73 F.4th 70
1st Cir.2023Background
- Dennison was charged in federal court (18 U.S.C. § 875(c)) and tried in the District of Maine in May 2022; the court had pandemic-era General Orders (masking, vaccination/testing, and barring positives from the courthouse).
- Trial began May 24: jury sworn, openings made, government called Border Patrol Agent Jonathan Duquette (case agent and key witness).
- During a mid-morning recess Duquette took a rapid COVID-19 test that returned positive; the General Order barred anyone testing positive from remaining in the courthouse.
- The court conferred with counsel (brief recess), considered alternatives (masked/distanced testimony, juror willingness, continuance, video testimony, striking testimony), and then declared a mistrial; jurors were dismissed.
- Dennison moved to dismiss on double jeopardy grounds; the district court denied the motion and the First Circuit reviewed the denial on interlocutory appeal and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for a mistrial declared because a prosecution witness became unavailable | Dennison: apply "strictest scrutiny" where mistrial flows from unavailability of key prosecution evidence | Government: ordinary abuse-of-discretion review; "strictest scrutiny" applies only where prosecution fault or bad faith is implicated | Court: did not apply a different standard; reviewed for abuse of discretion because no government fault suggested |
| Whether the mistrial was justified by manifest necessity (Double Jeopardy) | Dennison: court abused discretion; mistrial unnecessary given alternatives (voir dire jurors, continuance, video testimony, striking testimony) | Government: manifest necessity existed due to witness unavailability, health/exposure risk, General Order constraints, scheduling uncertainty | Court: affirmed — district court acted within discretion; properly considered and rejected reasonable alternatives; manifest necessity established |
| Whether proposed alternatives (juror voir dire, continuance, video/striking testimony) were viable | Dennison: court failed to meaningfully pursue these less drastic options | Government: alternatives impractical or inconsistent with General Order and constitutional rights (confrontation), and continuance/scheduling unpredictable | Court: alternatives were reasonably rejected (juror voir dire inappropriate given exposure and court order; continuance indeterminate; video would require waiver; witness essential — striking not viable) |
Key Cases Cited
- Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (one prosecution generally; mistrial over defendant's objection disallowed unless manifest necessity)
- Downum v. United States, 372 U.S. 734 (U.S. 1963) (prosecution cannot go to trial aware that key witnesses are unavailable)
- United States v. Dinitz, 424 U.S. 600 (U.S. 1976) (bad-faith mistrial declarations can bar retrial)
- United States v. Jorn, 400 U.S. 470 (U.S. 1971) (trial judge must exercise scrupulous discretion in declaring mistrials)
- Illinois v. Somerville, 410 U.S. 458 (U.S. 1973) (no mechanical rule; manifest necessity is fact-specific)
- United States v. Garske, 939 F.3d 321 (1st Cir. 2019) (jeopardy attaches when jury sworn; defer to district court factual findings)
- United States v. McIntosh, 380 F.3d 548 (1st Cir. 2004) (manifest-necessity factors and deference to trial-court decision)
- United States v. Lara-Ramirez, 519 F.3d 76 (1st Cir. 2008) (insufficient inquiry into jury contamination can vitiate manifest-necessity finding)