United States v. Barbioni

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1555

                          UNITED STATES,

                            Appellee,

                                v.

                     JOSEPH EUGENE BARBIONI,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                               

                                           

                              Before

                     Torruella, Chief Judge,
                                                     

                Boudin and Stahl, Circuit Judges.
                                                          

                                           

     William Maselli for appellant.
                              
     F. Mark Terison, Assistant United States Attorney, with whom
                              
Jay  P. McCloskey,  United  States  Attorney,  and  Elizabeth  C.
                                                                           
Woodcock, Assistant  United States  Attorney, were  on brief  for
                  
appellee.

                                           

                          August 7, 1995
                                           


           TORRUELLA,  Chief  Judge.   Defendant-appellant  Joseph
                    TORRUELLA,  Chief  Judge.
                                            

Barbioni  appeals on double jeopardy grounds the district court's

denial of his motion to dismiss.  The district court had declared

a mistrial  after  the jury  announced  that it  was  deadlocked.

Finding no abuse of discretion, we affirm.

                            BACKGROUND
                                      BACKGROUND

          Appellant   Barbioni  was   indicted   and  tried   for

deliberately  making   false  statements  to  the  United  States

Department of Labor  Workers' Compensation Program, and  for mail

fraud, in violation of 18  U.S.C.    1001 and 1341, respectively.

After a  trial that lasted  almost four days, the  jury was given

instructions by the  district court and began  its deliberations.

After  approximately seven  hours, the  jury sent  a note  to the

district court, saying  that it could  not reach a verdict.   The

district court judge then brought  the jury back to the courtroom

and  gave it  some general  instructions,  such as  reminding the

jurors that the verdict must be unanimous.  The court then stated

to the jury  that it did not  intend to keep them  there "against

your will and beat a verdict out of you one way or the other, but

I want to  make one more effort  to attempt to reach  a unanimous

verdict if we can."  The court continued, "[I]f that's impossible

in  your collective  judgment, then  advise  me of  that fact  in

writing . . . and we'll respond accordingly."

          The jury then retired again.  After three more hours of

further deliberations,  the jury again  sent a note to  the court

saying that it could not reach  a unanimous decision.  The  judge

                               -2-


 then called counsel  for the government and  defense counsel into

chambers and explained that he was going to inquire of the jurors

individually whether they all agreed  that they could not reach a

verdict.  If  they all agreed, the court stated, it would declare

a  mistrial.   The defense  objected  to this  course of  action,

requesting that the jury be given more time to deliberate after a

weekend's rest.

          Nevertheless, the court polled the jurors  individually

in open court.   Each juror stated  that he or she  was satisfied

that the  jury was deadlocked,  and that further  instructions or

deliberations   were   not  likely   to  resolve   the  deadlock.

Accordingly, the district court declared a mistrial and dismissed

the jury over defense counsel's objections.

                             ANALYSIS
                                       ANALYSIS

          Barbioni  now claims that the district court abused its

discretion in declaring a mistrial, and that retrial is barred by

the Double Jeopardy Clause of  the United States Constitution.  A

decision  to  declare  a  mistrial  is  committed  to  the  sound

discretion of  the trial court,  Arizona v. Washington,  434 U.S.
                                                                

497, 506  (1978), and we  therefore review only  for an abuse  of

this discretion.  After carefully reviewing the record, we see no

such abuse here.

          While  it is  certainly  true that  a  defendant has  a

"valued  right  to  have  his  trial completed  by  a  particular

tribunal,"  Wade v. Hunter, 336 U.S. 684, 689 (1949),  this right
                                    

is  not absolute.   Rather,  it  is subject  to  the doctrine  of

                               -3-


 "manifest necessity."   United States v. Ram rez,  884 F.2d 1524,
                                                          

1528 (1st Cir.  1989) (citing United States v. P rez,  22 U.S. (9
                                                              

Wheat.) 579, 580  (1824).  Under this doctrine,  a district court

may declare a mistrial over  the defendant's objection only if it

determines that there is  a "manifest necessity" for a  mistrial,

or the ends of public justice would otherwise be defeated.   Id.;
                                                                         

see  also United  States v.  DiPietro, 936  F.2d 6,  9  (1st Cir.
                                               

1991).   Moreover,  a  district  court must  find,  based on  the

particular  circumstances surrounding  the trial  and the  jury's

deliberations, that there exists a "high degree" of necessity for

a mistrial before  making such a declaration.   Ram rez, 884 F.2d
                                                                 

at 1528-29 (citing Arizona v. Washington, 434 U.S. at 506).
                                                  

          Examining  the circumstances  of  the instant  case, we

think that  the district  court did not  abuse its  discretion in

finding "manifest necessity" for declaring a  mistrial.  The jury

deliberated for  almost ten  hours, after  which each  individual

juror unequivocally expressed the opinion that the jury could not

reach a unanimous decision.   The court polled the jurors on this

point with great care before concluding that further deliberation

would be  futile.1   Moreover, the trial  was a  relatively short
                    
                              

1  Barbioni also contends that the court should have instead sent
the  jurors  home  and  reconvened  them  for  deliberations  the
following Monday.  Under the circumstances, we cannot find  error
in  the court's  rejection of  this suggestion.   The  jurors had
unanimously declared to the court  that they did not believe that
further deliberations  would be  fruitful.   By disregarding  the
jurors  on this  point and  demanding  further deliberation,  the
court might  have risked  pressuring the  jurors into  abandoning
good faith opinions  merely for the  sake of reaching  unanimity.
We do not mean that the  district court was obliged to take  this
view, but it was a pertinent consideration.

                               -4-


 one,  and   the  legal   issues  at   stake  were   not  complex.

Nevertheless,  the jurors  could  not reach  a verdict  after ten

hours  of  deliberation.    We  think  that  these  circumstances

rationally permitted the district court to conclude that manifest

necessity justified the declaration of a mistrial.

          It is well settled  that an appeal  from a denial of  a

motion to  dismiss  following a  "hung  jury" does  not  normally

present  a valid  Double Jeopardy  claim.   Richardson v.  United
                                                                           

States, 468  U.S. 317, 324  (1984); United States v.  Porter, 807
                                                                      

F.2d 21, 22 (1st Cir. 1986),  cert. denied, 481 U.S. 1048 (1987).
                                                    

Given the  district court's sound  exercise of its  discretion in

declaring a mistrial, we see  no reason here to depart  from this

rule.    Accordingly,  the  district  court's  declaration  of  a

mistrial and denial of  Barbioni's motion to dismiss the  charges

are affirmed.2 
                      

                    
                              

2  Barbioni also contends on appeal that the district court erred
in its  modified Allen  instruction to  the jury.   See  Allen v.
                                                                        
United States, 164 U.S. 492 (1896).   At the time the charge  was
                       
given,  however,  defense  counsel raised  no  objections  to the
instruction.  Even when the district court had finished and asked
counsel if they had anything to add to the modified Allen charge,
                                                                   
defense counsel  stated, "No, your  Honor.  Thank you."   Because
Barbioni  did  not  object  to  the instruction,  and  raised  no
arguments or suggestions  when given the opportunity to  do so by
the district  court,  we deem  this  argument waived  on  appeal.
Windsor Mount Joy v. Giragosian,  53  F.3d   ,    (1st Cir. 1995)
                                         
(arguments  not  properly  raised  below  are  deemed  waived  on
appeal).

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