[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15469 June 25, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00975-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL BERROA,
ARIASMENDY PILIER,
FELIX ESTEBAN THOMAS,
Defendants-Appellants.
________________________
No. 02-16114
________________________
D. C. Docket No. 01-00975-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIX ESTEBAN THOMAS,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 25, 2004)
Before WILSON and COX, Circuit Judges, and GEORGE*, District Judge.
GEORGE, District Judge:
During deliberations following an eight day criminal trial, the jury sent two
notes to the district court indicating it had decided some counts but could not
agree on others. In response to the first note, the district court gave a modified
Allen charge. Following the second note, the district court convened the parties,
received the jury’s verdict acquitting the defendants of the decided counts and
declared a mistrial on the undecided counts. The district court, however, failed to
give the parties an opportunity to comment, object, or suggest alternatives prior to
declaring a mistrial, as required by Rule 26.3 of the Federal Rules of Criminal
Procedure.
In this appeal, the defendants contend that the district court’s violation of
Rule 26.3 and the lack of manifest necessity to warrant a mistrial bars the re-trial
*
Honorable Lloyd D. George, United States District Judge for the District of Nevada,
sitting by designation.
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of the undecided counts. Although the Rule 26.3 violation creates a strong
suggestion that the district court did not exercise sound discretion, we find that the
entirety of the circumstances establish that the trial judge did not abuse his
discretion in finding manifest necessity for the declaration of mistrial.1
Factual Background
A federal grand jury returned a four-count indictment charging Felix
Esteban Thomas, Miguel Berroa, Ariasmendy Pilier and three other individuals
with: (1) conspiracy to obstruct, delay, and affect commerce by a robbery of
cocaine from individuals they believed to be engaged in narcotics trafficking by
use of actual or threatened force in violation of 18 U.S.C. § 1951(a) (Hobbs Act)
(Count One); (2) conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count Two); (3) conspiracy to
carry four firearms during and in relation to Counts One and Two, in violation of
18 U.S.C. §§ 924(c)(1)(A) and (o) (Count Three); and (4) carrying and possessing
four firearms during and in relation to Counts One and Two, in violation of 18
1
The defendants also argue that Count One was a lesser included offense of Counts
Two through Four, and that their acquittals bar re-trial. Without further discussion, we find that
the re-trial of defendants on Count 1 is not barred by their acquittals on the other counts.
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U.S.C. §§ 924(c)(1)(A) and (2) (Count Four).2 The indictment stemmed from an
alleged plan to commit an armed home-invasion robbery to take the cocaine and
money.
Thomas, Berroa and Pilier were tried before a jury from May 20, 2002,
through May 28, 2002. After several requests and questions from the jury during
deliberations on May 28 and 29, the jury wrote a note to the court stating, “We
have agreed on some counts. However, we are unable to come to a decision on
others.” After consulting counsel for all parties, the court gave the jury a modified
Allen charge.3 The jury continued its deliberations on May 29 and 30, including
sending another question to the court. After lunch on May 30, the jury notified the
court, “We again have made some decisions. However we can not [sic] come to
an agreement on others.” In response, the district judge convened court and
received the jury’s verdict on the counts that were decided. The jury acquitted
Thomas on Count Four and was unable to reach a verdict on Counts One, Two and
Three. The jury acquitted Berroa and Pilier on Counts Two, Three and Four, but
could not reach a verdict on Count One. The court then excused the jury and
2
The indictment returned five charges but these defendants were not charged in
Count Five.
3
See U.S. Eleventh Circuit District Judges Ass’n Pattern Jury Instructions
(Criminal Cases), Trial Instructions n.6 (West 1997).
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declared a mistrial as to each undecided count. In so doing, the court did not first
provide any party an opportunity to comment on or object to the propriety of a
mistrial, or to suggest alternatives as required by Rule 26.3.
Following this declaration of mistrial and the dismissal of the jury, counsel
for Berroa both objected to the mistrial and requested pretrial release for his client.
The district court, apparently responding to the request for release, indicated that it
would “not consider that at this time,” and that counsel would have to address it
one month later because he was “flying out of this district tomorrow without
question.” The court further indicated that it would instruct staff “to file such
request or any other matter . . . to the magistrate for a report and recommendation,
because I can rule on those matters even though I am not here.”
Berroa and Pilier filed joint motions, adopted by Thomas, (1) for judgment
of acquittal; (2) to dismiss Count One of the indictment pursuant to the Double
Jeopardy Clause; and (3) to dismiss or bar prosecution based on double jeopardy
and collateral or direct estoppel grounds. The defendants argued, as they do on
appeal, that double jeopardy barred retrial because: (1) the district court failed to
comply with Federal Rule of Criminal Procedure 26.3; (2) the declaration of
mistrial was not supported by manifest necessity; and (3) Count One was a lesser
included offense of Counts Two through Four and is thus barred based upon
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principles of collateral or direct estoppel. The district court denied the defendants’
motion for judgment of acquittal and, in an October 3, 2002 order, the district
court denied the defendants’ motions to dismiss Count One, as well as their
motion to dismiss or bar prosecution. In its discussion, the court focused on
“manifest necessity” as a precursor to declaring a mistrial. Finding the jury
genuinely deadlocked, the court concluded that double jeopardy did not bar retrial
on Count One because manifest necessity required a declaration of a mistrial. In
response to the district court’s order, the defendants filed timely notices of
interlocutory appeal.
Discussion
We review an order of mistrial to determine whether it was manifestly
necessary, taking into consideration all circumstances. United States v. Perez, 22
U.S. (9 Wheat.) 579, 580 (1824). The deference we accord to the trial judge’s
finding of manifest necessity varies according to the circumstances, which
circumstances include the basis for the order of mistrial and the trial judge’s
exercise of sound discretion in making the decision. Arizona v. Washington, 434
U.S. 508, 509-510, fn. 28 (1978).
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In our consideration of this matter, we must address a question of first
impression before we can decide the propriety of the order of mistrial.
Specifically, we must determine the impact of the district court’s violation of Rule
26.3 in connection with the order of mistrial. Rule 26.3 provides: “Before
ordering a mistrial, the court must give each defendant and the government an
opportunity to comment on the propriety of the order, to state whether that party
consents or objects, and to suggest alternatives.” Fed. R. Crim. P. 26.3. Without
dispute, the trial judge did not comply with the mandate of Rule 26.3 prior to
discharging the jury and declaring the mistrial.
While no circuit has specifically addressed the consequences of a Rule 26.3
violation, we have the benefit of significant guidance on this issue. Since Rule
26.3 “is not designed to change the substantive law governing mistrials,” see FED.
R. CRIM. P. 26.3 advisory committee’s note, we appropriately begin by looking to
that substantive law. In determining, and reviewing, whether a mistrial is properly
granted, courts have long followed Justice Story’s classic formulation:
[T]he law has invested Courts of justice with the authority to
discharge a jury from giving any verdict, whenever, in their opinion,
taking all the circumstances into consideration, there is a manifest
necessity for the act, or the ends of public justice would otherwise be
defeated. They are to exercise a sound discretion on the subject; and
it is impossible to define all the circumstances, which would render it
proper to interfere. To be sure, the power ought to be used with the
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greatest caution, under urgent circumstance, and for very plain and
obvious causes. . . .
Perez, at 580. More recently, the Supreme Court reiterated that “[t]his
formulation, consistently adhered to by this Court in subsequent decisions, abjures
the application of any mechanical formula by which to judge the propriety of
declaring a mistrial in the varying and often unique situations arising during the
course of a criminal trial.” Illinois v. Somerville, 410 U.S. 458, 461 (1973). The
broad spectrum of reasons for which a mistrial can be properly granted requires,
and is accorded, an equally broad spectrum of levels of scrutiny when reviewing a
determination of manifest necessity. As recognized in Washington, at one
extreme, deserving the “strictest scrutiny,” is the mistrial declared because of the
“unavailability of critical prosecution evidence.” 434 U.S. at 507-508.
At the opposite extreme, which extreme we face in this matter, “is the
mistrial premised upon the trial judge’s belief that the jury is unable to reach a
verdict, long considered the classic basis for a proper mistrial.” Id., at 509. When
such mistrials are declared, the trial judge’s decision is generally accorded great
deference. Id., at 510. Justice Stevens explained the compelling reasons justifying
this deference:
On the one hand, if [the trial judge] discharges the jury when further
deliberations may produce a fair verdict, the defendant is deprived of
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his “valued right to have his trial completed by a particular tribunal.”
But if he fails to discharge a jury which is unable to reach a verdict
after protracted and exhausting deliberations, there exists a significant
risk that a verdict may result from pressures inherent in the situation
rather than the considered judgment of all the jurors. If retrial of the
defendant were barred whenever an appellate court views the
“necessity” for a mistrial differently from the trial judge, there would
be a danger that the latter, cognizant of the serious societal
consequences of an erroneous ruling, would employ coercive means
to break the apparent deadlock. Such a rule would frustrate the public
interest in just judgments.
Id., at 509-510.
Significantly, the deference accorded the trial judge’s finding of manifest
necessity can disappear, even in the classic case of a hung jury, when the trial
judge has not exercised sound discretion. If the record reveals that a trial judge
has acted “for reasons completely unrelated to the trial problem which purports to
be the basis for the mistrial ruling, close appellate scrutiny is appropriate.” Id., at
510, fn. 28.
We are mindful that, because jeopardy attaches before a jury returns its
verdict, any determination to declare a mistrial implicates a defendant’s “valued
right” to have the empaneled jury reach a verdict. Nevertheless, as Justice Black
recognized in Wade v. Hunter, 336 U.S. 684, 689 (1949), “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
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judgments.” In Wade, the Court applied the test of manifest necessity, as
established in Perez, as the appropriate mechanism to determine when this valued
right of the defendant is properly subordinated to society’s interest in having a jury
decide the factual question of his guilt or innocence. Id.
We also note that, prior to the adoption of Rule 26.3, courts had addressed
the issue of a trial judge’s failure to hear from the parties prior to declaring a
mistrial. Most helpful are the two decisions that prompted Rule 26.3: United
States v. Dixon, 913 F.2d 1305 (8th Cir. 1990) and United States v. Bates, 917 F.2d
388 (9th Cir. 1990). See FED. R. CRIM. P. 26.3 advisory committee’s note. In
Dixon, the Eighth Circuit noted that “consultation with counsel and consideration
of available alternatives are consistent with the exercise of sound discretion,”
while “[a] precipitate decision, reflected by a rapid sequence of events culminating
in a declaration of mistrial, would tend to indicate insufficient concern for the
defendant’s constitutional protection.” 913 F.2d at 1311. As a result of the
precipitous nature of the trial judge’s decision in Dixon, which was evidenced by a
rapid sequence of events that included (but was not limited to) the failure to hear
from defense counsel, the appellate court applied close appellate scrutiny, rather
than deference, to find the order of mistrial was not manifestly necessary.
In Bates, the appellate court noted:
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The Supreme Court and appellate courts have relied on four
indicators in determining whether the trial court abused its discretion.
Has the trial judge (1) heard the opinions of the parties about the
propriety of the mistrial, (2) considered the alternatives to a mistrial
and chosen the alternative least harmful to a defendant’s rights, (3)
acted deliberately instead of abruptly, and (4) properly determined
that the defendant would benefit from the declaration of mistrial.
917 F.2d at 396. As the Ninth Circuit observed, “trial courts are much more likely
to have exercised sound discretion when they listen to the parties before declaring
a mistrial and dismissing a jury.” Id. In Bates, the Ninth Circuit’s finding that the
trial court abused its discretion was strongly suggested by the combination of the
trial court’s failure to hear from the parties, its failure to consider a “most
important alternative,” and its abrupt decision. Id., at 398.
Considered collectively, these cases establish that, prior to Rule 26.3, trial
courts were strongly advised by appellate courts to provide parties an opportunity
to be heard before declaring a mistrial. Although the substantive law prior to Rule
26.3 advised rather than mandated that a trial judge hear from the parties, the trial
judge’s failure to hear the parties was one factor, among several, that appellate
courts considered in determining whether the trial court exercised sound
discretion. Against this context, we find that Rule 26.3 was enacted to codify
rather than to change the existing law. The primary effect of Rule 26.3 reveals
itself as prophylactic; Rule 26.3 recalls to trial judges the critical importance of
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consultation with counsel. Although Rule 26.3 now mandates that which was
previously strongly advised, the failure to hear from the parties has invariably
been a factor to be considered when applying the manifest necessity test.
Consistent with the adoption of Rule 26.3, a trial court’s failure to hear from the
parties remains as one of several factors to be considered in determining whether
the trial court exercised sound discretion. Consistent with the manifest necessity
test, the extent to which a Rule 26.3 violation indicates a lack of sound discretion
must be considered and resolved based upon the individual and varying
circumstances of each case. As Rule 26.3 mandates that a trial court provide the
parties an opportunity to be heard, the failure to comply with that mandate
necessarily creates a strong suggestion that a trial judge did not exercise sound
discretion. Accordingly, we hold that a violation of Rule 26.3–the failure to give
the parties an opportunity to comment, object, or suggest alternatives before
declaring a mistrial–is one factor to be considered in determining whether a trial
judge exercised sound discretion.
In this matter, having considered the entirety of circumstances established
by the record, we find that the trial judge exercised sound discretion in ordering
the mistrial. The mistrial was granted in the “classic case” of a deadlocked jury, a
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circumstance in which great deference is generally accorded to the decision of the
trial judge.
The trial judge did not hear from the parties prior to declaring a mistrial.
We consider this failure significant, given the mandate of Rule 26.3, and it
strongly suggests that the trial judge did not exercise sound discretion.
By contrast, the events leading to the decision to declare a mistrial were not
rapid, and we cannot say that the trial judge’s decision was precipitous. Without
dispute, after receiving the jury’s note on the afternoon of May 30 declaring that it
could not agree on some counts, the district court convened counsel and the jury,
took the verdict and immediately declared a mistrial as to the other counts.
Significantly, before declaring the mistrial, the district court consulted neither the
defense attorneys nor the government.
The events of the afternoon of May 30, however, do not stand in isolation.
The jury’s note on that date was the second such note from the jury. In response to
the first note, sent on May 29, the court gave the jury a modified Allen charge.
Additionally, the second note was not sent shortly after the jury began
deliberations, but on the third day of deliberations and the day after receiving the
modified Allen charge. Considered as a whole, the circumstances reveal that the
court’s decision was not an abrupt, precipitous response to a single note from the
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jury, but was a deliberate decision made subsequent to three days of deliberations,
a prior note declaring an inability to agree, and the jury’s prior receipt of a
modified Allen charge.
Subsequent to declaring the mistrial, the trial judge indicated that he was
“flying out of this district tomorrow without question.” The record also reveals,
however, that the trial judge had already altered his travel plans to accommodate
the trial. In addition, on the morning of May 30, the trial judge sent a note to the
jury asking when it wished to take lunch, an action inconsistent with an effort to
prematurely terminate jury deliberations. On balance, these events do not indicate
that the trial judge declared a mistrial to accommodate his travel plans, but
establish that the judge had changed his travel plans to accommodate the trial.
The record does not reveal whether, in response to the second note, the trial
judge considered alternatives to declaring a mistrial. As this limited record may
have partly resulted from the failure to hear from the parties, its paucity reinforces
the suggestion that the court did not exercise sound discretion. The record,
however, is not entirely barren as to the issue of alternatives. As noted above, the
court had already given the jury a modified Allen charge. Under such
circumstances, a trial judge’s decision to not give a second Allen charge cannot be
faulted. The only remaining alternative, to merely allow the jury to continue to
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deliberate, necessarily increased the “significant risk that a verdict may result from
pressures inherent in the situation rather than the considered judgment of all
jurors.” Avoiding such improper verdicts is a fundamental underpinning of the
great deference we accord to a trial judge’s finding that the jury is deadlocked and
to the order of mistrial.
On balance, we find that the district court erred in failing to consult with the
parties prior to declaring a mistrial after receiving the second note from the jury
stating its inability to reach a decision. While this error weighs in favor of a
finding that the trial judge did not exercise sound discretion, the remainder of the
record is to the contrary. Accordingly, we find that the trial judge exercised sound
discretion and defer to his finding of manifest necessity to declare a mistrial.
AFFIRMED.
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