UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4742
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RASHAD SALEEM MUHAMMAD,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:08-cr-01237-PMD-1)
Argued: September 21, 2012 Decided: November 30, 2012
Before SHEDD, KEENAN, and THACKER, Circuit Judges.
Affirmed in part and remanded by unpublished per curiam opinion.
ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Columbia, South Carolina, Nathan S. Williams, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
During Rashad Saleem Muhammad’s criminal trial, the
government produced for the first time a statement made by co-
defendant Damon Milford in March 2010 that tended to exculpate
Muhammad. Relying on the parties’ agreement that the statement
created a problem under Bruton v. United States, 391 U.S. 123
(1968), the district court granted a mistrial without Muhammad’s
consent. The court later denied Muhammad’s motion to dismiss the
indictment on double jeopardy grounds, reasoning that the
mistrial was manifestly necessary because there were no viable
alternatives. See Oregon v. Kennedy, 456 U.S. 667, 672 (1982)
(manifest necessity standard applies to double jeopardy
determination when mistrial was declared without consent).
Muhammad now appeals the denial of the motion to dismiss.
In Bruton, the Court “held that, in certain circumstances,
admission of a non-testifying co-defendant’s confession that
inculpates the defendant violates the Sixth Amendment’s
Confrontation Clause because the defendant has no opportunity
for cross-examination.” United States v. Lighty, 616 F.3d 321,
376 (4th Cir. 2010) (emphasis added). Thus, “[u]nless the
prosecutor wishes to hold separate trials or to use separate
juries or to abandon use of the confession, he must redact the
confession to reduce significantly or to eliminate the special
2
prejudice that the Bruton Court found.” Gray v. Maryland, 523
U.S. 185, 192 (1998).
At trial, the parties and the district court did not
discuss Bruton in detail. Muhammad appears to have been the
first party to raise Bruton, see J.A. 493, and he clearly
asserted Bruton as his basis for seeking a dismissal of the
indictment with prejudice, see J.A. 506. For its part, the
government acknowledged that Milford’s March 2010 statement
“certainly creates implications about Bruton,” J.A. 513-14, and
for this reason it conceded that a mistrial was appropriate and
consented to a mistrial, J.A. 515-16. In the order denying the
motion to dismiss, the court stated: “The government and
Defendants agreed that the statement allegedly made by Defendant
Damon Milford and summarized in the documents produced once the
trial had begun created a constitutional problem based upon
Bruton.” J.A. 592.
A district court has broad discretion in determining
whether manifest necessity requires declaration of a mistrial,
and we review that court’s invocation of the manifest necessity
doctrine and concomitant denial of a motion to dismiss an
indictment for abuse of this discretion. United States v. Sloan,
36 F.3d 386, 393 (4th Cir. 1994). Unquestionably, the district
court’s mistrial declaration was prompted by the parties’
arguments that Milford’s March 2010 statement creates a Bruton
3
problem. However, because Milford’s March 2010 statement tends
to exculpate, rather than inculpate, Muhammad, it actually does
not create a Bruton problem. Despite their contrary arguments
below, the parties agreed with this assessment at oral argument. 1
In light of the parties’ changed positions concerning
Bruton, we believe the prudent course is to remand this case to
the district court for reconsideration of the motion to dismiss.
See generally In re Matthews, 395 F.3d 477, 483 (4th Cir. 2005)
(remanding case for district court consideration of issue first
raised on appeal). On remand, the district court should
reevaluate whether manifest necessity existed to declare the
mistrial, bearing in mind that the government “must shoulder the
[heavy] burden of justifying the mistrial . . . to avoid the
double jeopardy bar.” Arizona v. Washington, 434 U.S. 497, 505
(1978). 2
AFFIRMED IN PART AND REMANDED
1
When trial began, Muhammad knew that Milford had given a
statement to law enforcement on August 21, 2008. Milford’s
August 2008 statement is contrary to his March 2010 statement in
that it tends to inculpate Muhammad. Although not addressed
below, the August 2008 statement may lead to a Bruton problem if
the government attempted to introduce it at trial. That
potential problem, if it exists at all, is independent of the
government’s untimely disclosure of the March 2010 statement.
2
On appeal, Muhammad challenges the district court’s finding
that the government did not commit intentional misconduct. We
discern no clear error in this finding. Therefore, we affirm the
court’s order denying the motion to dismiss to this extent.
4