FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30067
Plaintiff-Appellee, D.C. No.
v. 3:06-CR-00069-
JOHN D. JEFFERSON, RRB
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted January 23, 2009*
Seattle, Washington
Filed May 26, 2009
Before: Robert R. Beezer, Richard C. Tallman and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Beezer
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
6121
6124 UNITED STATES v. JEFFERSON
COUNSEL
Louis James Menendez, Menendez Law Office, Juneau,
Alaska, and Marcia E. Holland, contract attorney, Juneau,
Alaska, for the defendant-appellant.
Daniel R. Cooper, Jr., Assistant United States Attorney,
Anchorage, Alaska, for the plaintiff-appellee.
UNITED STATES v. JEFFERSON 6125
OPINION
BEEZER, Circuit Judge:
John Jefferson appeals from a final judgment entered in the
district court upon his conditional guilty plea to the charge of
attempted possession of methamphetamine with intent to dis-
tribute. Jefferson challenges the district court’s denial of his
motion to suppress by arguing that the detainment of his
express mail package, which had a contractually guaranteed
time of delivery, violated the Fourth Amendment. Jefferson
also challenges, as a violation of the Double Jeopardy Clause
of the Fifth Amendment, his retrial after the first jury indi-
cated that it was “unable to come to a decision” on the intent
to distribute offense but convicted him of the lesser-included
offense of attempted possession.
The district court had jurisdiction under 21 U.S.C.
§§ 841(b)(1)(A) and 846. We have jurisdiction under 28
U.S.C. § 1291. We affirm.
I
On the morning of April 6, 2006, an express mail package
addressed to John Jefferson arrived at the United States Post
Office in Juneau, Alaska. The package was sent from Oregon
on April 5 and delivery was guaranteed by 3:00 p.m. on April
7. The postal clerk processing the package telephoned a postal
inspector in Anchorage. The inspector had previously
instructed clerks to notify him if any packages arrived that
were to be delivered to Jefferson’s address. The inspector told
the clerk to detain the package overnight.
The inspector arrived in Juneau the morning of April 7
along with a law enforcement team and a narcotics-detection
canine. The inspector visually inspected the outside of the
package and submitted it to a canine sniff. The canine alerted
to narcotics. Law enforcement applied for a search warrant,
6126 UNITED STATES v. JEFFERSON
which the magistrate judge granted at 11:55 a.m. Law
enforcement opened the package and discovered 253 grams of
methamphetamine. At approximately 1:30 p.m., law enforce-
ment obtained a beeper warrant and placed a beeper inside the
package. Around 5:00 p.m., law enforcement made a con-
trolled delivery of the package to Jefferson’s address. The
beeper soon went off and law enforcement arrested Jefferson.
The government prosecuted Jefferson for attempted posses-
sion of methamphetamine with intent to distribute and the
lesser-included offense of attempted possession. Jefferson
moved the district court to suppress the methamphetamine.
The district court denied the suppression motion.
At trial, the district court provided the jury with a verdict
form for the intent to distribute offense and a verdict form for
the attempted possession offense. The jury instructions pro-
vided that “if after all reasonable efforts you are unable to
reach a verdict [on the intent to distribute offense], you should
record the decision on the verdict form and go on to consider
whether defendant is guilty or not of the lesser included
offense of Attempted Possession of a Methamphetamine.”
After deliberating, the jury informed the district court that it
had reached a verdict.
The verdict form for the intent to distribute offense origi-
nally read, in pertinent part: “We, the Jury . . . do find the
Defendant, JOHN D. JEFFERSON, ___________ (Guilty or
Not Guilty) of the crime of Attempted Possession of a Con-
trolled Substance with Intent to Distribute . . . .” The jury
crossed out the word “do” and wrote in “were unable to.” The
jury also wrote the following on the verdict form: “The jury
was unable to come to a decision on this verdict.” On the ver-
dict form for the attempted possession offense, the jury found
Jefferson “Guilty.”
Jefferson requested the district court to order continued
deliberations, which the court did after reading the jury a
UNITED STATES v. JEFFERSON 6127
modified Allen charge.1 After continued deliberations, the jury
sent the court a note, which the court read into the record:
“We were under the impression that if we were unable to
come to a decision on verdict 1, we would record the decision
on the verdict form and go (indiscernible) the defendant’s
guilty or not unless—if we cannot come to a unanimous ver-
dict on 1, are we able to vote yes?” The district court, upon
the agreement of Jefferson and the government, answered the
jury’s question affirmatively.
Upon further deliberations, the jury indicated that it had
reached a verdict and again gave the court the interlineated
verdict forms. The district court decided “to go ahead and
publish the verdict. Nothing has changed.” The court polled
the jurors as to whether further deliberations might produce a
verdict on the intent to distribute offense, all of whom indi-
cated that further deliberations would be unavailing. Neither
the government nor Jefferson objected to the district court
declaring a mistrial because of the hung jury.
After the court dismissed the jury, the government
announced that it would retry Jefferson on the intent to dis-
tribute offense. Jefferson moved to dismiss his retrial based
on double jeopardy, which the district court summarily
denied. Jefferson entered a conditional guilty plea on the
intent to distribute offense, preserving for appeal the denial of
his suppression motion and double jeopardy motion.
II
“We review de novo the denial of a motion to suppress.”
United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.
2004) (en banc). “Whether the exclusionary rule applies to a
given case is reviewed de novo, while the underlying factual
findings are reviewed for clear error.” Id.
1
An “Allen charge” is a supplemental instruction typically given to the
jury after it indicates that it is having trouble reaching unanimity. Allen v.
United States, 164 U.S. 492, 501 (1896).
6128 UNITED STATES v. JEFFERSON
“We review de novo the denial of a motion to dismiss on
double jeopardy grounds.” United States v. Bhatia, 545 F.3d
757, 759 n.1 (9th Cir. 2008).
III
[1] Jefferson argues that the district court erred in denying
his suppression motion because the postal inspector’s detain-
ment of his package on April 6 violated the Fourth Amend-
ment. The first clause of the Fourth Amendment safeguards
“[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei-
zures.”2 U.S. Const. amend. IV. “This text protects two types
of expectations, one involving ‘searches,’ the other ‘seizures.’
A ‘search’ occurs when an expectation of privacy that society
is prepared to consider reasonable is infringed. A ‘seizure’ of
property occurs when there is some meaningful interference
with an individual’s possessory interests in that property.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984) (foot-
notes omitted). “It has long been established that an addressee
has both a possessory and a privacy interest in a mailed pack-
age.” United States v. Hernandez, 313 F.3d 1206, 1209 (9th
Cir. 2002).
[2] Our case law expressly forecloses any assertion by Jef-
ferson that his privacy interests in the package were impli-
cated. The postal inspector’s visual inspection of the package
did not implicate the Fourth Amendment because “[w]hat a
person knowingly exposes to the public . . . is not a subject
of Fourth Amendment protection.” United States v. Hoang,
486 F.3d 1156, 1159 (9th Cir. 2007) (quoting Katz v. United
States, 389 U.S. 347, 351 (1967)). Likewise, the postal
inspector’s “use of a well-trained narcotics-detection dog . . .
[did] not implicate legitimate privacy interests.” Illinois v.
2
“Letters and other sealed packages are in the general class of effects
in which the public at large has a legitimate expectation of privacy[.]”
United States v. Jacobsen, 466 U.S. 109, 114 (1984).
UNITED STATES v. JEFFERSON 6129
Caballes, 543 U.S. 405, 409 (2005); see also Hoang, 486 F.3d
at 1160.
[3] Because Jefferson’s privacy interests were not impli-
cated, “the only constitutional interest potentially implicated
is [his] possessory interest in the package.” See Hoang, 486
F.3d at 1160. “We have characterized the possessory interest
in a mailed package as being solely in the package’s timely
delivery.” Id. (citing United States v. England, 971 F.2d 419,
420-21 (9th Cir. 1992)). “In other words, an addressee’s pos-
sessory interest is in the timely delivery of a package, not in
having his package routed on a particular conveyor belt,
sorted in a particular area, or stored in any particular sorting
bin for a particular amount of time.” Id. (citation and internal
quotation marks omitted).
[4] Jefferson argues that his possessory interest in “timely”
delivery arose on April 6, “[a]t the time the package was
removed from the mail stream and not delivered in the normal
fashion along with the other Express Mail packages.” In
United States v. Hoang, we explicitly left unanswered
whether a contractually guaranteed delivery time affects the
Fourth Amendment possessory interest of a package’s sender
or recipient. See id. at 1162 n.5 (“We observe that the terms
of service in the contract between the sender and FedEx may
also alter the expectations of the sender or the recipient and
may very well affect a subsequent court’s analysis of the pro-
priety of any FedEx-approved inspection and diversion of pack-
ages.”).3 The United States Court of Appeals for the First
Circuit answered this question almost twenty years ago in
United States v. LaFrance, 879 F.2d 1 (1st Cir. 1989).
In LaFrance, per the instructions of law enforcement, a
Federal Express employee alerted law enforcement that a
package had arrived addressed to LaFrance. Id. at 2-3. The
3
In this case, we observe no Fourth Amendment distinction between
public and private package carriers.
6130 UNITED STATES v. JEFFERSON
package had arrived in the morning and delivery was guaran-
teed by 12:00 p.m. that day. Id. at 3. Law enforcement
directed the employee to deliver the package to the police
department instead of LaFrance. Id. The package arrived at
the police department around 12:45 p.m., hence 45 minutes
after the guaranteed delivery time. Id. At about 1:15 p.m., the
package was subjected to a narcotics-detection canine sniff
and the canine alerted to contraband. Id. LaFrance presented
essentially the same arguments for suppression as those Jef-
ferson now advances.
The First Circuit observed that “a possessory interest
derives from rights in property delineated by the parameters
of law, in this case, contract law.” Id. at 7; see also Rakas v.
Illinois, 439 U.S. 128, 143 n.12 (“Legitimation of expecta-
tions of privacy by law must have a source outside of the
Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized
and permitted by society.”). The First Circuit noted the horn-
book contract law principle “that where a delivery time is
agreed upon, a court should not intrude to imply a (different)
reasonable time for delivery.” LaFrance, 879 F.2d at 7.
The First Circuit held that “the only possessory interest at
stake before Thursday noon was the contract-based expec-
tancy that the package would be delivered to the designated
address by morning’s end. FedEx obligated itself to no more
than that.” Id. In addressing the time period “[f]rom noon
until 2:15 p.m.,” during which time LaFrance had a posses-
sory interest in the package but law enforcement had yet to
establish probable cause, the First Circuit concluded that the
detention was reasonable based on the circumstances. Id. at
10; see also Hoang, 486 F.3d at 1159 (“Once a search or sei-
zure that implicates the Fourth Amendment has occurred, the
reasonableness of that act must be determined by weighing
the public interest against the protected private interest.”).
[5] The reasoning of LaFrance is convincing. We hold that
an addressee has no Fourth Amendment possessory interest in
UNITED STATES v. JEFFERSON 6131
a package that has a guaranteed delivery time until such deliv-
ery time has passed. Before the guaranteed delivery time, law
enforcement may detain such a package for inspection pur-
poses without any Fourth Amendment curtailment. See United
States v. Gill, 280 F.3d 923, 932-33 (9th Cir. 2002) (Gould,
J., concurring) (“Investigators may inspect mail as they wish
without any Fourth Amendment curtailment, so long as the
inspection does not amount to a ‘search,’ and so long as it is
conducted quickly enough so that it does not become a seizure
by significantly delaying the date of delivery.”). Once the
guaranteed delivery time passes, however, law enforcement
must have a “reasonable and articulable suspicion” that the
package contains contraband or evidence of illegal activity for
further detainment. See Hoang, 486 F.3d at 1160.
[6] In this case, the post office guaranteed that Jefferson
would receive his package by 3:00 p.m. on April 7. Any
expectation that Jefferson or the post office may have had that
the package could arrive earlier is irrelevant. See LaFrance,
879 F.2d at 7. The postal inspector did not need any suspicion
to detain Jefferson’s package overnight on April 6 because
Jefferson did not yet have a possessory interest in the pack-
age. By the time “the constitutional chemistry was altered” at
3:00 p.m. on April 7, see id., law enforcement had already
established probable cause to seize Jefferson’s package. See
Hoang, 486 F.3d at 1160 n.1. Thus, law enforcement acted
well within the bounds of the Fourth Amendment in detain-
ing, seizing and then searching Jefferson’s package.
[7] In sum, we hold that a package addressee does not have
a Fourth Amendment possessory interest in a package that has
a guaranteed delivery time until the guaranteed delivery time
has passed. Jefferson had no Fourth Amendment possessory
interest in the “timely” delivery of his package until 3:00 p.m.
on April 7. We need not weigh the public interest in the pack-
age’s detainment against the protected private interest because
probable cause was established before Jefferson gained a pos-
sessory interest in the package. See id. at 1159.
6132 UNITED STATES v. JEFFERSON
We affirm the district court’s denial of Jefferson’s suppres-
sion motion.
IV
Jefferson argues that permitting his retrial violated the Dou-
ble Jeopardy Clause of the Fifth Amendment. The Double
Jeopardy Clause guarantees 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. The Double Jeopardy Clause is
not an absolute bar to successive trials. Justices of Boston
Mun. Court v. Lydon, 466 U.S. 294, 308 (1984).
[8] Jefferson first argues that the first jury impliedly acquit-
ted him. “The Fifth Amendment’s Double Jeopardy Clause
prohibits retrial after an acquittal, whether express or implied
by jury silence.” Brazzel v. Washington, 491 F.3d 976, 981
(9th Cir. 2007) (citing Green v. United States, 355 U.S. 184,
191 (1957)). “An implied acquittal occurs when a jury returns
a guilty verdict as to a lesser included or lesser alternate
charge, but remains silent as to other charges, without
announcing any signs of hopeless deadlock.” Id.
[9] The first jury did not impliedly acquit Jefferson because
it was not “silent” on the issue of Jefferson’s intent to distrib-
ute. Rather, the first jury indicated that it was hopelessly
deadlocked on that offense. On the interlineated verdict form
for the intent to distribute offense, the jury indicated that it
was “unable to” find Jefferson guilty or not guilty. To make
their position abundantly clear, the jury also wrote that it was
“unable to come to a decision on this verdict.” Each juror con-
firmed the hopeless deadlock when polled by the district
court. The jury was anything but “silent” in this case; in fact,
it was almost as “loud” as a jury can be.
[10] Jefferson next argues that the Double Jeopardy Clause
prohibits his retrial because “manifest necessity” did not exist
for the district court to declare a mistrial. “In contrast to an
UNITED STATES v. JEFFERSON 6133
implied acquittal, retrial is permitted where there is a mistrial
declared due to the ‘manifest necessity’ presented by a hung
jury.” Id. at 982 (citing United States v. Perez, 22 U.S. 579,
580 (1824)). “A hung jury occurs when there is an irreconcil-
able disagreement among the jury members.” Id. The record
should reflect that the jury is “genuinely deadlocked.” Rich-
ardson v. United States, 468 U.S. 317, 324 (1984). “The trial
judge’s decision to declare a mistrial when he considers the
jury deadlocked is therefore accorded great deference by a
reviewing court.” Arizona v. Washington, 434 U.S. 497, 510
(1978).
[11] In this case, as shown above, the jury repeatedly indi-
cated that it was genuinely deadlocked. When the jury first
returned the interlineated verdict forms, the jury told the dis-
trict court that it had reached a verdict. Instead of accepting
the jury’s verdict on the attempted possession offense and
deadlock on the intent to distribute offense, the district court,
upon the request of Jefferson, ordered continued delibera-
tions. The district court also read the jury a modified Allen
charge. In the midst of the jury’s continued deliberations, the
jury sent a note which sought to confirm the jury’s “impres-
sion that if we were unable to come to a decision on verdict
1, we would record the decision on the verdict form.” The dis-
trict court confirmed the jury’s understanding that it could
find Jefferson guilty on the attempted possession offense
without finding him guilty, or not guilty, on the intent to dis-
tribute offense. As such, the jury soon returned the same inter-
lineated verdict forms to the district court.
[12] There can be no serious dispute as to whether the jury
was genuinely deadlocked because the jury notified the dis-
trict court as such on several occasions. A district court need
not, and indeed should not, order continued deliberations once
it becomes apparent that hopeless deadlock exists. The district
court appropriately exercised its discretion in declaring a mis-
trial based on the manifest necessity that confronted it.
6134 UNITED STATES v. JEFFERSON
We affirm the district court’s denial of Jefferson’s double
jeopardy motion.
V
The district court correctly denied Jefferson’s motion to
suppress and motion to dismiss based on double jeopardy.
AFFIRMED.