UNITED STATES OF AMERICA, Appellee, v. JOSÉ TORIBIO-LUGO, Defendant, Appellant.
No. 01-2565
United States Court of Appeals For the First Circuit
July 21, 2004
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Héctor M. Laffitte, U.S. District Judge]
Before Selya, Lynch and Lipez, Circuit Judges.
Irene C. Feldman, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, Jorge E. Vega-Pacheco, Chief, Criminal Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.
I. BACKGROUND
On June 6, 2001, a federal grand jury indicted the appellant for various narcotics offenses. See, e.g.,
At the start of the fourth day, the courtroom deputy informed the judge that only eleven jurors were present. The judge immediately consulted with both the prosecutor and the appellant‘s lawyers. He outlined two options: either postpone the trial until the twelfth juror could be located or proceed with a jury of eleven. See
Almost immediately thereafter, the judge learned that the problem was more complex than he initially had thought. Thus, he excused the jury and told the attorneys what he had learned: that the missing juror had been absent during some or all of the earlier portions of the trial. The judge then announced that he was going to declare a mistrial because only eleven jurors had heard the evidence and he did not believe that there was any way to cure that defect. The prosecutor promptly asked for a new trial date, but the judge, seemingly anticipating a double jeopardy challenge, declined the request. Defense counsel tried to articulate her client‘s position. She stated: “Our position is that --“. The judge once again cut her off mid-sentence, saying: “Counsel.
The shape of the fiasco soon emerged. On the morning of August 13 (the first day of trial), twelve jurors and one alternate were sworn. For reasons that remain obscure, one of the empaneled jurors vanished later that morning. No one — neither the prosecutor, nor defense counsel, nor the courtroom deputy, nor the judge — noticed the juror‘s absence, and the trial proceeded apace. This state of blissful ignorance still existed when, on the second trial day, the judge, with the assent of both parties, dismissed the alternate juror. The upshot was that only twelve jurors had begun to hear evidence in the case and only eleven of them had been present from the second day forward.
After recounting this bizarre sequence of events, the district judge expressed some uncertainty about whether, in the event of a mistrial, the Double Jeopardy Clause would bar retrial of the appellant. The judge invited the attorneys to brief the issue. Defense counsel again endeavored to be heard, but the judge again thwarted her attempt. He then reconvened the jury and, acting sua sponte, declared a mistrial.
When thereafter the government moved for a new trial date, the appellant objected and cross-moved for dismissal of the indictment on double jeopardy grounds. Briefs were submitted. On September 24, 2001, the district judge denied the motion to
II. ANALYSIS
In the ordinary course, a defendant cannot pursue an immediate appeal from an interlocutory order in a criminal case. Like virtually every general rule, this rule admits of various exceptions — and one such exception allows immediate appeals from denials of motions to dismiss premised on colorable double jeopardy grounds. See Abney v. United States, 431 U.S. 651, 662 (1977); United States v. Keene, 287 F.3d 229, 232 (1st Cir. 2002). This case comes within that exception. We turn, then, to the merits of the appeal.
A. Background Principles.
The Double Jeopardy Clause ensures that no person shall “be subject for the same offence to be twice put in jeopardy of
The prophylaxis of the Double Jeopardy Clause is threefold. See United States v. Ortiz-Alarcon, 917 F.2d 651, 653 (1st Cir. 1990) (delineating the three main types of protection conferred). One such protection restrains the government from using its power and resources to subject a defendant to serial prosecutions, thus prolonging his ordeal and unfairly enhancing the prospect of his ultimate conviction. Green v. United States, 355 U.S. 184, 187-88 (1957). Despite its importance, however, the protection against serial prosecutions is not absolute.
Mistrials exemplify the need for exceptions. When a mistrial is declared before the jury returns its verdict, jeopardy may or may not attach. In other words, double jeopardy principles do not automatically bar reprosecution, Washington, 434 U.S. at 505, and the circumstances of each case must be examined to determine where that case falls along the double jeopardy continuum. If, say, the defendant has consented to a mistrial or manifest necessity has precipitated it, the prosecution ordinarily may proceed anew. See United States v. Dinitz, 424 U.S. 600, 611-12 (1976) (finding no double jeopardy bar where the defendant had moved for a mistrial); United States v. Perez, 22 U.S. (9 Wheat.) 579, 579-80 (1824) (finding no double jeopardy bar where the existence of a deadlocked jury made a mistrial manifestly necessary). These outcomes reflect an understanding that “a defendant‘s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public‘s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 (1949).
B. Standard of Review.
The baseline standard of review applicable to a denial of a motion to dismiss on double jeopardy grounds following the declaration of a mistrial is abuse of discretion. See, e.g., Washington, 434 U.S. at 514; Keene, 287 F.3d at 233. In light of the important constitutional right involved, appellate review must ensure that the trial court indulged in a “scrupulous exercise of judicial discretion.” United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality op.). This entails accepting the trial court‘s factual findings unless they are clearly erroneous. United States v. Bradshaw, 281 F.3d 278, 291 (1st Cir.), cert. denied, 537 U.S. 1049 (2002). Articulations of law engender de novo review. Keene, 287 F.3d at 233. A mistake of law is, a fortiori, an abuse of discretion. United States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998).
C. Manifest Necessity.
Like the district court, we first inquire into the existence vel non of manifest necessity (after all, if a mistrial was occasioned by manifest necessity, then the question of consent becomes immaterial). The Supreme Court initially coined the phrase “manifest necessity” in the early nineteenth century. In Perez, Justice Story wrote:
[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; . . . .
22 U.S. (9 Wheat.) at 580. Attempts to define the term more precisely — beyond tautological acknowledgments that manifest
In the case at hand, there was a clear alternative to a mistrial: proceeding with eleven jurors. Although the Criminal Rules normally require a twelve-member jury in a criminal case, see
The district court only tentatively explored — and never exhausted — that possibility. Instead, the court mistakenly concluded that the alternative was foreclosed by the appellant‘s initial expression of a preference to wait and see if the twelfth
When the district court discovered that a juror was missing, it presented the lawyers with two options: either to postpone the proceedings until the vanished juror could be located or to proceed with a jury of eleven. As between these two alternatives, the appellant chose the former. The court never offered the appellant a choice between proceeding with eleven jurors or accepting a mistrial. To cinch matters, the court, during the pertinent time frame, made no effort to ascertain the appellant‘s attitude or wishes with regard to the possibility of a mistrial. In view of these omissions, the record compels a conclusion that the “jury of eleven” alternative was not adequately explored.
That conclusion is dispositive on this point. Where there is a viable alternative to a mistrial and the district court fails adequately to explore it, a finding of manifest necessity cannot stand. See, e.g., United States v. Ramirez, 884 F.2d 1524, 1529-30 (1st Cir. 1989); Brady v. Samaha, 667 F.2d 224, 229-30 (1st Cir. 1981). This is such a case. Accordingly, we reject the lower court‘s holding that its declaration of a mistrial was supported by manifest necessity.
In the absence of manifest necessity, double jeopardy principles require that a defendant retain primary control over whether or not to abort an ongoing trial. See Dinitz, 424 U.S. at 609. Withal, the protections of the Double Jeopardy Clause are at most a series of personal defenses, so they may be waived or vitiated by consent. Id. at 607; United States v. DiPietro, 936 F.2d 6, 9 (1st Cir. 1991). This brings us to the district court‘s alternate holding: that the appellant consented to the declaration of a mistrial.
In this context, consent may be express, such as where the defendant himself moves for a mistrial without having been goaded into doing so by misconduct attributable to the government. E.g., Dinitz, 424 U.S. at 607-12. The requisite consent may also be implied from a defendant‘s acts or failures to act, such as where the defendant sits silently by and does not object to the declaration of a mistrial even though he has a fair opportunity to do so. E.g., DiPietro, 936 F.2d at 9-11. Even so, the implication of consent is not lightly to be indulged. Any such finding must be consistent with the defendant‘s valued right to trial before a particular jury and his concomitant interest in deciding whether to take the case from that jury.
In this instance, the district court concluded that the appellant consented to the declaration of a mistrial twice over.
There is, however, more to this case. The district court also held that the appellant impliedly consented to the declaration of a mistrial by his silence when the court announced its intention to abort the proceedings. Id. The integrity of this finding presents a close question: as the district court correctly observed, defense counsel was present throughout and did not object to the declaration of a mistrial at any point.
Under most circumstances, such silence might well permit a finding of implied consent. See, e.g., United States v. Nichols, 977 F.2d 972, 974-75 (5th Cir. 1992) (per curiam); DiPietro, 936 F.2d at 11; Camden v. Circuit Court, 892 F.2d 610, 612-18 (7th Cir. 1989). But this case is different. Implying consent from a failure to object requires, at a bare minimum, that the defendant has had an adequate opportunity to register an effective objection. Compare DiPietro, 936 F.2d at 11 (implying consent where defense counsel sat in the courtroom for several minutes during the announcement of a mistrial without objecting), with Love v. Morton, 112 F.3d 131, 138-39 (3d Cir. 1997) (rejecting a finding of implied consent where the trial judge, in a state of grief after learning of a death in his family, abruptly ordered a mistrial and left the bench). Thus, the question reduces to whether defense counsel had a fair opportunity to object here.
The district court answered this question in the affirmative. The court found that defense counsel had several chances to voice an objection:
For several minutes after the Court announced its decision to declare a mistrial, both defense counsel and government counsel remained in the courtroom. Defense counsel was present as the Court questioned the courtroom deputy as to the whereabouts of the missing juror. Next, defense counsel was present while the Court expressed its concern over [the] government‘s motion to set a new trial date. Finally, defense counsel was present as the Court explained the reason for the mistrial to the jury before discharging them. At no timefrom [sic] the moment the Court declared a mistrial to the moment it discharged the jury did defense counsel object to the mistrial.
Toribio-Lugo, 164 F. Supp. 2d at 254-55. We accept the court‘s factual findings that defense counsel was present at all relevant times and lodged no formal objection. In the circumstances of this case, however, those facts tell only a part of the story. And when the full panoply of facts is taken into account, the district court‘s conclusion that counsel had an adequate opportunity to object becomes insupportable.
In this case, defense counsel made either two or three attempts to be heard during the district court‘s sua sponte consideration of whether or not to declare a mistrial.2 On each occasion, the court stopped counsel in her tracks, cutting her off
Let us be perfectly clear. We do not mean to say that being silenced by a judge always correlates with a lack of opportunity to object. See generally United States v. Mejia, 909 F.2d 242, 248 (7th Cir. 1990) (explaining that counsel “has a duty to object, and even at the risk of incurring the displeasure of the trial court, to insist upon his objection“) (citations omitted). Here, however, a confluence of factors, especially the number of times that defense counsel was stymied and the relatively brief period of time that elapsed, militates strongly in favor of a conclusion that consent should not be implied.3
With all due respect for the good faith of the district judge (which we do not doubt), we conclude that a fundamental constitutional right of an accused should not be snatched away in such uncertain circumstances. Consequently, we hold that the district court‘s second basis for its finding of consent is, like its first, untenable.
That ends the matter. In the absence of either manifest necessity or binding consent, jeopardy attached. Thus, the appellant‘s reprosecution was not constitutionally permissible.
III. CONCLUSION
We need go no further. For the reasons elucidated above, we reverse the order appealed from and remand the case to the district court with directions to vacate the defendant‘s conviction. See supra note 1. The district court should thereupon dismiss the indictment.
Reversed and remanded.