, 336 U.S. 684, 689 (1949), this right ____ ______
is not absolute. Rather, it is subject to the doctrine of
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"manifest necessity." United States v. Ram rez, 884 F.2d 1524, _____________ _______
1528 (1st Cir. 1989) (citing United States v. P rez, 22 U.S. (9 _____________ _____
Wheat.) 579, 580 (1824). Under this doctrine, a district court
may declare a mistrial over the defendant's objection only if it
determines that there is a "manifest necessity" for a mistrial,
or the ends of public justice would otherwise be defeated. Id.; __
see also United States v. DiPietro, 936 F.2d 6, 9 (1st Cir. _________ ______________ ________
1991). Moreover, a district court must find, based on the
particular circumstances surrounding the trial and the jury's
deliberations, that there exists a "high degree" of necessity for
a mistrial before making such a declaration. Ram rez, 884 F.2d _______
at 1528-29 (citing Arizona v. Washington, 434 U.S. at 506). _______ __________
Examining the circumstances of the instant case, we
think that the district court did not abuse its discretion in
finding "manifest necessity" for declaring a mistrial. The jury
deliberated for almost ten hours, after which each individual
juror unequivocally expressed the opinion that the jury could not
reach a unanimous decision. The court polled the jurors on this
point with great care before concluding that further deliberation
would be futile.1 Moreover, the trial was a relatively short
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1 Barbioni also contends that the court should have instead sent
the jurors home and reconvened them for deliberations the
following Monday. Under the circumstances, we cannot find error
in the court's rejection of this suggestion. The jurors had
unanimously declared to the court that they did not believe that
further deliberations would be fruitful. By disregarding the
jurors on this point 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 do not mean that the district court was obliged to take this
view, but it was a pertinent consideration.
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one, and the legal issues at stake were not complex.
Nevertheless, the jurors could not reach a verdict after ten
hours of deliberation. We think that these circumstances
rationally permitted the district court to conclude that manifest
necessity justified the declaration of a mistrial.
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. Richardson v. United __________ ______
States, 468 U.S. 317, 324 (1984); United States v. Porter, 807 ______ _____________ ______
F.2d 21, 22 (1st Cir. 1986), cert. denied, 481 U.S. 1048 (1987). _____ ______
Given the district court's sound exercise of its discretion in
declaring a mistrial, we see no reason here to depart from this
rule. Accordingly, the district court's declaration of a
mistrial and denial of Barbioni's motion to dismiss the charges
are affirmed.2 ________
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2 Barbioni also contends on appeal that the district court erred
in its modified Allen instruction to the jury. See Allen v. _____ ___ _____
United States, 164 U.S. 492 (1896). At the time the charge was _____________
given, however, defense counsel raised no objections to the
instruction. Even when the district court had finished and asked
counsel if they had anything to add to the modified Allen charge, _____
defense counsel stated, "No, your Honor. Thank you." Because
Barbioni did not object to the instruction, and raised no
arguments or suggestions when given the opportunity to do so by
the district court, we deem this argument waived on appeal.
Windsor Mount Joy v. Giragosian, 53 F.3d __, __ (1st Cir. 1995) _________________ __________
(arguments not properly raised below are deemed waived on
appeal).
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