U.S. v. Julien

• Decision Date: 03 February 2003
• Docket Number: No. 02-1765.,02-1765.
• Parties: UNITED STATES, Appellee, v. Garry JULIEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 316

318 F.3d 316

UNITED STATES, Appellee, v. Garry JULIEN, Defendant, Appellant.

No. 02-1765.

United States Court of Appeals, First Circuit.

Heard January 10, 2003.

Decided February 3, 2003.

William Maselli for appellant.

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

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

Garry Julien was charged with conspiracy with intent to distribute cocaine base and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841 (2000) and 18 U.S.C. § 2 (2000). He was tried in December 2001 along with a codefendant, Brian Goodine. The five-day trial ended with a conviction for Goodine but a hung jury for Julien; over Julien's objection, the district court declared a mistrial on the charges against him.

After trial, Julien moved to dismiss the indictment on the basis that a second trial on the charges would violate the Double Jeopardy Clause. U.S. Const. amend. V. The district court denied the motion. At the second trial, Julien was convicted on the possession with intent charge. He now appeals the denial of his motion to dismiss the indictment. He also raises insufficiency of the evidence and prosecutorial misconduct claims. We reject all of his claims and affirm the conviction.

I.

We sketch only the basic facts here, and delve into the details, where they are relevant, in the legal analysis. Julien was arrested on March 19, 2001, when the police responded to a report from a motel manager in Saco, Maine about the odor of marijuana coming from a room. When the police entered, they found Julien, Goodine, and two other occupants (Ricardo King and Bertram Leslie). There was drug paraphernalia, cash, and a small quantity of loose marijuana and bagged crack cocaine in the room. On the ground outside the room's open window, police discovered approximately 200 grams of crack cocaine in a plastic bag, as well as some marijuana, razor blades, an electronic scale, and a plate with what appeared to be cocaine residue. Julien, King, and Goodine were indicted; King became a cooperating witness against the others and testified at both trials. Leslie was not charged; he also testified at both trials.

The first trial, with Julien and Goodine as defendants, began on Monday, December 10, 2001. The jury heard some fourteen hours of testimony over the following three and a half days, and began deliberating just before 1 p.m. on Thursday, December 13. The next day at 8 p.m., after sixteen total hours of deliberations, the jury indicated that it was deadlocked on charges against one defendant. The court accepted a guilty verdict as to Goodine and declared a mistrial as to Julien.

Julien moved to dismiss the indictment on double jeopardy grounds on December 21, 2001. In a comprehensive Memorandum and Order issued January 4, 2002, the district court denied the motion. Julien did not take an interlocutory appeal of that denial before the second trial, as he was entitled to do under Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Instead he chose to undergo the second trial before raising the double jeopardy issue on appeal.

Julien's second trial, held before a different judge in March 2002, ended with his conviction on the charge of possession with intent to distribute; there was a hung jury on the conspiracy count. On the government's motion, the indictment on the conspiracy charge was dismissed on June 12, 2002.

II.

Julien's appeal raises four issues. He argues that there was no manifest necessity for the declaration of a mistrial in the first trial; that there was insufficient evidence at the first trial to support a conviction, both as to conspiracy and as to possession with intent to distribute; that the evidence on both counts was insufficient at the second trial; and that certain actions by the prosecution in the two trials constitute government misconduct.

A. Mistrial and Double Jeopardy

The Double Jeopardy Clause requires that no person "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V.

For a defendant, there are serious consequences stemming from enduring two trials on a single set of criminal charges. Among other things, the government may gain an advantage at the second trial for having seen the defense case at the first trial. As a result, courts do not lightly grant mistrials after jeopardy has attached. See Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Still, a hung jury is the classic instance where a mistrial may be warranted, and that has been so in our jurisprudence for at least 175 years. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) (Story, J.). The government must shoulder the "heavy" burden of justifying a mistrial by demonstrating the "manifest necessity" for a mistrial when the defendant objects. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

Our review of a district court's decision that there was manifest necessity justifying the declaration of a mistrial is for abuse of discretion. Id. at 510 & n. 28, 98 S.Ct. 824. There is case law suggesting that where constitutional concerns are raised by the denial of a motion to dismiss premised on double jeopardy grounds, as here, then the ultimate conclusion is reviewed de novo, see United States v. DiPietro, 936 F.2d 6, 8 (1st Cir.1991), while the subsidiary factual determinations are reviewed only for clear error. United States v. Bradshaw, 281 F.3d 278, 291 (1st Cir.2002). In practice, though, the reviewing court reviews whether the district court abused its discretion, subject to heightened rigor in the review. United States v. Keene, 287 F.3d 229, 233 (1st Cir.2002); Bradshaw, 281 F.3d at 291. Errors of law, of course, constitute abuse of discretion. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

In reviewing the mistrial determination we look, inter alia, at whether the district court considered all the relevant factors, including the availability of alternatives to mistrial; the positions taken by the parties at trial and whether they had an opportunity to state their positions; and whether the court's decision was deliberative in nature. See Keene, 287 F.3d at 234; United States v. Simonetti, 998 F.2d 39, 41 (1st Cir.1993).

Julien makes two assertions to be evaluated in this manner against the facts and the trial court's decision. First, he says that the mistrial was declared at 8 p.m. on Friday night, when the jury was exhausted and should have been given the option of going home for the weekend and returning refreshed on Monday morning. Second, he notes that the jury deliberated for three hours after stating that it had reached a verdict on one defendant but not the other; he argues that the jury therefore spent only three hours focused on Julien alone and that this was an insufficient amount of time.

The course of deliberations was as follows. The jury began deliberations at 1 p.m. on Thursday, December 13. At 5:30 p.m., in response to an offer from the court to send in dinner, the foreperson sent a note which read, "We are not even close to a verdict in either, do we have the option of coming back tomorrow? We are very far apart." After consultation with counsel, the court gave the jury the choice between deliberating longer that night or resuming in the morning. The jurors opted to go home for the evening.

The jury deliberated the second day, Friday, from 8:30 a.m. until 4:30 p.m. Shortly before 4 p.m. the foreperson sent a question asking why the jury had to decide drug quantities on the verdict form. The court answered the question and half an hour later another note came, stating in full, "We have reached a decision on one defendant, but cannot agree on the second." After some consultation between the judge and counsel, Julien proposed that the court deliver an Allen instruction, see Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and then have the jury deliberate for another hour before accepting its partial verdict.

The court gave a modified Allen charge. It then inquired whether the jury wanted to keep working that evening or "whether you feel at this time the jury is so exhausted that you need to go home and return on Monday morning." The jurors chose to work further that evening. An hour later, the jury asked a question about the dates of the conspiracy, which the court answered.

At 7:50 p.m., nearly three hours after the Allen charge, another note came: "The jury is deadlocked on both counts for one of the defendants. There has been no movement and [we] foresee no movement in further deliberations." Julien asked that the jury be sent home and resume deliberations on Monday. The trial court decided to take the verdict on one defendant and declare a manifest necessity mistrial on the other.

As the district court noted, the jurors had indicated difficulty reaching agreement three times: first saying they were "far apart," then that they "cannot agree," and finally that they were "deadlocked." The last note came after a total of sixteen hours of deliberation in a case which was not complex and involved only fourteen hours of testimony. See United States v. Barbioni, 62 F.3d 5, 7 (1st Cir. 1995) (upholding manifest necessity mistrial after almost ten hours of deliberations following short, simple trial). Counsel was consulted at every stage. Contrary to Julien's assertions, the record does not establish that the jurors were too exhausted to deliberate further; the court asked them if they were, and they elected to continue deliberating. Nor does the record indicate, as Julien argues, that the jurors had not completed significant deliberations concerning Julien before the note indicating agreement on Goodine; rather, the...