376 F.3d 33 (1st Cir. 2004), 01-2565, United States v. Toribio-Lugo

Docket Nº:01-2565.
Citation:376 F.3d 33
Party Name:UNITED STATES of America, Appellee, v. Jos
Case Date:July 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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376 F.3d 33 (1st Cir. 2004)

UNITED STATES of America, Appellee,


José TORIBIO-LUGO, Defendant, Appellant.

No. 01-2565.

United States Court of Appeals, First Circuit

July 21, 2004

Heard June 7, 2004.

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Joannie Plaza-Martinez, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief, for appellant.

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.

Before SELYA, LYNCH and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

Four days into a criminal trial, the district court discovered that a juror had been absent for some time and, having previously discharged the lone alternate, declared a mistrial sua sponte. Defendant-appellant José Toribio-Lugo thereafter moved to dismiss the indictment on double jeopardy grounds. The district court denied that motion. This appeal ensued. After careful review, we conclude that the lower court erred in refusing to dismiss the indictment.


On June 6, 2001, a federal grand jury indicted the appellant for various narcotics offenses. See, e.g., 21 U.S.C. §§ 841(a)(1), 952(a). The court empaneled a jury of twelve, plus one alternate. Trial commenced on August 13, 2001. The alternate juror experienced a personal problem and the judge excused her on the second day of trial.

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 Fed.R.Crim.P. 23(b)(2)(A) (permitting the parties in a criminal case to stipulate to trial by a jury of fewer than twelve at any time before the verdict). Defense counsel asked why the juror was missing and, in virtually the same breath, began to express her viewpoint. She stated: "The thing is I'm thinking about--". That was as far as she got. The district judge interrupted, declaring: "This is very simple. [The missing juror's] not here. She's not here. She might be dead. She may be ill. It doesn't make any difference." Chastened, defense counsel conferred with her client and informed the judge that the appellant did not wish to proceed at that moment with eleven jurors, but, rather, would "like to wait for twelve jurors, a twelve-member jury." The judge then terminated the sidebar conference, announcing that the trial would be postponed until the twelfth juror could be found.

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

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is that--". The judge once again cut her off mid-sentence, saying: "Counsel. Wait." He then began questioning the courtroom deputy about the number of jurors originally empaneled.

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 dismiss. 1 United States v. Toribio-Lugo, 164 F.Supp.2d 251 (D.P.R.2001). The judge predicated his ruling on two alternative grounds. First, he concluded that a mistrial was required by manifest necessity because only eleven jurors remained and the appellant had refused to proceed with fewer than twelve. Id. at 253-54. Second, he concluded that the appellant had, in all events, consented to the declaration of a mistrial. Id. at 254-55. This appeal followed.


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, 97 S.Ct. 2034, 52 L.Ed.2d 651 (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. ...

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