United States Court of Appeals
For the First Circuit
No. 05-1183
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT BROWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Dyk,* and Howard, Circuit Judges.
Robert C. Andrews for appellant.
Michael J. Conley, Attorney with whom Paula D. Silsby,
United States Attorney and F. Mark Terison, Senior Litigation
Counsel, were on brief, for appellee.
October 14, 2005
*
Of the United States Court of Appeals for the Federal
Circuit, sitting by designation.
HOWARD, Circuit Judge. Robert Brown appeals the district
court's refusal to dismiss his indictment on double jeopardy
grounds following a trial that ended in a hung jury. Brown
contends that, although the jury was unable to reach a unanimous
verdict, the court abused its discretion by declaring a mistrial
before it had explored all of the potential alternatives.
Accordingly, Brown argues, the government failed to establish the
"manifest necessity" of declaring a mistrial. We affirm.
I.
Brown was charged with a single count of distribution of
cocaine. See 21 U.S.C. § 841(a)(1). The government's case --
which primarily consisted of testimony from David Pease, a
confidential informant who testified that Brown had sold him the
cocaine, and Daniel Rousseau, a Special Agent of the Drug
Enforcement Administration who testified that Brown had confessed
to giving the cocaine to Pease -- was completed by early afternoon
on the trial's first day. On the morning of the second day, the
defense called Robert Yankowsky, who testified that it was he, not
Brown, who had unwittingly transferred an envelope containing the
cocaine to Pease. Closing arguments were presented that same
morning. The defense argued that the government's entire case
relied on Pease's testimony and that Pease, an admitted drug user
who was cooperating with the police in return for leniency in his
own criminal proceedings, was not a credible witness.
-2-
After receiving instructions, the jury retired to
deliberate early that afternoon. Four hours later, and after the
court had already received four notes from the jury concerning
testimony and evidence, the court received the following note from
the jury: "We are not close to a decision at this time and have
members that need to make calls for child care. We also would like
a sense of how long we will be required to deliberate prior to
breaking for the evening."1 After consulting with counsel, the
court instructed the jury to continue deliberations for at least
one more hour. An hour later, the jury sent a second note stating
that it was unable to reach a unanimous verdict and would like to
recess for the evening. The court granted the request.
Deliberations resumed the next morning, the third and
final day of the trial. At 10:29 a.m. the court received the first
note indicating that the jury might be deadlocked: "We are 11-1
and unable to move despite hours of work. Where do we go from
here?" The court elicited proposals from counsel. The government
requested an Allen charge, see Allen v. United States, 164 U.S.
492, 501 (1896) (upholding the practice of using a supplemental
jury instruction to help a deadlocked jury reach unanimity), but
defense counsel expressed concern that such an instruction might
exert undue pressure on the minority juror. The court agreed and
sent a note simply urging the jury to continue deliberations. An
1
All of the jury's notes were signed by the foreperson.
-3-
hour later, the jury requested and obtained a read-back of Pease's
and Yankowsky's testimony. At 2:11 p.m., the jury sent a second
note expressing deadlock: "We have one juror indicating a complete
unwillingness, for any reason, to change his vote. Where do we go
from here?" Again the court sought suggestions from counsel, and
again the government requested an Allen charge. This time defense
counsel concurred with the government's request and the court
delivered a modified Allen charge.
An hour-and-a-half after deliberations had resumed, the
court, concerned by the lack of progress and a worsening snow
storm, summoned counsel to discuss the next course of action. The
government requested that the court do nothing for at least another
hour. Defense counsel announced concern about the weather and that
the jury had deliberated for a long time. He suggested that the
court inquire whether any progress was being made. The court
agreed and sent a note to the jury in accord with defense counsel's
request.
At 4:04 p.m., the jury responded with a third note
expressing impasse: "The juror who is not in agreement has advised
we are not making any headway in convincing him of our position."
The court turned to counsel, and the government suggested for the
first time that a mistrial might be appropriate. Defense counsel
argued that for a mistrial to be appropriate "we need to get the
jury to come to a position where it says that it is, in fact,
-4-
hopeless." Agreeing with defense counsel, the court suggested
sending a note asking whether there was "any chance of reaching a
verdict in this case?" Defense counsel endorsed the court's
proposed note, and it was sent to the jury.
The response, the final note from the jury, read: "As I
do not believe the juror not in agreement is basing his decision on
evidence, but on his own 'issues,' a verdict is not likely." When
the court asked defense counsel whether he had any other ideas,
counsel requested an instruction specifically aimed at the holdout
juror "requiring him to view the evidence." The following colloquy
ensued:
THE COURT: I'm not going to do that.
I'm not going to instruct a juror who is
holding out -- that's undue force on a juror,
I believe. I don't think that's appropriate.
Everybody has a right, obviously, to
view the evidence. That's what I told them in
the Allen charge. To point out to one juror
that they have to do that, I don't think it's
appropriate.
Another alternative?
[DEFENSE COUNSEL]: I have no other
alternative. I don't want a mistrial in this
case.
THE COURT: And what do you suggest?
[DEFENSE COUNSEL]: If you can't come to
a verdict, the only other option is a motion
to dismiss it or acquittal, or for you to
declare a mistrial.
I don't want to agree to a mistrial.
Obviously if it's hopeless, the jury has
indicated it is, I guess the final decision is
up to you.
-5-
THE COURT: Alright. Government?
* * *
[GOVERNMENT COUNSEL]: I think, unless
the Court feels that questioning this
particular juror would be helpful --
THE COURT: I am concerned about doing
that. I think that puts a lot of pressure on
one juror to change an opinion that juror may
honestly hold, especially when the Judge is
squeezing that juror to look at things
differently. I know what that jury is
thinking, and the Judge's forcing me to change
my mind, and I don't think that's right. I
won't.
[GOVERNMENT COUNSEL]: No other
suggestion. I would defer to the Court.
THE COURT: I'm going to declare a
mistrial on this. I believe that the jury is
hopelessly deadlocked here. It's plain as
day, as the notes that we've received.
Nothing has happened for a considerable period
of time in terms of any progress.
The situation is simply that one person
has a strongly held opinion, and they have
indicated, as in the last note, they are not
going to move and there is no need to continue
this.
So I believe that the jury is
deadlocked, and I believe it's manifest that a
mistrial be declared, and I'm going to declare
a mistrial in this case and reschedule this
for trial, another trial.
Before declaring a mistrial, the court called the jury
back to the courtroom. The court then asked, first of the
foreperson, and then of the jury collectively, whether there was a
deadlock. When the jurors answered affirmatively, the court
declared a mistrial, excused the jury, and set a new trial date.
-6-
Brown filed a motion to dismiss shortly thereafter,
arguing that the court had abused its discretion by hastily
declaring a mistrial, by not engaging in the analysis required for
a motion for judgment of acquittal, and by failing "to inquire of
the jurors to determine their positions on guilt or innocence." At
oral argument on the motion to dismiss, Brown additionally argued
that the court could have dismissed the holdout juror for good
cause and then entered the verdict of the eleven-member jury. The
court denied the motion for substantially the same reasons that it
declared the mistrial. This interlocutory appeal followed. See
United States v. Keene, 287 F.3d 229, 232 (1st Cir. 2002) (stating
that an interlocutory appeal is permitted when a defendant claims
that further proceedings in the trial court constitute double
jeopardy).
II.
The Fifth Amendment to the Constitution provides that no
person shall be "twice put in jeopardy of life or limb" for the
same offense. Among other things, the double jeopardy clause
protects defendants against "serial attempts by the government to
convict a defendant on a single charge." Id. Without such
protection, a defendant could be subjected to multiple trials,
increasing the expense and embarrassment of the defendant, and
enhancing the risk of convicting an innocent person. Id. In light
of these concerns, "courts have construed the Double Jeopardy
-7-
Clause to bar retrial of a defendant after a mistrial ordered over
the defendant's objection unless the mistrial was occasioned by
manifest necessity." United States v. McIntosh, 380 F.3d 548, 553
(1st Cir. 2004) (footnote omitted). Although the government bears
the burden of establishing manifest necessity, "a hung jury is the
paradigmatic example of manifest necessity." Id.
When a motion to dismiss on double jeopardy grounds
follows from a district court's declaration of a mistrial, we
review the court's manifest necessity determination for an abuse of
discretion. Keene, 287 F.3d at 233 (citing Arizona v. Washington,
434 U.S. 497, 514 (1978)). The court's findings of fact are
reviewed for clear error, and legal determinations are reviewed de
novo. McIntosh, 380 F.3d at 553-54. While our review of the
manifest necessity determination is case-specific and cannot be
discharged by resort to a mechanical checklist, see id. at 554, we
have identified three factors that are particularly relevant: (1)
whether the court provided counsel an opportunity to be heard; (2)
whether the court considered alternatives to a mistrial; and (3)
whether the court's decision was made after adequate reflection.
United States v. Simonetti, 998 F.2d 39, 41 (1st Cir. 1993). See
also Fed. R. Crim. P. 26.3 ("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."). The
-8-
overarching question on appeal is "whether the district judge's
declaration of a mistrial was reasonably necessary under all the
circumstances." Keene, 287 F.3d at 234.
The record demonstrates that the district court was
careful to satisfy each of the Simonetti factors before declaring
a mistrial. Throughout the course of the jury's deliberations, and
following the receipt of each note from the jury, the court sought
suggestions from counsel for both sides. Not only did the court
consider alternatives to a mistrial, but, with one exception, the
court always acceded to defense counsel's requests: first
withholding an Allen charge, then delivering it in modified form,
and finally sending a pair of notes to the jury to confirm that
there was no hope of a verdict. Only defense counsel's suggestion
that the holdout juror be singled out for an additional instruction
was rejected by the court, and even then the court gave defense
counsel an opportunity to suggest an alternative.
The record also reflects the court's careful
consideration of the situation before it declared a mistrial. The
court was aware that the jury had deliberated for 13 hours in an
uncomplicated case that essentially came down to choosing which of
the witnesses to believe. The straightforward nature of the case,
and the fact that the jury had communicated its deadlock on five
occasions, including once in open court, support the conclusion
that the court withheld the declaration of a mistrial until it was
-9-
evident that a unanimous verdict was not forthcoming. See Keene,
287 F.3d at 235 (no abuse of discretion in declaring a mistrial
given the length of deliberations in comparison to the brevity of
the trial and the simplicity of the issues, the fact that a
modified Allen charge had proven unsuccessful, and "the
increasingly adamant manner in which the jurors announced that they
were deadlocked").
Where the Simonetti factors are satisfied, "we will
reverse only if the district court applied an incorrect legal
principle or made a meaningful error in judgment" in deciding to
declare a mistrial. McIntosh, 380 F.3d at 554. Brown argues that
four errors precipitated the district court's erroneous mistrial
declaration: (1) placing the burden to establish the non-existence
of manifest necessity on the defendant, (2) failing to examine the
evidence under the judgment of acquittal standard, (3) declining
the defense request to instruct the holdout juror to consider the
evidence, and (4) refusing to voir dire the holdout juror to
determine the basis of his position.2 Brown focuses predominantly
2
We may quickly dispose of Brown's first two contentions. As
to the first, suffice it to say that permitting defense counsel the
opportunity to offer alternatives to a mistrial is not tantamount
to placing the burden on defense counsel to prove the absence of
manifest necessity. Such consultations are required by the Federal
Rules of Criminal Procedure and are intended to "reduce the
possibility of an erroneously ordered mistrial" to the "benefit
[of] both the prosecution and the defense." Fed. R. Crim. P. 26.3
advisory committee's note 1993.
The contention that the court erred by failing to analyze the
evidence under the standard for a judgment of acquittal, after
-10-
on the third and fourth alleged errors. He asserts that, when a
court is faced with a choice between a defense request for a second
jury instruction or a mistrial, the court must issue the charge in
the case of an 11 to 1 jury panel. Brown further argues that a
voir dire of the lone holdout juror could have revealed that the
juror was not deliberating in good faith. If that were the case,
the court could have dismissed the juror for cause and allowed the
11 remaining jurors to return a verdict. See Fed. R. Crim. P.
23(b)(3); United States v. Barone, 114 F.3d 1284, 1309 (1st Cir.
1997) (upholding an 11-juror verdict where one juror had been
dismissed for cause). The court should have been aware of this
potential solution, Brown argues, because the final jury note
suggested that the holdout juror's vote was based on "his own
issues," not on the evidence. Thus, Brown concludes, a potentially
viable alternative to mistrial existed, and the court abused its
discretion by not fully exploring that avenue. See United States
v. Toribio-Lugo, 376 F.3d 33, 39 (1st Cir. 2004) (no manifest
necessity where there was a viable alternative to mistrial that the
district court failed to adequately explore).
defense counsel had suggested dismissal as an alternative to a
mistrial, also fails. Although the court disregarded defense
counsel's request without explanation, it is readily apparent why:
the government had presented ample evidence to support a conviction
under 21 U.S.C. § 841(a)(1). Pease's testimony, if credited, made
out the essential elements of the crime: that Brown had "knowingly
and intentionally transferred cocaine from himself to someone
else." United States v. Piper, 298 F.3d 47, 59 (1st Cir. 2002).
-11-
Our resolution of these two arguments is controlled by
the deferential standard of review. Because of the delicacy
inherent in dealing with a holdout juror, and because the cold
record is a poor substitute for the district court's on-the-spot
perceptions, we will defer to the court's determination so long as
it is reasonable.3 See McIntosh, 380 F.3d at 555-56. Here, aware
that the jury was deadlocked by a single juror, the court was
properly cautious in its employment of deadlock-breaking
procedures, see McIntosh, 380 F.3d at 556 ("[T]he wisest course
when a [holdout] juror's views are known is to proceed
cautiously."); United States v. Hotz, 620 F.2d 5, 7 (1st Cir. 1980)
(noting that a court must avoid putting pressure on the jury), and
reasonably concluded that any further instruction, particularly one
directed solely to the holdout, would have been unduly coercive,
see Keene, 287 F.3d at 235 (giving a second modified Allen charge
is "an extraordinary measure . . . that should be shunned absent
special circumstances").
The argument that the holdout juror should have been
questioned was not advanced by Brown before the district court.
3
We reject Brown's argument that a court must accede to a
defense request for a second modified Allen charge in a situation
where a jury is deadlocked 11 to 1. Cf. Keene, 287 F.3d at 235
(although the district court is required to "consider" the
suggestions of counsel, it is not required to "employ a particular
alternative upon demand"). In our view, the appropriateness of
deciding to give such a charge must be assessed on a case-by-case
basis.
-12-
Indeed, only the government suggested such questioning. Defense
counsel did not concur with the government's request, object when
the court denied the government's request, or attempt to revive the
request prior to the court's declaration of a mistrial. We thus
face an arguable forfeiture of that claim.4 See McIntosh, 380 F.3d
at 555. Regardless, the claim fails.
Here again, the court believed that singling out the lone
holdout for questioning would have been unduly coercive. This
conclusion was not unreasonable, notwithstanding the note from the
jury foreperson indicating her suspicion that the holdout juror's
position was based on unspecified personal "issues." The district
court was concerned that a juror, summoned individually for a
colloquy with the judge, might feel pressured to change his
position, and was entitled to prioritize the avoidance of coercion
over an inquiry into the dynamic giving rise to the foreperson's
cryptic note. We cannot say that the court's decision was an abuse
of discretion. Cf. id. at 557 (finding that the district court
acted within its discretion in "declining to probe further into [a
holdout juror's] views").
III.
For the foregoing reasons, we affirm the district court's
denial of Brown's motion to dismiss.
4
Indeed, as the holdout's position was unknown, defense
counsel's silence on this issue may well have been intentional.
-13-