287 F.3d 229 (1st Cir. 2002), 01-2233, U.S. v. Keene

Docket Nº:01-2233
Citation:287 F.3d 229
Party Name:U.S. v. Keene
Case Date:April 29, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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287 F.3d 229 (1st Cir. 2002)

UNITED STATES of America, Appellee,


Joel KEENE, Defendant, Appellant.

No. 01-2233.

United States Court of Appeals, First Circuit

April 29, 2002

Heard April 4, 2002.

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Taylor D. Fawns, with whom William Maselli was on brief, for appellant.

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Margaret D. McGaughey, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

In this interlocutory appeal, defendant-appellant Joel Keene beseeches us to reverse an order of the district court refusing to dismiss an indictment on double jeopardy grounds. The appellant asseverates that the district court should have acknowledged that it acted too hastily in declaring a mistrial, over the appellant's objection, instead of exhorting the jury to deliberate further, and, accordingly, should have barred further prosecution of the charges against him. Finding this asseveration unpersuasive, we affirm the district court's denial of the motion to dismiss.


A federal grand jury sitting in the District of Maine indicted the appellant on drug-trafficking and criminal forfeiture charges. See 21 U.S.C. §§ 841(a)(1), 853. Trial on the drug-trafficking counts commenced on June 25, 2001. By early afternoon, the government had completed its case in chief. The court adjourned at that juncture. The jurors returned the next morning and the appellant began to present his defense. Later that day, the appellant rested, the attorneys made their closing arguments, and the court charged the jury.

The jurors began deliberating at approximately 1:00 p.m. on June 26. Shortly thereafter they sent the judge a note. Finding the note opaque, the judge conferred with counsel. An exchange of notes followed, punctuated by periodic conferences between the judge and the lawyers. Eventually, the jury requested that certain testimony be read back. After again conferring with counsel, the judge acceded to the request but limited the scope of the read-back. The jury then retired to continue its deliberations.

Within a relatively short time, the foreperson informed the court that the members of the jury could not agree upon a verdict. The judge consulted with counsel, who jointly suggested that the jurors be allowed to go home for the day and resume deliberations the next morning. Concerned that this course of action, unexplained, might lead jurors to conclude that they would be obliged to deliberate indefinitely, the judge told the lawyers that he preferred to provide the jurors with instructions of the sort customarily given to deadlocked juries and offer them the opportunity to choose between going home or continuing their deliberations. The attorneys agreed to this proposal.

The judge thereupon returned the jurors to the courtroom and gave a modified Allen charge. See Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). He concluded his remarks by presenting the jurors with a choice of how to proceed. After whispered consultations in the jury box, the foreperson advised the court that the jurors wished to continue deliberating.

Approximately an hour and a half later--at 6:22 p.m.--the jurors sent a note to the judge, reporting that they were "truly deadlocked." To emphasize the point, the foreperson underlined a word fragment in the phrase "cannot come to a unanimous decision." The judge conferred with counsel, and all parties concurred that it would be premature to abandon hope for a unanimous verdict. The judge, with the lawyers' approbation, agreed to send the jurors home and bring them back the next

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morning to resume deliberations. However, defense counsel asked for something more: a supplemental instruction that would in essence amount to a second modified Allen charge. The judge demurred, citing this court's decision in United States v. Barone, 114 F.3d 1284, 1305 (1st Cir. 1997), and dismissed the jury for the day without giving the requested instruction.

The jurors reconvened on June 27. Almost immediately, they asked that additional testimony be read back. After soliciting the attorneys' views and engaging in an exchange of notes with the jury, the court permitted a read-back of certain testimony. The jury retired to continue its deliberations at about 10:44 a.m. Around noontime, the jurors transmitted yet another note to the judge declaring that "we cannot come to a unanimous decision" (emphasis in the original). This time, each juror signed the communiqué.

The judge promptly conferred with counsel. The defense attorney renewed his request for a second modified Allen charge. The judge denied the request, explaining that the case did not present special circumstances of a type or kind that would warrant such an unusual measure. Instead, the judge sent the jury a note inquiring whether there was any possibility that, in time, it might arrive at a unanimous decision on either of the two counts. In...

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