Royce Gouveia v. Nolan Espinda

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROYCE C. GOUVEIA, No. 17-16892
Petitioner-Appellee,
D.C. No.
v. 1:17-cv-00021-
SOM-KJM
NOLAN P. ESPINDA, Warden,
Director of the Department of Public
Safety for the State of Hawaii; OPINION
CLARE CONNORS, Attorney General
of the State of Hawaii,
Respondents-Appellants.

Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding

Argued and Submitted October 12, 2018
Honolulu, Hawaii

Filed June 12, 2019

Before: Kim McLane Wardlaw, Marsha S. Berzon,
and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Berzon
2 GOUVEIA V. ESPINDA

SUMMARY *

Habeas Corpus

The panel affirmed the district court’s judgment granting
Royce Gouveia’s 28 U.S.C. § 2241 habeas corpus petition
challenging the trial court’s grant of a mistrial in his Hawaii
manslaughter case in which, after the jury reached a verdict
but before the verdict was announced, jurors expressed
concern for their safety because of a scary-looking man in
the courtroom.

The panel held that the Rooker-Feldman doctrine does
not preclude a federal district court from exercising
jurisdiction under § 2241. The panel did not need to
determine precisely what level of deference is owed to the
trial court’s determination that there was manifest necessity
for a mistrial. The panel held that even under a more
deferential standard, the trial court’s manifest-necessity
determination was erroneous because the trial court failed to
provide any meaningful consideration of alternatives to
mistrial. The panel concluded that the district court therefore
did not err in concluding that retrying Gouveia would violate
the Double Jeopardy Clause.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 GOUVEIA V. ESPINDA 3

COUNSEL

Donn R. Fudo (argued), Deputy Prosecuting Attorney,
Honolulu, Hawaii, for Respondents-Appellants.

Peter C. Wolff, Jr. (argued), Federal Public Defender,
Honolulu, Hawaii, for Petitioner-Appellee.

OPINION

BERZON, Circuit Judge:

Jurors in Royce Gouveia’s trial saw a menacing-looking
man on the prosecution side of the courtroom before they
retired to deliberate. The jury proceeded to deliberate and
reached a verdict. Before the verdict was announced,
however, jurors expressed concern for their safety because
of the scary-looking man. All the jurors stated that their
verdict was unaffected by the man’s presence. Nonetheless,
the trial court, at the prosecution’s request and against
Gouveia’s opposition, granted a mistrial. On federal habeas
review, the district court held that there was no manifest
necessity for the mistrial, so retrying Gouveia would violate
his right not to be subjected to double jeopardy. We agree.

I

Gouveia was tried for manslaughter in Hawaii state court
for the death of Albert Meyer. See Haw. Rev. Stat. § 707-
702(1)(a). The testimony was that Gouveia struck Meyer
during an altercation, and Meyer died after hitting his head
on the pavement. The presentation of evidence concluded,
both sides gave closing arguments, and the jury was sent off
to deliberate.
4 GOUVEIA V. ESPINDA

This case turns on two notes the jury sent to the trial court
in close succession. The first informed the court that the jury
had “reached a verdict.” A second, drafted a few minutes
after the verdict message, stated: “Concern. This morning on
prosecutor’s side of courtroom there was a man, shaved
head, glaring and whistling at defendant. We have concern
for our safety as jurors.”

After receiving the messages, the trial court gathered the
attorneys and informed them about the notes. Explaining that
it was inclined “to take no action on this,” the trial court
asked the parties what approach they suggested. The
prosecution requested that the jurors be questioned, and
Gouveia’s attorney agreed.

The court then conducted individual voir dire of each
juror. Before beginning, the court asked the attorneys
whether they “ha[d] any idea what this is based on.” The
prosecution noted that Meyer’s brother had been in the
courtroom that morning “with [a] shaved head” and
appeared “pretty upset.”

The trial court proceeded to question each juror.
Although a few testified that the man seemed angry and that
they were afraid for their safety, all twelve jurors stated that
the menacing-looking man’s presence had not affected their
votes. The jurors gave conflicting testimony as to when the
safety concern about the shaved-headed man first came up
in deliberations, some saying at the outset, others toward the
end, and others only after the verdict was reached. One juror
stated, “Yes,” when asked whether the fear of the man
“impact[ed] other people’s decision,” but did not elaborate
as to how she knew that or what the impact was. But she,
like all the others, said her own decision was unaffected.
 GOUVEIA V. ESPINDA 5

After questioning the jury, the trial court asked
Gouveia’s attorney whether he wanted the court to take any
additional steps; the attorney declined. The prosecution,
however, moved for a mistrial, arguing that there was
manifest necessity for a mistrial because some jurors had
expressed safety concerns. 1 According to the prosecution,
the fact that Meyer’s brother was “associate[d] with the
prosecution and the decedent side” might have “lended more
credibility to Mr. Gouveia’s testimony as he testified.”
Gouveia’s attorney opposed the motion, stressing that all the
jurors had stated that their own votes had been unaffected by
the incident, and that no jurors had expressed to the court
any concern about the individual until it was announced that
a verdict had been reached.

After a bit more discussion, the trial court granted the
mistrial motion:

I find it difficult to really believe when I . . .
apply my reason and common sense to this
that at least some of these jurors have . . .
what strikes me as a really serious concern for
their personal safety and it came up according
to, at least as I count, four or five of them, it
. . . was . . . one of the first topics of
discussion when they got back in the room
and started deliberating the case. Somebody
brought it up and they started talking about it.
It frankly beggars my reason and common

1
Initially, the prosecution requested a mistrial “in an abundance of
caution.” The trial court then noted, “If you’re going to move for mistrial,
you better ask me to find manifest necessity,” after which the prosecution
rephrased its motion to include a request for a manifest-necessity
determination.
6 GOUVEIA V. ESPINDA

sense that it would have no bearing on the
deliberations in this case and therefore the
verdict.

I’m going to grant the State’s motion for
mistrial. I’m going to find there’s manifest
necessity for such based on what I said . . .
and everything else that’s been put on the
record, including my questions to counsel.

The verdict’s going to be sealed for future
purposes, if any, but obviously we’re not
going to take the verdict. I’m declaring a
mistrial and I’m finding manifest necessity
for that, because I don’t think there’s
anything short of a mistrial . . . that can cure
it. The verdict’s tainted, in my view, based on
my findings.

A few weeks later, the trial court issued findings of facts
and conclusions of law to further explain its decision. The
court reasoned that “[a]lthough there [was] no specific juror
misconduct” in this case, it would adopt “the well-
established ‘harmless beyond a reasonable doubt’ standard”
for juror-misconduct claims. Relying on that standard, the
trial court found that “the jurors’ statements that the incident
did not affect their decision-making process and/or
deliberations [were] not credible,” and reiterated its prior
conclusion that “the jury was not impartial” and that “there
[was] manifest necessity for a mistrial.”

Gouveia moved to dismiss the prosecution, contending
that there was no manifest necessity for the mistrial. The
constitutional double jeopardy protection, Gouveia
 GOUVEIA V. ESPINDA 7

maintained, would be violated were he retried. The trial
court denied the motion.

When Gouveia appealed the trial court’s manifest-
necessity finding, the appellate court unsealed the verdict
form for purposes of the appeal. The form revealed that the
jury had unanimously found Gouveia not guilty. State v.
Gouveia (Gouveia I), No. CAAP-XX-XXXXXXX, 2015 WL
2066780, at *7 (Haw. Ct. App. Apr. 30, 2015). The state
appellate court affirmed, with one judge dissenting. Id.
at *11; see also id. at *11–13 (Nakamura, C.J., dissenting).
The Hawaii Supreme Court granted discretionary review,
but then affirmed over one justice’s dissent. State v. Gouveia
(Gouveia II), 384 P.3d 846, 852–53 (Haw. 2016); see also
id. at 857 (Nakayama, J., dissenting). The state high court
held that the trial court “did not abuse its discretion in
deciding that manifest necessity existed for a mistrial
because the presumption of prejudice could not be overcome
beyond a reasonable doubt and no reasonable alternatives to
a mistrial were available.” Id. at 853 (majority opinion).

Gouveia then filed a federal habeas petition. He argued
that there was no manifest necessity for a mistrial and that
the jury’s verdict form, now unsealed, precluded Hawaii
from retrying him. The district court granted the petition.
Gouveia v. Espinda (Gouveia III), No. 17-00021 SOM/KJM,
2017 WL 3687309, at *1 (D. Haw. Aug. 25, 2017). It
concluded, first, that jurisdiction under 28 U.S.C. § 2254
was not appropriate, as “Gouveia is not currently ‘in custody
pursuant to the judgment of a State court,’” but that it did
have jurisdiction under § 2241. Id. at *5 (quoting 28 U.S.C.
§ 2254(d)). The district court then rejected the state’s
contentions that the Rooker-Feldman doctrine or Younger
abstention precluded the court from exercising jurisdiction
over Gouveia’s habeas petition. Id. at *6–7.
8 GOUVEIA V. ESPINDA

On the merits, the district court determined that the now-
unsealed verdict form was not an acquittal for purposes of
double jeopardy. Id. at *10–12. The court first recited several
reasons why the trial court’s conclusion that the jurors were
affected was questionable. Id. at *14. Ultimately, the district
court held that, accepting the trial court’s jury taint
conclusion, Gouveia was entitled to habeas relief. Id. at *15.
Alternative remedies for any valid concerns as existed were
available, the district court reasoned, so there was no
manifest necessity for a mistrial and retrying Gouveia would
violate the Double Jeopardy Clause. Id. at *15–17.

Hawaii timely appealed, challenging the district court’s
exercise of jurisdiction as well as its decision on the merits.

II

We begin with the jurisdictional point: The state argues
that, under the Rooker-Feldman doctrine, the district court
was barred from exercising jurisdiction under 28 U.S.C.
§ 2241 over Gouveia’s habeas petition. We have not directly
addressed the precise question whether Rooker-Feldman
applies to habeas petitions filed under § 2241, although two
other circuits have held that it does not. See Reitnauer v. Tex.
Exotic Feline Found., Inc. (In re Reitnauer), 152 F.3d 341,
343 n.8 (5th Cir. 1998); Garry v. Geils, 82 F.3d 1362, 1365
n.4 (7th Cir. 1996). Our gap on this point is understandable,
as it is rare that we are asked to address an argument so
transparently without merit.

The Rooker-Feldman doctrine takes its name from a pair
of cases—Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
and District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983)—both “brought by state-court losers
complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced
 GOUVEIA V. ESPINDA 9

and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005). The doctrine holds that “a federal
district court does not have subject matter jurisdiction to hear
a direct appeal from the final judgment of a state court.” Noel
v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). “Direct federal
appellate review of state court decisions must occur, if at all,
in the Supreme Court.” Gruntz v. County of Los Angeles (In
re Gruntz), 202 F.3d 1074, 1078 (9th Cir. 2000) (en banc).

Rooker-Feldman is not a constitutional directive but
rather “a statute-based doctrine, based on the structure and
negative inferences of the relevant statutes rather than on any
direct command of those statutes.” Noel, 341 F.3d at 1154–
55. In particular, the doctrine is an interpretation of two
statutes: 28 U.S.C. § 1331, which establishes district courts’
original jurisdiction, and 28 U.S.C. § 1257, which vests
jurisdiction to review most state court decisions solely in the
U.S. Supreme Court. See Gruntz, 202 F.3d at 1078. “The
Rooker-Feldman doctrine merely recognizes that 28 U.S.C.
§ 1331 is a grant of original jurisdiction, and does not
authorize district courts to exercise appellate jurisdiction
over state-court judgments, which Congress has reserved to
[the Supreme] Court.” Verizon Md. Inc. v. Pub. Serv.
Comm’n, 535 U.S. 635, 644 n.3 (2002).

Because the Rooker-Feldman principle is purely
statutory, “Congress, if so minded, may explicitly empower
district courts to oversee certain state-court judgments.”
Exxon Mobil, 544 U.S. at 292 n.8. Put differently, Congress
may, via statute, provide federal district courts with
jurisdiction to review state court decisions as long as that
jurisdiction is conferred in addition to the original
jurisdiction established under § 1331. And Congress “has
done so, most notably, in authorizing federal habeas review
10 GOUVEIA V. ESPINDA

of state prisoners’ petitions.” Id. We have accordingly
recognized that “[i]t is well-settled that the Rooker-Feldman
doctrine does not touch the writ of habeas corpus,” as the
writ is “a procedure with roots in statutory jurisdiction
parallel to—and in no way precluded by—the [Rooker-
Feldman] doctrine.” Gruntz, 202 F.3d at 1079.

Gruntz considered whether habeas review under
28 U.S.C. § 2254, covering “writ[s] of habeas corpus in
behalf of a person in custody pursuant to the judgment of a
State court,” 28 U.S.C. § 2254(a), is limited by Rooker-
Feldman. Gouveia is not currently in custody under a state
court judgment, see Gouveia III, 2017 WL 3687309, at *5–
6, so the district court considered the habeas petition under
28 U.S.C. § 2241, not under § 2254. But the principles
underlying Gruntz still apply. Applying those principles,
Rooker-Feldman does not preclude a federal district court
from exercising jurisdiction under 28 U.S.C. § 2241, if that
statute, like § 2254, confers jurisdiction in addition to the
original jurisdiction already conferred by 28 U.S.C. § 1331.
It does.

Section 2241 provides that “[w]rits of habeas corpus
may be granted by . . . the district courts . . . within their
respective jurisdictions” for prisoners “in custody in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(a), (c)(3). Relying on this grant of
jurisdiction, this court has consistently held that § 2241
confers jurisdiction for “habeas petition[s] raising a double
jeopardy challenge to a petitioner’s pending retrial in state
court.” Wilson v. Belleque, 554 F.3d 816, 821 (9th Cir.
2009).

The first case so to hold was Stow v. Murashige, 389 F.3d
880 (9th Cir. 2004). Like the case at hand, Stow concerned a
petitioner whose double jeopardy claim had been rejected by
 GOUVEIA V. ESPINDA 11

the state supreme court. Id. at 885. The petitioner then filed
a federal habeas petition under § 2254, arguing that the state
supreme court’s conclusion was incorrect. Id. The district
court granted the petition. Id. Stow affirmed the district
court’s grant of habeas corpus but, before doing so,
explained that the petitioner’s petition, “which raised a
double jeopardy challenge to his pending retrial,” was
“properly treated under § 2241,” not § 2254. Id. at 885–87.

We have repeatedly reaffirmed Stow’s holding. 2 Stow
and its progeny make clear that, as in the § 2254 habeas
context considered in Gruntz, jurisdiction in the § 2241
habeas context derives from the federal habeas statutes, not
from § 1331. The upshot is that § 2241, like § 2254, provides
“a procedure with roots in statutory jurisdiction parallel to—
and in no way precluded by—the [Rooker-Feldman]
doctrine.” Gruntz, 202 F.3d at 1079.

In light of Gruntz, Hawaii acknowledges, as it must, that
Rooker-Feldman is inapplicable to federal habeas claims
filed under § 2254. But the state argues that unlike § 2254,
§ 2241 does not confer jurisdiction to review state court
decisions. Why? Because § 2241 lacks the word “judgment.”
Cf. 28 U.S.C. § 2254(a) (“[A] district court shall entertain an
2
See, e.g., Dominguez v. Kernan, 906 F.3d 1127, 1135 n.10 (9th Cir.
2018) (“A pretrial double jeopardy challenge . . . ‘is properly brought
under § 2241.’” (quoting Stow, 389 F.3d at 886)); Harrison v. Gillespie,
640 F.3d 888, 896 (9th Cir. 2011) (en banc) (“Our precedent makes clear
that 28 U.S.C. § 2241 is the proper vehicle for asserting a double
jeopardy claim prior to (or during the pendency of) a successive trial.”);
Wilson, 554 F.3d at 821 (“[A] habeas petition raising a double jeopardy
challenge to a petitioner’s pending retrial in state court is properly treated
as a petition filed pursuant to 28 U.S.C. § 2241.”); Hoyle v. Ada County,
501 F.3d 1053, 1058 (9th Cir. 2007) (“28 U.S.C. § 2241 . . . empowers
district courts to provide habeas relief on pretrial double jeopardy
challenges . . . .”).
12 GOUVEIA V. ESPINDA

application for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
(emphasis added)). This argument has no merit, for two
reasons.

First, the state’s argument confuses the relationship
between the two habeas corpus statutes. Section 2254 “is not
itself a grant of habeas authority, let alone a discrete and
independent source of post-conviction relief.” Frantz v.
Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (quoting
Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir. 2003)). 3
“Instead, it is § 2241 that provides generally for the granting
of writs of habeas corpus by federal courts, implementing
‘the general grant of habeas authority provided by the
Constitution.’” Id. (quoting White v. Lambert, 370 F.3d
1002, 1006 (9th Cir. 2004)). Overlaying that general grant of
jurisdiction, § 2254 “implements and limits the authority
granted in § 2241 for ‘a person in custody pursuant to the
judgment of a State court.” Id. (quoting 28 U.S.C.
§ 2254(a)). Thus, just as habeas review under § 2254 is “a

3
This conception of § 2254 accords with the history of the habeas
corpus statutes. Section 2241 codified the general grant of habeas corpus
jurisdiction conferred by Congress in 1867. See Richard H. Fallon, Jr. et
al., Hart and Wechsler’s The Federal Courts and the Federal System
1197 (7th ed. 2015); see also Medberry, 351 F.3d at 1055. Section 2254
was added in its original form in 1948 to add requirements “dealing
specifically with challenges to custody resulting from conviction in state
court.” Fallon et al., supra, at 1197. The present § 2254, placing further
constraints on federal habeas review of state court convictions, was
added as part of the Antiterrorism and Effective Death Penalty Act of
1996. Id. at 1197–98; see also Williams v. Taylor, 529 U.S. 362, 402
(2000).
 GOUVEIA V. ESPINDA 13

procedure with roots in statutory jurisdiction parallel to—
and in no way precluded by—the [Rooker-Feldman]
doctrine,” Gruntz, 202 F.3d at 1079, so review under § 2241
too is necessarily unaffected by Rooker-Feldman.

Second, and relatedly, the state’s argument badly
misunderstands the relationship between the writ of habeas
corpus and state court judgments. A habeas court does not
review a state court judgment. 4 Rather, “[h]abeas lies to
enforce the right of personal liberty; when that right is denied
and a person confined, the federal court has the power to
release him. Indeed, it has no other power; it cannot revise
the state court judgment; it can act only on the body of the
petitioner.” Fay v. Noia, 372 U.S. 391, 430–31 (1963),
overruled in part on other grounds by Wainwright v. Sykes,
433 U.S. 72 (1977). “‘[T]he essence of habeas corpus is an
attack by a person in custody upon the legality of that
custody,’ not necessarily a challenge to a judgment.”
Dominguez, 906 F.3d at 1137 (alteration in original) (citation
omitted) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484
(1973)). For that reason, the writ does not empower a habeas
court to modify a state court judgment. See Lujan v. Garcia,
734 F.3d 917, 935 (9th Cir. 2013); Douglas v. Jacquez,
626 F.3d 501, 504 (9th Cir. 2010).

To be sure, under § 2254, a habeas court does “oversee
certain state-court judgments,” Exxon Mobil, 544 U.S. at 292
n.8 (emphasis added), by assessing, in the context of custody
pursuant to a judgment, whether those judgments “resulted

4
Some of our cases have been less than precise about this point,
describing § 2254 as “provid[ing] expressly for federal collateral review
of final state court judgments.” Gruntz, 202 F.3d at 1079; see also, e.g.,
Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006); Lambert v. Blodgett,
393 F.3d 943, 978 (9th Cir. 2004).
14 GOUVEIA V. ESPINDA

in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
or were “based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding,” 28 U.S.C. § 2254(d). For that reason, “§ 2254
requires a nexus between ‘the judgment of a State court’ and
the ‘custody’ the petitioner contends is ‘in violation of the
Constitution or laws or treaties of the United States.’”
Dominguez, 906 F.3d at 1136 (quoting 28 U.S.C. § 2254(a)).
But even with that requirement, § 2254 petitions need not
“present a challenge to the underlying state court judgment,”
as long as “the custody complained of is attributable in some
way to the underlying state court judgment.” Id. at 1137. A
§ 2254 petition may challenge, for example, the loss of
good-time credits, see Preiser, 411 U.S. at 487, or the
revocation of parole, see Spencer v. Kemna, 523 U.S. 1, 7
(1998), even though those claims do not challenge the
underlying state court judgment.

In sum, the additional jurisdictional grant provided by
§ 2241—separate and apart from the jurisdiction conferred
under § 1331—means that Rooker-Feldman is not pertinent.
Accordingly, the district court correctly held the Rooker-
Feldman doctrine inapplicable here.

III

We turn to the merits of the double jeopardy question.

The Double Jeopardy Clause provides that “[n]o person
shall . . . be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. The Clause
embodies the principle that “the State with all its resources
and power should not be allowed to make repeated attempts
to convict an individual for an alleged offense.” Green v.
 GOUVEIA V. ESPINDA 15

United States, 355 U.S. 184, 187 (1957). And “[b]ecause
jeopardy attaches before the judgment becomes final, the
constitutional protection also embraces the defendant’s
‘valued right to have his trial completed by a particular
tribunal.’” Arizona v. Washington, 434 U.S. 497, 503 (1978)
(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).

But that principle “does not mean that every time a
defendant is put to trial before a competent tribunal he is
entitled to go free if the trial fails to end in a final judgment.”
Wade, 336 U.S. at 688. “[A] mechanical rule prohibiting
retrial whenever circumstances compel the discharge of a
jury without the defendant’s consent,” the Supreme Court
has explained, “would be too high a price to pay for the
added assurance of personal security and freedom from
governmental harassment which such a mechanical rule
would provide.” Washington, 434 U.S. at 505 n.16 (quoting
United States v. Jorn, 400 U.S. 470, 479–80 (1971) (plurality
opinion)). Rather, “a defendant’s valued right to have his
trial completed by a particular tribunal must in some
instances be subordinated to the public’s interest in fair trials
designed to end in just judgments.” Wade, 336 U.S. at 689.

Recognizing these competing interests, Justice Story
wrote in a seminal double jeopardy case in 1824 that retrial
may be permitted after a mistrial only where a trial court
determines that, “taking all the circumstances into
consideration, there is a manifest necessity for [a mistrial],
or the ends of public justice would otherwise be defeated.”
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
Perez concerned the circumstances in which a deadlocked
jury could support a trial court’s determination that there was
such “manifest necessity.” Id. at 579–80. Since then, the
same term—“manifest necessity”—has been used in “a wide
variety of cases,” beyond the deadlocked jury situation, to
16 GOUVEIA V. ESPINDA

encapsulate the circumstances in which “any mistrial
declared over the objection of the defendant” is permissible
without triggering the double jeopardy protection.
Washington, 434 U.S. at 505–06.

Under the manifest-necessity standard, “a trial can be
discontinued when particular circumstances manifest a
necessity for so doing, and when failure to discontinue
would defeat the ends of justice.” Wade, 336 U.S. at 690. For
purposes of assessing whether that standard is met, “the key
word ‘necessity’ cannot be interpreted literally; instead, . . .
there are degrees of necessity and we require a ‘high degree’
before concluding that a mistrial is appropriate.”
Washington, 434 U.S. at 506. To establish a manifest
necessity, “the prosecutor must shoulder the burden of
justifying the mistrial,” and “[h]is burden is a heavy one.”
Id. at 505. That heavy burden has not been met here, as we
shall explain.

A

Because our review proceeds under § 2241, the
deference owed to a state court under § 2254(d) is not
applicable. See Harrison, 640 F.3d at 897. Instead, we apply
the same standard of review as applied on direct appeal. See
id.

“A judicial determination of manifest necessity is
reviewed for abuse of discretion, but the level of deference
varies according to the circumstances in each case.” United
States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008); see
also Washington, 434 U.S. at 507–09. “At one extreme are
cases in which a prosecutor requests a mistrial in order to
buttress weaknesses in his evidence,” for which “the strictest
scrutiny is appropriate.” Washington, 434 U.S. at 507–08.
“At the other extreme is the mistrial premised upon the trial
 GOUVEIA V. ESPINDA 17

judge’s belief that the jury is unable to reach a verdict.” Id.
at 509. Similarly, “[a] trial judge properly exercises his
discretion to declare a mistrial if an impartial verdict cannot
be reached, or if a verdict of conviction could be reached but
would have to be reversed on appeal due to an obvious
procedural error in the trial.” Illinois v. Somerville, 410 U.S.
458, 464 (1973). In those situations, “[t]he trial judge’s
decision to declare a mistrial . . . is . . . accorded great
deference by a reviewing court.” Washington, 434 U.S. at
510. “Nevertheless, because the mistrial decision affects a
constitutionally protected right, ‘reviewing courts have an
obligation to satisfy themselves that . . . the trial judge
exercised “sound discretion” in declaring a mistrial.’”
United States v. Sanders, 591 F.2d 1293, 1297 (9th Cir.
1979) (quoting Washington, 434 U.S. at 514).

Here, it is highly debatable how much deference is owed
to the trial court’s determination that there was manifest
necessity for a mistrial. To begin, there was no deadlocked
jury—the jury said it had reached a unanimous verdict. Cf.
Perez, 22 U.S. (9 Wheat.) at 580.

Nor does this appear to be a case in which, had the jury
verdict favored the prosecution and a judgment in accord
with the verdict been entered, the verdict would have been
reversible on appeal on account of potential juror bias. Cf.
Somerville, 410 U.S. at 464. Although one juror suggested
that other jurors may have been affected by the presence of
Meyer’s brother, each individual juror testified that that his
presence did not affect his or her own decision. There is no
indication that Meyer’s brother spoke with, or threatened,
any juror in or out of the courtroom. The jury’s note pointed
only to his “shaved head” and the fact that he was “glaring
and whistling at [Gouveia]” as the basis for their concern.
And nothing in the record indicates that the jurors knew his
18 GOUVEIA V. ESPINDA

connection to the trial—that is, that he was Meyer’s brother.
Nor did the presence of Meyer’s brother provide any
extrinsic information to the jury. In short, the circumstances
here appear to fall short of the cases in which we have
reversed a conviction for alleged juror bias or taint. 5

So we have here none of the paradigmatic situations in
which we accord great deference to the trial judge as to the
manifest necessity for a mistrial. Still, the Supreme Court
has also indicated that a case involving potential juror bias
“falls in an area where the trial judge’s determination is
entitled to special respect.” Washington, 434 U.S. at 510. But
the potential for juror bias here—as opposed to the safety
concern communicated to the court postverdict—is
relatively weak, for the reasons already discussed. 6

Additionally, the Supreme Court has recognized that the
Double Jeopardy Clause “prevents a prosecutor or judge

5
Compare, e.g., United States v. Vartanian, 476 F.3d 1095, 1098–
99 (9th Cir. 2007) (holding that a district court did not err in dismissing
a juror who had spoken to members of the defendant’s family, defense
counsel, and the defendant), and United States v. Gonzalez, 214 F.3d
1109, 1113 (9th Cir. 2000) (concluding that juror bias could be assumed
where a juror “disclosed the fact that her ex-husband, the father of her
daughter, dealt and used cocaine—the same drug and conduct at issue”
in the case), with United States v. Gonzalez, 906 F.3d 784, 797 (9th Cir.
2018) (rejecting a juror-bias claim where the juror in question
“unequivocally stated that she could evaluate all of the evidence
impartially”), and United States v. Hayat, 710 F.3d 875, 885–89 (9th Cir.
2013) (affirming a district court’s finding that a juror was not
impermissibly biased despite “several inappropriate racial and religious
comments” made by the juror during deliberations).

6
It is noteworthy as well that, as Washington stressed repeatedly,
the potential bias in that case was caused by defense counsel’s
misconduct. See, e.g., 434 U.S. at 501, 512–13, 516. Here, neither
attorney has any responsibility for the behavior that led to the mistrial.
 GOUVEIA V. ESPINDA 19

from subjecting a defendant to a second prosecution by
discontinuing the trial when it appears that the jury might not
convict,” Green, 355 U.S. at 188, and so protects “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,” Washington, 434 U.S. at 835 (quoting
Jorn, 400 U.S. at 486). Closer scrutiny is therefore especially
appropriate if the parties believed an acquittal was likely
forthcoming. They did.

According to the Hawaii Supreme Court, when the
mistrial was declared, it was “apparent from the record that
the parties believed the sealed verdict was ‘not guilty.’”
Gouveia II, 384 P.3d at 851 n.2. Immediately before
declaring the mistrial, the trial court recognized as much,
stating, “Well, it’s pretty clear to the court what everybody
thinks the verdict is based on your arguments and your
motions and lack of such.” Gouveia therefore had a
significant interest seeing his case proceed to verdict—and
the prosecution likewise had reason for pressing for a
mistrial even if it had no actual concern about jury bias.

How these interests should be balanced is not entirely
clear. Overall, the pertinent factors tend to support
considerably less deference to the trial court than in the
paradigmatic high-deference situation. But we need not
finally determine precisely what level of deference is
appropriate. Even under a more deferential standard, the trial
court erred in concluding that there was manifest necessity
for a mistrial.

B

Under a more deferential standard, for the most part “we
focus on the procedures employed by the judge in reaching
20 GOUVEIA V. ESPINDA

his determination” and assess whether the trial court
“(1) heard the opinions of the parties about the propriety of
the mistrial, (2) considered the alternatives to a mistrial and
chose[] the alternative least harmful to a defendant’s rights,
[and/or] (3) acted deliberately instead of abruptly.”
Chapman, 524 F.3d at 1082 (alterations in original) (quoting
United States v. Bates, 917 F.2d 388, 396 (9th Cir. 1990)).

Here, the trial court’s determination that manifest
necessity justified a mistrial fails at the second step. 7 “A trial
court should consider and correctly evaluate the alternatives
to a mistrial” and, “once the court considers the alternatives,
it should adopt one if less drastic and less harmful to the
defendant’s rights than a mistrial.” Bates, 917 F.2d at 396;
see also 6 Wayne R. LaFave et al., Criminal Procedure
§ 25.2(d) (4th ed. 2015). 8

7
We reject Hawaii’s contention that Gouveia waived this argument
when his attorney agreed with the trial court’s assertion that “[t]here’s
no other remedy short of a mistrial that’s going to cure this or allow us
to take the verdict.” Cf. Ricketts v. Adamson, 483 U.S. 1, 8–9 (1987)
(holding that a defendant may waive double jeopardy protections). As
the district court correctly noted, the Hawaii Supreme Court fully
addressed the availability of reasonable alternatives and so necessarily
considered the issue not waived under state law. See Gouveia II, 384 P.3d
at 856–57; see also Gouveia III, 2017 WL 3687309, at *14 n.2.
8
The Supreme Court has suggested that a trial court need not
consider alternatives when a jury is deadlocked. See Blueford v.
Arkansas, 566 U.S. 599, 609 (2012) (“We have never required a trial
court, before declaring a mistrial because of a hung jury, to consider any
particular means of breaking the impasse . . . .”); see also Renico v. Lett,
559 U.S. 766, 775 (2010). But these statements apply only to deadlocked
juries, and “in cases where the mistrial is based upon something other
than jury deadlock, lower courts have continued to examine alternatives
 GOUVEIA V. ESPINDA 21

Consideration of potential alternatives was especially
important in this case, as the trial court’s substantive
conclusion that manifest necessity existed for a mistrial was
weak. This is not a case in which the indicia of juror bias
were so compelling as to cast significant doubt on the
fairness of the verdict. Instead, the trial court concluded that
a mistrial was needed because it could not “find beyond a
reasonable doubt that there was no impact on the
deliberations or verdict . . . such that the verdict was not
tainted”; the Hawaii appellate courts likewise endorsed the
application of this reasonable doubt standard. See Gouveia
II, 384 P.3d at 854; Gouveia I, 2015 WL 2066780, at *6, 10–
11. The use of the reasonable doubt standard in this context
is questionable. 9 But even if use of the standard were
permissible, the trial court’s strong reliance on the standard
suggests that its belief that “the verdict was . . . tainted” was
not particularly strong. Indeed, immediately before
declaring a mistrial, the trial court itself recognized that it

to mistrial as part of the manifest necessity analysis.” 6 LaFave, supra,
§ 25.2(d).
9
Gouveia does not challenge the Hawaii courts’ use of the
reasonable doubt standard, so we do not determine its propriety. We
note, however, that the application of that standard appears inconsistent
with the Supreme Court’s admonition that “the prosecutor must shoulder
the burden of justifying the mistrial if he is to avoid the double jeopardy
bar.” Washington, 434 U.S. at 505. The Hawaii Supreme Court appears
to have imported the reasonable doubt standard from the harmless error
standard applicable where a defendant claims a denial of due process or
jury trial rights because of juror or prosecutorial misconduct. See
Gouveia II, 384 P.3d at 854. But that standard is applied to protect a
defendant’s constitutional rights: “[B]efore a federal constitutional error
can be held harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.” Chapman v. California,
386 U.S. 18, 24 (1967). Here, it was the prosecution, not the defendant,
that sought a mistrial.
22 GOUVEIA V. ESPINDA

was “a really, really close ruling” on whether a mistrial was
necessary.

Further, the record does not indicate that the jurors knew
of the scary man’s connection to the trial. At most, some
jurors surmised from the man’s location on the prosecution
side of the courtroom and his actions that he was angry at
Gouveia. But the leap from any such surmise to
antiprosecution bias because of those actions is farfetched.
If anything, one would think that if the jurors thought the
unknown man was dangerous and might hurt them if they
sided with Gouveia, they would be biased against Gouveia,
so as to avoid the danger an acquittal might create. That
obviously did not occur, as we know both from the jurors’
attestations that they were not affected and from the
unanimous vote to acquit.

Similarly, the trial court’s agreement with the
prosecution that the jurors’ deliberations were likely affected
by the scary man’s presence was wholly unsupported by any
objective fact in the record. All twelve jurors testified that
that the presence of Meyer’s brother did not affect their own
decisions. The trial court based its determination on a finding
that all twelve jurors’ testimony was not “credible.” But as
the district court noted, “nothing in the record identifies facts
supporting [the] finding that the jurors were not believable.”
Gouveia III, 2017 WL 3687309, at *14. In particular, the
trial court “ma[de] no reference to any juror’s demeanor.”
Id. “The jurors’ ability to serve impartially for the remainder
of the trial is at the heart of the [trial] judge’s determination
of manifest necessity.” United States v. Bonas, 344 F.3d 945,
949 (9th Cir. 2003). If the reasons for that determination are
not reflected in the record, “we have no way of reviewing
whether the district judge’s decision to declare a mistrial was
a sound exercise of discretion.” Id.
 GOUVEIA V. ESPINDA 23

Given all these circumstances, particularly careful
consideration of potential alternatives to a mistrial was
appropriate. We must ensure that the trial court “exercise[d]
a sound discretion . . . with the greatest caution, under urgent
circumstances, and for very plain and obvious causes,” as
Justice Story admonished long ago. Perez, 22 U.S.
(9 Wheat.) at 580.

The trial court here did not meet this standard. Instead,
with regard to consideration of an alternative to subjecting
Gouveia to an entire second trial even though the jury had
reached a verdict (and one probably in his favor), the trial
court simply asserted, “There’s no other remedy short of a
mistrial that’s going to cure this or allow us to take the
verdict, correct? It’s not like we can continue the trial . . . or
I can give them a further instruction.” The trial court’s
conclusion that it could not ask the jury to deliberate further
after cautionary instructions appeared to be based on its
belief that the jury “reached a verdict already,” which could
not be changed or reconsidered. The Hawaii appellate courts
agreed with this assumption, concluding that there were no
reasonable alternatives to a mistrial. See Gouveia II,
384 P.3d at 856–57; Gouveia I, 2015 WL 2066780, at *10.

If, in fact, the verdict were final, as the Hawaii courts
suggested, it would constitute an acquittal for purposes of
the double jeopardy protection, and a new trial would violate
the Double Jeopardy Clause for that reason. “Perhaps the
most fundamental rule in the history of double jeopardy
jurisprudence has been that ‘[a] verdict of acquittal . . . could
not be reviewed, on error or otherwise, without putting [a
defendant] twice in jeopardy, and thereby violating the
Constitution.’” United States v. Martin Linen Supply Co.,
430 U.S. 564, 571 (1977) (alterations in original) (quoting
Ball v. United States, 163 U.S. 662, 671 (1896)). Unlike a
24 GOUVEIA V. ESPINDA

mistrial, after which retrial may be permitted with “manifest
necessity,” an acquittal categorically precludes retrial. See
Brazzel v. Washington, 491 F.3d 976, 981–82 (9th Cir.
2007).

But here, as the district court correctly recognized, the
undisclosed verdict form did not constitute a final verdict for
purposes of the Double Jeopardy Clause. Gouveia III, 2017
WL 3687309, at *16. Contrary to Gouveia’s contentions,
with regard to the double jeopardy protection, “in a jury trial,
an ‘acquittal’ . . . occurs only when the jury renders a verdict
as to all or some of the charges against a defendant.”
Harrison, 640 F.3d at 898. 10 A “verdict,” in turn, “must be
rendered by the jury in open court and accepted by the court
in order to become final.” Id. at 899. 11 This reasoning is in
accord with the Supreme Court’s holding that a preliminary
report on the jurors’ votes “lack[s] the finality necessary to
amount to an acquittal” if it is “possible for [the] jury to
revisit . . . its earlier votes.” Blueford, 566 U.S. at 608.

10
An acquittal may also take the form of a “ruling that the
prosecution’s proof is insufficient to establish criminal liability for an
offense,” including “‘a ruling by the court that the evidence is
insufficient to convict,’ a ‘factual finding [that] necessarily establish[es]
the criminal defendant’s lack of criminal culpability,’ and any other
‘rulin[g] which relate[s] to the ultimate question of guilt or innocence.’”
Evans v. Michigan, 568 U.S. 313, 318 (2013) (alterations in original)
(quoting United States v. Scott, 437 U.S. 82, 91, 98 & n.11 (1978)).

11
Applying these principles, Harrison held that the Double
Jeopardy Clause did not provide a habeas petitioner with the right “to
poll the deadlocked jury on the status of its deliberations in his . . .
capital-sentencing proceeding,” as there was no “procedural mechanism
in which the jury’s preliminary determinations [could] be embodied in a
valid final verdict.” 640 F.3d at 900–01.
 GOUVEIA V. ESPINDA 25

It is precisely because the undisclosed verdict form in
Gouveia’s case was not a final verdict of acquittal that the
Double Jeopardy Clause’s most stringent protections against
retrial after an acquittal do not apply. It cannot both be true
that the verdict was final and could not be altered and that
there was nothing that could be done to avoid a mistrial by
allowing the jury to revisit the nonfinal verdict.

As the verdict was not final, a variety of alternatives
were available to the trial court. The district court recognized
one possible route the trial court could have taken:

[T]he trial judge could have done a brief
investigation into the glaring man and could
then have called the jury back into court and
assured the jury that his inquiries caused him
to conclude that the jurors’ security was
being properly addressed or that there was no
safety threat. . . . The trial judge could then
have sent the jurors back into the deliberation
room to continue their deliberations armed
with these assurances. He could have told the
jurors that they could reach the same result
and even use the same verdict form if, upon
further deliberation, they came to the same
conclusion, while also providing a blank
verdict form for them to use in case they
changed their decision.

Gouveia III, 2017 WL 3687309, at *16. Apart from an
unexplained, conclusory statement—“It’s not like we can
continue the trial . . . or I can give them a further
instruction”—the trial court provided no discussion of this
or any other potential alternative to a mistrial. As the district
court put it: “The admonition that all reasonable alternatives
26 GOUVEIA V. ESPINDA

be considered requires more than an assertion. Finding a
manifest necessity is a hugely consequential matter that
requires a more searching process.” Id. at *15.

Moreover, the trial court’s error was compounded by its
failure to consider the especially prejudicial effect a mistrial
would have on Gouveia. “[I]n the final analysis, 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.
Thus, “once the court considers the alternatives, it should
adopt one if less drastic and less harmful to the defendant’s
rights than a mistrial.” Bates, 917 F.2d at 396.

Retrying Gouveia would expose him to the exact evils
against which the Double Jeopardy Clause protects—that is,
“the personal strain, public embarrassment, and expense of
a criminal trial more than once for the same offense.” Abney
v. United States, 431 U.S. 651, 661 (1977). But the
circumstances of Gouveia’s mistrial were particularly
prejudicial. Here, both sides had already presented their
evidence completely. So, in a retrial, the prosecution would
be fully aware the weaknesses in its own case as well as the
strength of Gouveia’s defenses. The mistrial effectively
“operated as a post-jeopardy continuance to allow the
prosecution an opportunity to strengthen its case.”
Somerville, 410 U.S. at 469. The trial court gave no apparent
weight to Gouveia’s interests in this regard.

C

We are, as the district court was, “sympathetic to the
dilemma facing Gouveia’s trial judge at the time the mistrial
was declared.” Gouveia III, 2017 WL 3687309, at *16. “[A]
 GOUVEIA V. ESPINDA 27

criminal trial is, even in the best of circumstances, a
complicated affair to manage.” Washington, 434 U.S. at 505
n.16 (quoting Jorn, 400 U.S. at 479). Faced with jurors who
expressed “a really serious concern for their personal
safety,” the trial court suspected that the presence of the
menacing-looking man could have affected the jury’s
deliberations and the ultimate verdict reached.

But the Double Jeopardy Clause demands more than
mere suspicion. “[T]he . . . doctrine of manifest necessity
stands as a command to trial judges not to foreclose the
defendant’s option until a scrupulous exercise of judicial
discretion leads to the conclusion that the ends of public
justice would not be served by a continuation of the
proceedings.” United States v. Dinitz, 424 U.S. 600, 607
(1976) (quoting Jorn, 400 U.S. at 485). By failing to provide
any meaningful consideration to alternatives to a mistrial,
the trial court disobeyed that command.

We conclude there was no manifest necessity for a
mistrial. The district court therefore did not err in concluding
that retrying Gouveia would violate his double jeopardy
rights and granting the writ.

IV

The Rooker-Feldman doctrine is inapplicable to § 2241
petitions. And retrying Gouveia would violate the Double
Jeopardy Clause. We affirm the district court’s grant of
Gouveia’s § 2241 petition.

AFFIRMED.