United States v. Washington, 050815 FED11, 14-15219

Docket Nº:14-15219
Opinion Judge:PER CURIAM.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES ANDREW WASHINGTON, Defendant-Appellant.
Judge Panel:Before HULL and BLACK, Circuit Judges, and ANTOON, District Judge.
Case Date:May 08, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JAMES ANDREW WASHINGTON, Defendant-Appellant.

No. 14-15219

United States Court of Appeals, Eleventh Circuit

May 8, 2015

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:14-cr-20585-KMW-1

Before HULL and BLACK, Circuit Judges, and ANTOON, [*] District Judge.

PER CURIAM.

James Washington appeals the district court's denial of his motion to dismiss the indictment on double jeopardy grounds, filed after the district court declared a mistrial over his objection.1 After careful review of the record and the parties' briefs, we affirm.

I. BACKGROUND

On August 19, 2014, a grand jury indicted Washington for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Washington entered a plea of not guilty and his trial began on November 17, 2014. After the jury was empaneled and administered the oath, the district court instructed the jurors not to discuss the case with anyone, including each other, until the case was over and they went back into the jury room to begin their deliberations.

The government called Denard Birch as its first witness. Birch, a friend of Washington's, testified that he was the passenger in Washington's car on the day of Washington's arrest. Washington was the driver. Birch testified that, at one point Washington got out of the car and noticed police officers, then jumped back into the car and tossed a firearm on the floor of the passenger seat. Birch testified that there was no gun on the floor of the passenger seat when he got into the car, he did not own a gun, and he was not a convicted felon. At the conclusion of Birch's testimony, the court recessed for the day and reminded the jury not to discuss the case with anyone.

A. Declaration of Mistrial

On the second morning of trial, before any other witnesses testified, the six jurors who had already arrived told the courtroom deputy that "they did not understand Mr. Birch at all" and "could not understand what [Birch] said." The district court informed the parties and asked if either party had a solution to the "jurors' inquiry or statement."

The government noted that it was concerned that the jurors' statement suggested that they had been discussing Birch's testimony among themselves. The government contended that even having conversations about how Birch testified or how he spoke was a small step toward evaluating his testimony. Despite acknowledging that it might be "excessively cautious, " the government stated that it would agree to a mistrial and to start over with a new jury, particularly because there would not be a great deal of time lost.

Washington countered he did not think that a mistrial was appropriate at that time, but "of course would defer to the Court on that issue."

The district court asked Washington if he would agree to the government's recalling Birch. Washington declined, stating that the government had had its opportunity to deal with any issues surrounding Birch's testimony and that recall would prejudice Washington.2 The district court highlighted that it had the discretion to allow the government to recall a witness in order to effectively present and ascertain the truth, and Washington's objection to recalling Birch was "tantamount to agreeing with the Government for a mistrial." Ultimately, the district court declared a mistrial.

Washington objected to the declaration of a mistrial. The district court...

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