FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50191
Plaintiff-Appellant, D.C. No.
v. 2:08-cr-01299-
JOHN WILHELM CAROTHERS, CJC-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
October 5, 2010—Pasadena, California
Filed January 24, 2011
Before: Raymond C. Fisher and Jay S. Bybee,
Circuit Judges, and Lyle E. Strom, District Judge.*
Opinion by Judge Fisher
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
1313
1316 UNITED STATES v. CAROTHERS
COUNSEL
André Birotte Jr., United States Attorney, Christine C. Ewell,
Assistant United States Attorney, and Daniel B. Levin
(argued), Assistant United States Attorney, Los Angeles, Cali-
fornia, for the plaintiff-appellant.
Sean K. Kennedy, Federal Public Defender, and James H.
Locklin (argued), Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellee.
OPINION
FISHER, Circuit Judge:
John Wilhelm Carothers was charged with possession of
methamphetamine with intent to distribute. Although Caro-
thers essentially conceded at trial that he possessed metham-
phetamine at the time he was arrested, he insisted that he had
no intent to distribute it. Perhaps because of Carothers’ con-
UNITED STATES v. CAROTHERS 1317
cession, his trial centered on the contested element of the
charged offense — the intent to distribute.
At Carothers’ request, the district court instructed the jury
on the lesser included offense of simple possession as well as
on possession with intent to distribute. The court also granted
Carothers’ request that the jury be instructed it could convict
him of the lesser included offense if it hung on the greater
offense. As it turned out, the jury did deadlock on possession
with intent to distribute, although it simultaneously
announced it had reached a unanimous decision on simple
possession. But because of a problem with the verdict form —
a problem neither the parties nor the district court fully identi-
fied until it was too late — the jury was unable to report its
verdict on the lesser included offense. In light of the jury’s
deadlock on the greater offense, and in spite of its unanimous
decision on the lesser included, the district court declared a
mistrial not only on the greater offense but also on the lesser
included, a decision both the court and the government later
recognized as erroneous. Realizing its error, the district court
dismissed the indictment. It concluded that in light of the
improperly declared mistrial on simple possession, Carothers’
retrial on possession with intent to distribute was foreclosed
by (1) the Double Jeopardy Clause, (2) United States v. Jack-
son, 726 F.2d 1466 (9th Cir. 1984) (per curiam), and (3) prac-
tical problems that might arise on retrial. The government
appeals from the order dismissing the indictment. We reverse
and remand.
BACKGROUND
Carothers was indicted in October 2008 for possession of
methamphetamine with intent to distribute. The government
argued at trial that “pay-owe sheets” — transaction records
commonly kept by drug dealers — that were found in Caro-
thers’ possession along with about 70 grams of methamphet-
amine demonstrated his intent to distribute the drugs. The
government also presented evidence that Carothers had previ-
1318 UNITED STATES v. CAROTHERS
ously been arrested for drug-related activities in 2003 and
2004. Carothers essentially conceded possession of metham-
phetamine, admitting that the officers who searched him
“found some methamphetamine in his pocket,” but contended
he had no intent to distribute it. He maintained instead that he
was a longtime drug addict who decided to “stock up” on
methamphetamine.
Before trial, the court agreed to give Carothers a jury
instruction on the lesser included offense of simple possession
in addition to the charged offense of possession with intent to
distribute. The parties agreed to the following instruction, the
relevant portion of which is italicized below:
The crime of possession of methamphetamine with
intent to distribute includes the lesser crime of sim-
ple possession. If (1) any of you are not convinced
beyond a reasonable doubt that the defendant is
guilty of possession of methamphetamine with intent
to distribute; and (2) all of you are convinced
beyond a reasonable doubt that the defendant is
guilty of the lesser crime of simple possession, you
may find the defendant guilty of simple possession.
This instruction allowed the jury to convict Carothers of sim-
ple possession if any of the jurors did not believe the govern-
ment had carried its burden on possession with intent to
distribute. Thus if the jury deadlocked on the greater offense,
the instruction permitted the jury to turn to the lesser
included. As was his right under Jackson, Carothers elected
this form of instruction over one that would have required the
jurors to acquit him of the greater offense before moving to
the lesser included.
Unfortunately, the verdict form was inconsistent with the
jury instruction. The verdict form, the relevant portions of
which are italicized below, directed the jury as follows:
UNITED STATES v. CAROTHERS 1319
1. . . . If you find defendant John Wilhelm Carothers
not guilty as charged [in the indictment] . . . proceed
directly to paragraph 3 below.
....
3. We, the jury in the above-entitled action, having
found the defendant John Wilhelm Carothers not
guilty of the offense — possession of methamphet-
amine with the intent to distribute — as charged in
the indictment, unanimously find the defendant John
Wilhelm Carothers NOT GUILTY or GUILTY (cir-
cle one) of the crime of simple possession of
methamphetamine.
Thus the verdict form, unlike the instructions, permitted the
jury to turn to the lesser included offense only after acquitting
Carothers of the greater offense. Carothers’ counsel recog-
nized the drafting problem in paragraph 1 and asked the court
to modify that paragraph to conform to the jury instructions,
but the court refused to change the verdict form. Even if the
court had agreed to amend the form as Carothers proposed,
however, the inconsistency in paragraph 3 of the form would
have remained.
At the end of the three-day trial, the jury reported that it
was “unanimous on the charge of possession” but “not unani-
mous on the possession with the intent to distribute.” The
court instructed the jury to continue deliberating “as long as
one or more of you believe it would be beneficial in reaching
a verdict.” After further deliberation, however, the jury con-
firmed that it had “reached a unanimous verdict, on posses-
sion, but are hung on the intent to distribute.”
The court recalled the jury and declared a mistrial on both
charges, with the government’s support but over Carothers’
objection. Nonetheless, when Carothers then moved to dis-
miss the indictment as barred by double jeopardy, the court
1320 UNITED STATES v. CAROTHERS
granted Carothers’ motion. The court by then realized it had
improperly declared a mistrial on simple possession, but hav-
ing done so concluded that the Double Jeopardy Clause
barred retrial on the greater offense as well as the lesser
included. See United States v. Carothers, 697 F. Supp. 2d
1160, 1161 (C.D. Cal. 2010). The government appeals. We
reverse and remand.
STANDARD OF REVIEW
We review de novo the district court’s dismissal of the
indictment on the basis of double jeopardy. See United States
v. Bernhardt, 831 F.2d 181, 182 (9th Cir. 1987) (“The dis-
missal of an indictment on double jeopardy grounds is a ques-
tion of law that we review de novo.”).
JURISDICTION
We have jurisdiction under 18 U.S.C. § 3731, which pro-
vides that “[i]n a criminal case an appeal by the United States
shall lie to a court of appeals from a decision, judgment, or
order of a district court dismissing an indictment . . . except
that no appeal shall lie where the double jeopardy clause of
the United States Constitution prohibits further prosecution.”1
DISCUSSION
[1] We begin by summarizing what is not in dispute. First,
1
Whereas the government asserts that § 3731 confers jurisdiction to
consider this appeal, Carothers contends that § 3731 requires us to reach
the merits of his double jeopardy claim before taking jurisdiction. Under
Carothers’ reading of the statute, the appeal should be dismissed, rather
than the judgment affirmed, if the district court’s decision to dismiss the
indictment on the basis of double jeopardy was proper. Because we con-
clude that the Double Jeopardy Clause does not preclude Carothers’
retrial, we need not decide which reading of § 3731 is correct. Either way,
§ 3731 provides jurisdiction to consider the merits of the double jeopardy
issue.
UNITED STATES v. CAROTHERS 1321
the district court properly declared a mistrial on possession
with intent to distribute after the jury deadlocked on that
charge. See Richardson v. United States, 468 U.S. 317, 323-
24 (1984) (explaining that the Double Jeopardy Clause allows
retrial following a jury’s genuine deadlock). Thus, unless an
exception applies, the Double Jeopardy Clause permits retrial
on the greater offense.2 Second, the mistrial on simple posses-
sion was improper. When the jury announced it had reached
a unanimous decision on simple possession, the district court
could have allowed the jury to enter a verdict on that charge
by, for example, providing the jury with a corrected verdict
form or allowing the jury to report its findings on an inter-
lineated form. See United States v. Jefferson, 566 F.3d 928,
936 (9th Cir. 2009) (describing how a jury that found the
defendant guilty of the lesser included offense after deadlock-
ing on the greater rendered its verdict by crossing out a sec-
tion of the verdict form that was inconsistent with the jury
instructions). Third, because the district court declared a mis-
trial on simple possession when there was no manifest neces-
sity to do so, the Double Jeopardy Clause bars retrial on that
charge. See Arizona v. Washington, 434 U.S. 497, 505 (1978)
(stating that “manifest necessity” for a mistrial is required if
the prosecution “is to avoid the double jeopardy bar”); United
States v. Bonas, 344 F.3d 945, 951 (9th Cir. 2003) (holding
that the government is “precluded from retrying the defendant
after an improper mistrial”).
The parties dispute only whether the improperly declared
mistrial on simple possession creates an exception to the gen-
eral rule permitting retrial on possession with intent to distrib-
2
This conclusion is not affected by the jury’s having reached a unani-
mous decision on the lesser included offense. See United States v. Jeffer-
son, 566 F.3d 928, 935-36 (9th Cir. 2009) (allowing retrial on the greater
offense after the jury deadlocked on that charge but convicted the defen-
dant of a lesser included offense); United States v. Jose, 425 F.3d 1237,
1242-43 (9th Cir. 2005) (holding that final convictions on lesser included
offenses, left undisturbed on appeal, did not preclude retrial on the greater
offense).
1322 UNITED STATES v. CAROTHERS
ute. We conclude that it does not. Neither the Double
Jeopardy Clause nor our decision in Jackson bars retrial in
this case.
I. Double Jeopardy
The government contends the Double Jeopardy Clause per-
mits retrial on possession with intent to distribute notwith-
standing the improper mistrial on simple possession.
Carothers counters that the improper mistrial is “the equiva-
lent of an acquittal” on simple possession, and that it therefore
precludes retrial on possession with intent to distribute just as
an actual acquittal would. We hold, however, that the
improper mistrial on simple possession does not have the
legal effect of an acquittal on that charge.
[2] We agree with Carothers that an actual acquittal on
simple possession would preclude retrial on possession with
intent to distribute, because an acquittal on the lesser charge
negates an element of the greater. See Yeager v. United States,
129 S. Ct. 2360, 2367-68 (2009) (holding that acquittals on
fraud charges barred retrial on insider trading charges under
the issue preclusion aspect of the Double Jeopardy Clause,
because the acquittals established that the jury found against
the prosecution on predicate facts relevant to both offenses).
We do not agree, however, that the erroneous mistrial on sim-
ple possession has the issue-preclusive effect of an acquittal.
“[T]he Double Jeopardy Clause precludes the Government
from relitigating any issue that was necessarily decided by a
jury’s acquittal in a prior trial,” given “ ‘all the circumstances
of the proceedings.’ ” Id. at 2366-67 (quoting Ashe v. Swen-
son, 397 U.S. 436, 444 (1970)) (emphasis added). Here, the
jury was not permitted to report any of its findings, so there
is no way to know what it “necessarily decided.” The mistrial
on simple possession therefore has no issue-preclusive effect
and does not bar retrial on possession with intent to distribute.
We are not persuaded otherwise by Carothers’ citation of
the Supreme Court’s observation, in Selvester v. United
UNITED STATES v. CAROTHERS 1323
States, 170 U.S. 262, 270 (1898), that “[improper] discharge
[of a jury] would be equivalent to an acquittal of the particular
charge for which the accused was tried, since it would bar a
subsequent prosecution.” An improperly declared mistrial is
like an acquittal only in that both bar retrial on the offense at
issue. Selvester — decided long before the Supreme Court
explained the relationship between issue preclusion and dou-
ble jeopardy in Ashe — does not hold that an improperly
declared mistrial has the issue-preclusive effect of an acquit-
tal. Thus, in this case, the improper mistrial does not represent
a preclusive finding against the prosecution on simple posses-
sion. Cf. Ashe, 397 U.S. at 446 (holding that when the only
issue at the first robbery trial was whether the defendant was
one of the robbers, the jury’s acquittal of the defendant of rob-
bing one victim meant it necessarily decided that the defen-
dant did not participate in the robbery, so double jeopardy
barred prosecution of the defendant for robbing a different
victim on the same occasion).
[3] Carothers also argues that even if the improper mistrial
is not accorded the issue-preclusive effect of an acquittal,
retrial should nonetheless be barred to penalize the govern-
ment for having supported the mistrial. As Carothers correctly
points out, the government bore the burden of justifying the
mistrial by meeting the manifest necessity standard. See
Washington, 434 U.S. at 505. The government concedes it did
not satisfy that burden and is therefore precluded from retry-
ing Carothers on simple possession. But even Carothers does
not argue that the government’s support for the improper mis-
trial stemmed from anything more than a simple mistake of
law. Absent signs of more serious prosecutorial error, we
decline to penalize the government by barring retrial on the
greater offense when the Double Jeopardy Clause would oth-
erwise permit it. Cf. Oregon v. Kennedy, 456 U.S. 667, 675-
76 (1982) (“Prosecutorial conduct that might be viewed as
harassment or overreaching, even if sufficient to justify a mis-
trial on defendant’s motion . . . does not bar retrial absent
intent on the part of the prosecutor to subvert the protections
1324 UNITED STATES v. CAROTHERS
afforded by the Double Jeopardy Clause.”). We therefore hold
that the Double Jeopardy Clause does not prohibit the govern-
ment from retrying Carothers for possession of methamphet-
amine with intent to distribute.
II. Effect of United States v. Jackson
[4] The district court’s decision to dismiss the indictment
was also based on its concern for the integrity of Carothers’
right, under United States v. Jackson, 726 F.2d 1466, 1469-70
(9th Cir. 1984) (per curiam), to have the jury instructed to
consider the lesser included offense if unable to reach a ver-
dict on the greater offense. The court concluded that when the
defendant has requested such an instruction, allowing retrial
on the greater offense after the jury comes to a unanimous
decision on the lesser included would render Jackson “com-
pletely pointless.” Carothers, 697 F. Supp. 2d at 1164. We do
not agree.
The defendant in Jackson requested that the district court
instruct the jury “to consider the lesser-included offense if
unable after reasonable effort to reach a verdict on the greater
offense” rather than instructing it to consider the lesser
included only after first acquitting the defendant of the greater
offense. Jackson, 726 F.2d at 1469. We held that “although
either formulation may be employed if the defendant
expresses no choice, it is error to reject the form timely
requested by defendant.” Id. Our conclusion was prompted by
a concern that an “acquit first” instruction might deprive the
defendant of “ ‘the full benefit of the reasonable-doubt stan-
dard’ ” by causing “jurors harboring a doubt as to defendant’s
guilt of the greater offense but at the same time convinced
that defendant had committed some offense . . .wrongly [to]
yield to the majority and vote to convict of the greater
offense.” Id. at 1470 (quoting Beck v. Alabama, 447 U.S. 625,
634 (1980)).
[5] In this case, the district court concluded that a defen-
dant who has exercised his Jackson right cannot be retried
UNITED STATES v. CAROTHERS 1325
after the jury signals it has reached a unanimous decision on
the lesser included, as it did here. The court reasoned that
such a retrial would strip all advantage from the “unable to
agree” instruction. See Carothers, 697 F. Supp. 2d at 1164.
But Jackson does not entitle the defendant to avoid the ordi-
nary double jeopardy consequences of deadlock on the greater
offense. Regardless of whether he is later retried, a defendant
who has requested a Jackson instruction will still have been
able to escape an unfair conviction on the greater offense in
the first proceeding by having provided doubtful jurors with
a lesser included alternative. Thus the rule in Jackson does
not alter our conclusion that Carothers may be retried on pos-
session with intent to distribute.
III. Practical Concerns
[6] The district court also expressed concern that a retrial
on possession with intent to distribute would present intracta-
ble practical problems, including the potential tradeoff Caro-
thers might face on retrial between “his right to the lesser-
included offense instruction and his right not to be placed in
double jeopardy.”3 Carothers, 697 F. Supp. 2d at 1165. In the
3
The other practical concerns raised by the district court stem from its
erroneous assumption that the jury convicted Carothers of simple posses-
sion. The court wondered, for example, how a district court should “treat
the conviction of the lesser-included offense during the retrial of the
greater offense.” Carothers, 697 F. Supp. 2d at 1165. There was no con-
viction on the lesser included offense here, however, because the district
court declared a mistrial on that count. We therefore need not decide how
a final conviction on a lesser included offense would be treated for eviden-
tiary purposes during retrial on the greater offense. Cf. United States v.
Jose, 425 F.3d 1237, 1247-48 (9th Cir. 2005) (discussing the practical
implications of retrial on greater offenses when the defendants were previ-
ously convicted of lesser included offenses).
The district court also worried that “the integrity of the justice system”
might be undermined if the jury finds Carothers not guilty of simple pos-
session at the second trial after apparently reaching the opposite conclu-
sion in the first proceeding. Carothers, 697 F. Supp. 2d at 1166. But this
concern, like the first, flows from the court’s assumption that Carothers
was convicted of simple possession at the first trial. He was not.
1326 UNITED STATES v. CAROTHERS
district court, Carothers maintained that if he is retried he will
request that the jury again be instructed on simple possession.
He argues that retrial under these circumstances would violate
his double jeopardy right to avoid a second trial on simple
possession, however, and urges that we “avoid[ ] this dilem-
ma” by barring retrial altogether. The government acknowl-
edges this potential tension and suggests that on retrial
Carothers be allowed to request and receive the lesser
included offense instruction, but that “any guilty verdict that
might occur on the lesser offense . . . not result in a judgment
of conviction.” Under the government’s proposal, Carothers’
second jury would be instructed on simple possession without
being told that a guilty verdict on that charge would have no
legal effect.
[7] In Spaziano v. Florida, 468 U.S. 447 (1984), however,
the Supreme Court rejected a similar proposal. There, the
defendant was tried for first degree murder, a capital offense.
He wanted the trial court to instruct the jury on several lesser
included noncapital homicide offenses, but the statute of limi-
tations for the noncapital offenses had already expired. The
Court held that the trial court did not err in requiring Spaziano
to waive his statute of limitations defense if he was to receive
the lesser included offense instruction. See id. at 456-57. Rec-
ognizing that a lesser included instruction may reduce the risk
of irrational or erroneous convictions, the Court nevertheless
reasoned that “[r]equiring that the jury be instructed on lesser
included offenses for which the defendant may not be con-
victed . . . would simply introduce another type of distortion
into the factfinding process.” Id. at 455-56. Under Spaziano,
there is no requirement “that the jury be tricked into believing
that it has a choice of crimes for which to find the defendant
guilty, if in reality there is no choice.” Id. at 456. Thus, on
retrial, the district court may require that Carothers waive his
right not to be retried on simple possession if he is to receive
a jury instruction on that offense.4
4
We express no opinion as to whether the district court may, on retrial,
follow the course the government suggests by instructing the jury on the
UNITED STATES v. CAROTHERS 1327
This approach, which would allow Carothers to take advan-
tage of his right to a lesser included offense instruction under
Federal Rule of Criminal Procedure 31(c), would not force an
unacceptable choice between constitutional rights, as Caro-
thers contends. As a threshold matter, is it not clear that Caro-
thers is constitutionally entitled to a lesser included
instruction in this noncapital case. See Howell v. Mississippi,
543 U.S. 440, 445 (2005) (per curiam) (asserting that a state
rule on lesser included offense instructions “unlike [the con-
stitutional right to a lesser included offense instruction articu-
lated in] Beck . . . applies in noncapital cases”); United States
v. Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009)
(“[W]e have not resolved whether there is a Constitutional
right to a lesser-included instruction in noncapital cases.”).
Spaziano illustrates that a defendant may be asked to choose
between a constitutional entitlement and another legal right
not of constitutional dimension.
[8] Moreover, it is well established that a defendant may
knowingly and voluntarily relinquish a double jeopardy
defense, as Carothers may be asked to do on retrial. See
Ricketts v. Adamson, 483 U.S. 1, 9-10 (1987); United States
v. Hernandez-Guardado, 228 F.3d 1017, 1028 (9th Cir. 2000)
(“The right against double jeopardy is undoubtedly subject to
waiver by a defendant.”); United States v. Zavala, 839 F.2d
523, 528 (9th Cir. 1988) (per curiam) (holding that a defen-
dant who pled guilty to conspiracy to import and distribute
cocaine and simultaneously explicitly agreed to a bench trial
on continuing criminal enterprise was not entitled to raise a
double jeopardy defense); cf. Menna v. New York, 423 U.S.
lesser included offense without any waiver and without informing the jury
that any conviction on that offense would be invalid. Although Spaziano
suggests that inviting a verdict on a charge on which there can be no con-
viction is disfavored, Spaziano holds only that it is not error to condition
the lesser included offense instruction on the defendant’s waiving his affir-
mative defense on the lesser included. Spaziano, 468 U.S. at 456-57.
1328 UNITED STATES v. CAROTHERS
61, 62 n.2 (1975) (per curiam) (“We do not hold that a double
jeopardy claim may never be waived.”).
[9] We therefore conclude that, under Spaziano, the district
court may require Carothers to forgo the double jeopardy bar
against retrial on simple possession if he requests a jury
instruction on that offense. Accordingly, potential practical
difficulties do not justify barring Carothers’ retrial.
IV. Conclusion
We hold that neither the Double Jeopardy Clause nor Caro-
thers’ decision to elect a Jackson instruction poses a barrier
to Carothers’ retrial for possession with intent to distribute.
Carothers may therefore be retried on that charge. Accord-
ingly, we reverse the order of the district court and remand for
retrial.
REVERSED and REMANDED.