U.S. v. Berroa, 02-15469.

• Decision Date: 25 June 2004
• Docket Number: No. 02-16114.,No. 02-15469.,02-15469.,02-16114.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel BERROA, Ariasmendy Pilier, Felix Esteban Thomas, Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Felix Esteban Thomas, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

374 F.3d 1053

UNITED STATES of America, Plaintiff-Appellee, v. Miguel BERROA, Ariasmendy Pilier, Felix Esteban Thomas, Defendants-Appellants.

United States of America, Plaintiff-Appellee, v. Felix Esteban Thomas, Defendant-Appellant.

No. 02-15469.

No. 02-16114.

United States Court of Appeals, Eleventh Circuit.

June 25, 2004.

William D. Matthewman (Court-Appointed), William D. Matthewman, P.A., Boca Raton, FL, Michael G. Smith (Court-Appointed), Fort Lauderdale, FL, Richard Alan Moore (Court-Appointed), Richard A. Moore, P.A., Miami, FL, for Defendants-Appellants.

Robert B. Cornell, Anne R. Schultz, U.S. Atty., Miami, FL, Phillip DiRosa, Ft. Lauderdale, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before WILSON and COX, Circuit Judges, and GEORGE^*, District Judge.

GEORGE, District Judge:

During deliberations following an eight day criminal trial, the jury sent two notes to the district court indicating it had decided some counts but could not agree on others. In response to the first note, the district court gave a modified Allen charge. Following the second note, the district court convened the parties, received the jury's verdict acquitting the defendants of the decided counts and declared a mistrial on the undecided counts. The district court, however, failed to give the parties an opportunity to comment, object, or suggest alternatives prior to declaring a mistrial, as required by Rule 26.3 of the Federal Rules of Criminal Procedure.

In this appeal, the defendants contend that the district court's violation of Rule 26.3 and the lack of manifest necessity to warrant a mistrial bars the re-trial of the undecided counts. Although the Rule 26.3 violation creates a strong suggestion that the district court did not exercise sound discretion, we find that the entirety of the circumstances establish that the trial judge did not abuse his discretion in finding manifest necessity for the declaration of mistrial.¹

Factual Background

A federal grand jury returned a four-count indictment charging Felix Esteban Thomas, Miguel Berroa, Ariasmendy Pilier and three other individuals with: (1) conspiracy to obstruct, delay, and affect commerce by a robbery of cocaine from individuals they believed to be engaged in narcotics trafficking by use of actual or threatened force in violation of 18 U.S.C. § 1951(a) (Hobbs Act) (Count One); (2) conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count Two); (3) conspiracy to carry four firearms during and in relation to Counts One and Two, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (o) (Count Three); and (4) carrying and possessing four firearms during and in relation to Counts One and Two, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (2) (Count Four).² The indictment stemmed from an alleged plan to commit an armed home-invasion robbery to take the cocaine and money.

Thomas, Berroa and Pilier were tried before a jury from May 20, 2002, through May 28, 2002. After several requests and questions from the jury during deliberations on May 28 and 29, the jury wrote a note to the court stating, "We have agreed on some counts. However, we are unable to come to a decision on others." After consulting counsel for all parties, the court gave the jury a modified Allen charge.³ The jury continued its deliberations on May 29 and 30, including sending another question to the court. After lunch on May 30, the jury notified the court, "We again have made some decisions. However we can not [sic] come to an agreement on others." In response, the district judge convened court and received the jury's verdict on the counts that were decided. The jury acquitted Thomas on Count Four and was unable to reach a verdict on Counts One, Two and Three. The jury acquitted Berroa and Pilier on Counts Two, Three and Four, but could not reach a verdict on Count One. The court then excused the jury and declared a mistrial as to each undecided count. In so doing, the court did not first provide any party an opportunity to comment on or object to the propriety of a mistrial, or to suggest alternatives as required by Rule 26.3.

Following this declaration of mistrial and the dismissal of the jury, counsel for Berroa both objected to the mistrial and requested pretrial release for his client. The district court, apparently responding to the request for release, indicated that it would "not consider that at this time," and that counsel would have to address it one month later because he was "flying out of this district tomorrow without question." The court further indicated that it would instruct staff "to file such request or any other matter ... to the magistrate for a report and recommendation, because I can rule on those matters even though I am not here."

Berroa and Pilier filed joint motions, adopted by Thomas, (1) for judgment of acquittal; (2) to dismiss Count One of the indictment pursuant to the Double Jeopardy Clause; and (3) to dismiss or bar prosecution based on double jeopardy and collateral or direct estoppel grounds. The defendants argued, as they do on appeal, that double jeopardy barred retrial because: (1) the district court failed to comply with Federal Rule of Criminal Procedure 26.3; (2) the declaration of mistrial was not supported by manifest necessity; and (3) Count One was a lesser included offense of Counts Two through Four and is thus barred based upon principles of collateral or direct estoppel. The district court denied the defendants' motion for judgment of acquittal and, in an October 3, 2002 order, the district court denied the defendants' motions to dismiss Count One, as well as their motion to dismiss or bar prosecution. In its discussion, the court focused on "manifest necessity" as a precursor to declaring a mistrial. Finding the jury genuinely deadlocked, the court concluded that double jeopardy did not bar retrial on Count One because manifest necessity required a declaration of a mistrial. In response to the district court's order, the defendants filed timely notices of interlocutory appeal.

Discussion

We review an order of mistrial to determine whether it was manifestly necessary, taking into consideration all circumstances. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). The deference we accord to the trial judge's finding of manifest necessity varies according to the circumstances, which circumstances include the basis for the order of mistrial and the trial judge's exercise of sound discretion in making the decision. Arizona v. Washington, 434 U.S. 497, 509-510, fn. 28, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

In our consideration of this matter, we must address a question of first impression before we can decide the propriety of the order of mistrial. Specifically, we must determine the impact of the district court's violation of Rule 26.3 in connection with the order of mistrial. Rule 26.3 provides: "Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives." Fed.R.Crim.P. 26.3. Without dispute, the trial judge did not comply with the mandate of Rule 26.3 prior to discharging the jury and declaring the mistrial.

While no circuit has specifically addressed the consequences of a Rule 26.3 violation, we have the benefit of significant guidance on this issue. Since Rule 26.3 "is not designed to change the substantive law governing mistrials," see FED.R.CRIM.P. 26.3 advisory committee's note, we appropriately begin by looking to that substantive law. In determining, and reviewing, whether a mistrial is properly granted, courts have long followed Justice Story's classic formulation:

[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstance, and for very plain and obvious causes....

Perez, at 580. More recently, the Supreme Court reiterated that "[t]his formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial." Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The broad spectrum of reasons for which a mistrial can be properly granted requires, and is accorded, an equally broad spectrum of levels of scrutiny when reviewing a determination of manifest necessity. As recognized in Washington, at one extreme, deserving the "strictest scrutiny," is the mistrial declared because of the "unavailability of critical prosecution evidence." 434 U.S. at 507-508, 98 S.Ct. 824.

At the opposite extreme, which extreme we face in this matter, "is the mistrial premised upon the trial judge's belief that the jury is unable to reach a verdict, long considered the classic basis for a proper mistrial." Id., at 509, 98 S.Ct. 824. When such mistrials are declared, the trial judge's decision is generally accorded great deference. Id., at 510, 98 S.Ct. 824. Justice Stevens explained the compelling reasons justifying this deference:

On the one hand, if [the trial judge] discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his "valued right to have his trial completed by a particular tribunal." But if he fails to discharge a jury which...