United States v. Garske, 939 F.3d 321

Four individuals (Ackerly, Garske, Gottcent, Sedlak) were indicted on fraud and conspiracy charges; trial began with 12 jurors.
During trial a juror (Juror 12) became unavailable due to his wife’s sudden serious illness, reducing the panel to 11 before verdict.
Federal Rule of Criminal Procedure 23(b)(2) requires written consent of the parties and court approval to proceed to verdict with fewer than 12 jurors.
Ackerly refused to consent to an 11-person jury; the government withheld unconditional consent, the district court declared a mistrial and the government sought retrial.
The district court dismissed the indictment on double jeopardy grounds, applying a novel rule that the government must satisfy the "manifest necessity" standard for its decisionmaking; the First Circuit reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the "manifest necessity" standard applies to the government's decision to withhold consent under Rule 23	Government: No; manifest necessity is the standard for the trial judge's decision to declare a mistrial, not for the prosecutor's refusal to consent	Defendants: Yes; when the government causes a mistrial by withholding consent it must justify that decision under manifest necessity	Held: Manifest necessity applies to the judge's mistrial decision; the government need not satisfy that standard for withholding consent absent purposeful instigation or misconduct
Whether double jeopardy bars retrial because the mistrial lacked manifest necessity or was instigated by the prosecution	Government: Mistrial was justified by manifest necessity (twelfth juror unavailable); government did not act with improper motive	Defendants: The government effectively forced the mistrial and cannot retry without satisfying manifest necessity	Held: The district court correctly found manifest necessity for the judge's mistrial (juror unavailability; court explored alternatives); no evidence the prosecution purposefully instigated or engaged in misconduct; retrial permitted

Patton v. United States, 281 U.S. 276 (1930) (defendant's constitutional right to a 12-person jury; waiver requires government consent and court sanction)
United States v. Perez, 22 U.S. 579 (1824) (mistrial/retrial permitted where there is "manifest necessity" or public justice would be defeated)
Arizona v. Washington, 434 U.S. 497 (1978) (prosecutor must justify mistrial declared over defendant's objection; review focuses on judge's exercise of discretion)
Illinois v. Somerville, 410 U.S. 458 (1973) (mistrial appropriate when proceeding would produce a verdict inevitably reversed on appeal)
Oregon v. Kennedy, 456 U.S. 667 (1982) (double jeopardy bars retrial when prosecutor acts with intent to provoke a mistrial)
Dinitz v. United States, 424 U.S. 600 (1976) (double jeopardy protects against prosecutorial manipulation designed to provoke mistrial)
United States v. McIntosh, 380 F.3d 548 (1st Cir. 2004) (double jeopardy shields against prosecutorial maneuvering intended to cause mistrial)
United States v. Toribio-Lugo, 376 F.3d 33 (1st Cir. 2004) (jeopardy attaches when jury is sworn; review standard for mistrial rulings)
United States v. Simonetti, 998 F.2d 39 (1st Cir. 1993) (retrial barred where mistrial declared over defendant's objection was caused by governmental misconduct)