U.S. v. Charlton

• Decision Date: 10 August 2007
• Docket Number: No. 06-2256.,06-2256.
• Citation: 502 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Trevor CHARLTON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

502 F.3d 1

UNITED STATES of America, Appellee, v. Trevor CHARLTON, Defendant, Appellant.

No. 06-2256.

United States Court of Appeals, First Circuit.

Heard June 5, 2007.

Decided August 10, 2007.

Judith H. Mizner, for appellant.

Robert E. Richardson, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LIPEZ and NEWMAN^*, Circuit Judges, and SELYA, Senior Circuit Judge.

NEWMAN, Circuit Judge.

Mr. Trevor Charlton was indicted on the single count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1):

(g) It shall be unlawful for any person —

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to possess in or affecting commerce, any firearm or ammunition. . . .

Trial was held, and the district court declared a mistrial after ruling that the jury was hopelessly deadlocked; the court scheduled a retrial. United States v. Charlton, No. 1:04-cr-10306-PBS (D. Mass. June 12, 2006). Mr. Charlton moved to dismiss the indictment on the ground of violation of the double jeopardy clause of the Fifth Amendment.¹ The district court denied the motion, and this appeal followed. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (denial of a motion to dismiss on double jeopardy grounds is a final decision within the meaning of 28 U.S.C. § 1291); United States v. Keene, 287 F.3d 229, 232 (1st Cir.2002) (the defendant may take an immediate appeal from an interlocutory order in a criminal case when he presents a colorable claim that further proceedings will constitute double jeopardy, such as when the defendant claims that the district court should not have declared the jury hopelessly deadlocked).

On review of the proceedings, we affirm the district court's rulings.

BACKGROUND

The events leading to Mr. Charlton's arrest are generally undisputed, and their substance is not at issue on this appeal. In brief, on the evening of July 25, 2004 the police in Brockton, Massachusetts were investigating an incident and were given a description of the persons involved, including a man who had taken a taxi to 37 Ellsworth Street. At Ellsworth Street the police found five men including Mr. Charlton. A white shirt was on a cement pillar near where Mr. Charlton was standing, and wrapped in the shirt was a loaded firearm. Mr. Charlton told the police that earlier that evening he had stabbed a man who had assaulted him, and that he was concerned about possible "problems."

The sole count of the indictment, and the only question of the trial, was whether Mr. Charlton was in "possession" of the firearm in terms of 18 U.S.C. § 922(g)(1). The proceedings commenced on Monday, March 13, 2006, the trial consumed about seven hours, and the case was submitted to the jury during the morning of Thursday, March 16. At about noon on Thursday the jury requested the police report of Mr. Charlton's statement; the report had been the subject of testimony but had not been introduced in evidence. The jury was told that it could not be provided. The jury continued its deliberations all day on Thursday.

The next morning, Friday, March 17, the jurors submitted three questions: (1) whether they could have a written copy of the jury instructions; (2) whether they could have a dictionary; and (3) whether it is illegal for a person convicted of a crime punishable by more than one year in prison to possess a firearm. The judge consulted with counsel, and then told the jury (1) that a transcript of the jury instructions would be prepared and provided, and meanwhile the jury should continue to deliberate; (2) that a dictionary would not be provided; and (3) that the answer to the third question is "yes" provided that the government proves the elements of the crime beyond a reasonable doubt. At mid-morning the jury submitted another question concerning a government exhibit, and the judge responded that the court could not comment on the evidence. At 11:10 a.m. on Friday the jurors reported that they "have reached an impasse."

The district court proposed giving the jury a charge pursuant to Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Mr. Charlton's counsel asked that the Allen charge not be given, and that the jury simply be instructed to continue to deliberate. The district court followed the procedure requested by Charlton's counsel.

At 4:39 p.m. on Friday the jury again stated that it "remain[ed] deadlocked on the same issue." The jury had deliberated for a total of thirteen hours. Government counsel again asked that the Allen charge be given, and defense counsel again opposed it, arguing that it was too late in the day on a Friday. The district court decided to proceed with the Allen charge, and read to the jury the Modified Allen Charge of the First Circuit Pattern Jury Instructions², as follows:

I am going to instruct you to go back and resume your deliberations. I will explain why and give you further instructions. In trials, absolute certainty can neither be expected or attained.

You should consider that you are selected in the same manner and from the same source as any future jury would be selected. There is no reason to suppose that this case would ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it than you, or that more or clearer evidence would be produced in the future. Thus, it is your duty to decide the case if you can conscientiously do so without violence to your individual judgment.

The verdict which a juror agrees must of course be his or her verdict, the result of his or her own convictions, and not a mere acquiescence in the conclusions of his or her fellow jurors. Yet, in order to bring twelve minds to a unanimous result, you must examine the question submitted to you with an open mind and with proper regard for and deference to the opinion of the other jurors.

In conferring together, you ought to pay proper respect to each other's opinions, and you ought to listen with a mind open to being convinced by each other's arguments. Thus, where there is disagreement, jurors favoring acquittal should consider whether a doubt in their own mind is a reasonable one when it makes no impression upon the minds of the other equally honest and intelligent jurors, who have heard the same evidence with the same degree of attention and with the same desire to arrive at the truth under the sanction of the same oath.

On the other hand, jurors favoring conviction ought seriously to ask themselves whether they should not distrust the weight or sufficiency of evidence which fails to dispel reasonable doubt in the minds of the other jurors. Not only should jurors in the minority reexamine their position, but jurors in the majority should do so also, to see whether they have given careful consideration and sufficient weight to the evidence that has favorably impressed the people in disagreement with them.

Burden of proof is a legal tool for helping you to decide. The law imposes upon the prosecution a high burden of proof. The prosecution has the burden to establish with respect to each count each essential element of the offense and to establish that essential element beyond a reasonable doubt. And if with respect to any element of any count you are left in reasonable doubt, the defendant is entitled to the benefit of such doubt and must be acquitted.

It is your duty to decide the case if you can conscientiously do so without violence to your individual judgment.

The court also told the jury:

I want you to go back and talk seriously about whether or not you can come back Monday with a fresh mind after a long weekend and try to resume deliberations based on this charge.

The jury told the court that it would continue deliberations on Monday.

On Monday morning the jury sent the court two questions at about 10:00 a.m.: (1) whether the jury could consider the defendant's presumed ignorance of the law under which he was being prosecuted, and (2) whether "knowing" could be separated from "possession." After consultation with counsel, the court answered both questions in the negative. At 11:32 a.m. the jurors sent a note stating that they are "deadlocked and cannot reach a unanimous verdict."

The government asked the court to declare a mistrial, observing that the jury had declared itself deadlocked three times; defense counsel asked that the jury be told to continue deliberating until the end of the day on Monday. The district court declared a mistrial over defense counsel's objections, and polled the jurors to confirm the deadlock. Mr. Charlton's motion to dismiss the indictment was denied by the court in a written opinion explaining the court's conclusion that the jury was hopelessly deadlocked.

DISCUSSION

Mr. Charlton points out that "[t]he right not to be put twice to the bar is of a very high order," United States v. Hotz, 620 F.2d 5, 6 (1st Cir.1980), and argues that the district court abused its discretion by declaring a mistrial when "manifest necessity" had not been shown. He points out that the jury continued to ask questions and review the evidence after the first two declarations of deadlock, and argues that in view of Charlton's objection the jury should have been permitted and required to continue to deliberate at least until the end of the day on Monday. He states that this "premature" declaration of a mistrial shows that the district court failed to explore adequately and exhaust the alternatives to mistrial, and that the double jeopardy clause bars retrial when a mistrial was improperly declared.

Mr. Charlton stresses his right to have his guilt or innocence decided by the jury at a single trial; he stresses the right not to be subjected to continued trials after a jury has failed to convict. In Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54...