United States v. Ackerly, 323 F. Supp. 3d 187

Background

Defendants Gottcent, Garske, and Sedlak move to dismiss the indictment under the Double Jeopardy Clause after a mistrial was declared late in a month-long jury trial.
A juror was excused after trial began, leaving eleven jurors; Federal Rule of Criminal Procedure 23 requires unanimous party consent to proceed with fewer than twelve jurors before verdict.
The government refused to consent to proceed to verdict with eleven jurors unless all co-defendants consented; three defendants consented, one (Ackerly) did not. The trial judge declared a mistrial.
The three moving defendants argue the government’s withholding of consent effectively caused the mistrial and thus retrial is barred by double jeopardy.
The government contends it lawfully exercised its Rule 23 right to withhold consent and acted without bad faith or improper motive. The court found the government’s decision was lawful under the Rule but nonetheless exposed it to double jeopardy constraints.
Court concludes retrial as to the three consenting defendants would violate the Fifth Amendment and dismisses the indictment with prejudice as to them; Ackerly will be retried separately.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government’s refusal to consent to proceed with 11 jurors caused a mistrial that bars retrial under Double Jeopardy	Moving defendants: government’s conditioned consent amounted to causing the mistrial, so retrial is barred	Government: it lawfully exercised its right under Rule 23; refusal was not in bad faith and did not compel double jeopardy protection	Held: Government’s exercise of Rule 23 was lawful but risked double jeopardy; court found retrial barred as to the three consenting defendants and dismissed indictment with prejudice.
Whether Rule 23 permits trial to proceed over a party’s objection with fewer than 12 jurors before verdict	Defendants: Rule 23 cannot be used to defeat defendants’ double jeopardy rights when it effectively causes mistrial	Government: Rule 23 clearly requires party consent and allows withholding consent; it cannot be punished for that statutory right	Held: Rule 23 requires consent, but compliance with Rule 23 does not automatically resolve constitutional double jeopardy claims.
Whether the Perez/manifest necessity standard applies to government decisions that lead to mistrial	Defendants: When prosecutor plays a prominent role in bringing about mistrial, the prosecutor must meet manifest necessity standard	Government: The decision was tactical and permitted under Rule 23; no bad faith shown	Held: Where prosecutor’s decision prominently contributes to mistrial, double jeopardy inquiry requires scrutiny under Perez/manifest necessity; here government failed that balance as to the three consenting defendants.
Whether temporal and benefit considerations weigh against retrial	Defendants: After a month-long trial, retrial imposes heavy burden; government gained strategic benefits	Government: Public interest in full and fair prosecution justifies retrial of all defendants together	Held: The timing (late-stage trial) and government’s apparent benefits from mistrial tipped balance in favor of barring retrial for consenting defendants.

Key Cases Cited

Patton v. United States, 281 U.S. 276 (discusses historical view of 12-person jury)
Williams v. Florida, 399 U.S. 78 (rejects constitutional necessity of 12-member jury)
United States v. Perez, 22 U.S. 579 (establishes "manifest necessity" standard for mistrials)
Downum v. United States, 372 U.S. 734 (double jeopardy bars retrial where prosecutor’s carelessness caused mistrial)
United States v. Jorn, 400 U.S. 470 (mistrial declared without adequate consideration may bar retrial)
Illinois v. Somerville, 410 U.S. 458 (mistrial justified where manifest necessity and public interest support it)
Arizona v. Washington, 434 U.S. 497 (prosecutor must justify mistrial declared over defendant’s objection)
Green v. United States, 355 U.S. 184 (double jeopardy protects against repeated prosecutions and the ordeal of multiple trials)
Gori v. United States, 367 U.S. 364 (deference to trial judge where mistrial fits manifest necessity)