U.S. v. Keene

• Citation: 287 F.3d 229
• Decision Date: 29 April 2002
• Docket Number: No. 01-2233.,01-2233.
• Parties: UNITED STATES of America, Appellee, v. Joel KEENE, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

287 F.3d 229

UNITED STATES of America, Appellee, v. Joel KEENE, Defendant, Appellant.

No. 01-2233.

United States Court of Appeals, First Circuit.

Heard April 4, 2002.

Decided April 29, 2002.

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

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.

I. BACKGROUND

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 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 a reply note, the jury responded in the negative (again emphasizing the word fragment "not"). Over the appellant's objection, the judge declared the jury hopelessly deadlocked and ordered a mistrial.

In due course, the appellant moved to dismiss the indictment, arguing that a retrial would offend the Double Jeopardy Clause. The district court wrote a thoughtful rescript in which it denied the motion. United States v. Keene, 158 F.Supp.2d 93, 95 (D.Me.2001). This interlocutory appeal followed.

II. ANALYSIS

Under ordinary circumstances, a defendant cannot take an immediate appeal from an interlocutory order in a criminal case. There is a well-recognized exception, however, that materializes when the defendant is able to mount a colorable claim that further proceedings in the trial court will constitute double jeopardy. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Stoller, 78 F.3d 710, 714 (1st Cir.1996). This is such a case.

We divide our analysis into segments. We begin by limning the manner in which the district court's power to declare mistrials implicates double jeopardy principles. We then turn to the merits of the appellant's claim.

A. Double Jeopardy Principles.

The Double Jeopardy Clause ensures that no "person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This provision "embodies a triumvirate of safeguards," United States v. Ortiz-Alarcon, 917 F.2d 651, 653 (1st Cir.1990), including protection against serial attempts by the government to convict a defendant on a single charge. The concept behind this branch of the Double Jeopardy Clause "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal, and ... enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

When a mistrial is declared prior to the rendition of a jury verdict, double jeopardy principles sometimes may bar further prosecution of the charge. E.g., United States v. Pierce, 593 F.2d 415, 419-20 (1st Cir.1979) (foreclosing a retrial, on double jeopardy grounds, following the declaration of a mistrial over objection and without sufficient exploration of available alternatives). But that is the exception to the rule: an appropriately declared mistrial does not insult principles of double jeopardy (and, therefore, does not bar retrial). See Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Simonetti, 998 F.2d 39, 41 (1st Cir.1993). Consequently, the denial of a motion to dismiss after a jury deadlock usually will not violate the Double Jeopardy Clause. Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); United States v. Barbioni, 62 F.3d 5, 7 (1st Cir.1995). It is against this backdrop that we evaluate the merits of the instant appeal.

Our standard of review is intricate. Technically, we are called upon to review the district court's denial of a motion to dismiss on double jeopardy grounds. On its face, that motion presents a pure question of law. As such, it ordinarily would engender de novo review. E.g., United States v. Morris, 99 F.3d 476, 478 (1st Cir.1996).

Here, however, there is a wrinkle. In certain cases, the correctness of the district court's decision ultimately hinges on the justification for ordering a mistrial. The decision as to whether to declare a mistrial speaks to the informed discretion of the district court, and is customarily reviewed only for abuse of that discretion. See United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994). Where, as here, a motion to dismiss on double jeopardy grounds trails in the wake of the district court's declaration of a mistrial, both the Supreme Court and this court have consistently applied an abuse of discretion standard in reviewing appeals from the denial of such motions. E.g., Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. 824 (explaining that, in such situations, "reviewing courts have an obligation to satisfy themselves that ... the trial judge exercised sound discretion in declaring a mistrial") (internal quotation marks omitted); United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (finding preclusion on double jeopardy grounds because "the trial judge ... abused his discretion in discharging the jury"); Barbioni, 62 F.3d at 7 (adopting abuse of discretion standard in similar circumstances); Simonetti, 998 F.2d at 42 (same). We therefore review the district court's decision here for abuse of discretion.

We caution however, that in cases of this genre, review for abuse of discretion entails heightened rigor. See Jorn, 400 U.S. at 485, 91 S.Ct. 547 (demanding a ...