United States v. Dennison

• Decision Date: 09 September 2022
• Docket Number: 2:21-cr-00149-JDL-1
• Parties: UNITED STATES OF AMERICA v. BRIAN DENNISON, Defendant.
• Court: U.S. District Court — District of Maine

UNITED STATES OF AMERICA v. BRIAN DENNISON, Defendant.

No. 2:21-cr-00149-JDL-1

United States District Court, D. Maine

September 9, 2022

ORDER ON DEFENDANT'S MOTION TO DISMISS

JON D LEVY, CHIEF U.S. DISTRICT JUDGE.

Brian Dennison is charged in a single-count indictment (ECF No. 17) with transmitting a threatening interstate communication in violation of 18 U.S.C.A. § 875(c) (West 2022). Dennison's jury was empaneled on May 3, 2022, and the jury was sworn and the trial began on May 24, 2022. Approximately three hours after the start of the trial, a mistrial was declared after the Court learned that one of the witnesses, the Government's case agent, had tested positive for COVID-19 during the morning recess, which was held after he had begun his testimony. On June 29, 2022 Dennison moved to dismiss the indictment (ECF No. 132) asserting that a retrial would violate his right under the Double Jeopardy Clause of the Fifth Amendment not to be tried twice for the same crime. Dennison contends that there was no manifest necessity to declare a mistrial, and that double jeopardy bars a second trial. The Government argues that manifest necessity supported the declaration of the mistrial, and double jeopardy does not apply. After careful consideration, I deny Dennison's motion.

I. BACKGROUND

Throughout the COVID-19 pandemic, the U.S. District Court for the District of Maine has operated in accordance with a series of General Orders intended to protect public health and safety in connection with the Court's ongoing operations. One such order, General Order 2021-6, sets forth the District's Courthouse protocols regarding masking, testing, entry, and physical distancing requirements in effect during the period relevant to Dennison's case. See General Order 2021-6, General Order Regarding Masks, Courthouse Entry, and Physical Distancing Requirements (amended May 20, 2022), available at https://www.med.uscourts.gov/active-general-orders-regarding-covid-19-pandemic. Specifically, the General Order requires that all persons involved in jury trials wear a qualifying face mask but that a party, attorney, or witness may remove their mask while speaking during the trial if they are fully vaccinated and receive a negative result from a rapid antigen test taken on the day of the proceeding. General Order 2021-6(2)(b), (h). In addition, the General Order provides that individuals who have tested positive for COVID-19 within the previous ten days are not permitted to enter the Courthouse while they are required to isolate per CDC guidance. General Order 2021-6(3)(b). The General Order does not mandate COVID-19 testing as a condition for entering the Courthouse.

Brian Dennison was charged with transmitting a threatening interstate communication, 18 U.S.C. § 875(c), after he allegedly posted on Twitter that he was “going to kill jews with [his] ¶ 15 tomorrow.” ECF No. 17 at 1. Dennison's trial was specially scheduled for a three-day period beginning Monday, May 23, 2022, to be held in two of the three courtrooms in the Courthouse in Portland, with the trial itself to be held in one courtroom, and the second courtroom serving as the jury's assembly and deliberation room. At that time, as a COVID-19 precaution, the Courthouse's third courtroom and its three jury deliberation rooms were closed and not being used.^[1]Dennison's jury trial was specially scheduled by the Court on April 11, 2022, to begin on May 23, 2022, and to be held over three days. See ECF No. 57. The Notice of Hearing issued on April 11 directed that “Counsel should review Amended General Order 2021-6 regarding Masks, Courthouse Entrance Protocols, Social Distancing and Testing.” Id. A case management conference was held on April 20, 2022, at which time counsel for both sides reiterated that the trial would be completed in three days. No changes were made to the trial schedule. Prospective jurors were informed that the trial was estimated to take three days, and Dennison's jury was empaneled on May 3, 2022. A second Notice of Hearing was issued May 17, 2022, which again directed that “Counsel should review Amended General Order 2021-6 regarding Masks, Courthouse Entrance Protocols, Social Distancing and Testing.” ECF No. 90.

On Sunday, May 22, the Government sent an email to the Court requesting that the presentation of evidence be delayed from Monday, May 23, until Tuesday, May 24, because its first witness was experiencing travel difficulties. Dennison consented to the delay. On Monday, May 23, 2022, counsel for both parties affirmed that the trial could be completed in two days rather than the three originally estimated. I then reminded counsel that the case would need to be fully tried during the two remaining allotted days, emphasizing: “I will say it again. We have two solid days for trial, and this case will be tried in two solid days.” ECF No. 127 at 36:2437:1.

The next morning, the jurors were sworn, and the trial began with opening statements, followed by the testimony of the Government's two out-of-state witnesses. The Government's third witness was U.S. Border Patrol Agent Jonathan Duquette. Agent Duquette was assigned to the FBI as a Task Force Officer and, as the case agent responsible for the case, was present in the courtroom at counsel table from the start of the trial. In his opening statement, the prosecutor had represented that Duquette would testify to several important matters, including his conversation with Dennison, the execution of three search warrants, the discovery of evidence of antiSemitism and of the Twitter threat at Dennison's residence, and the seizure of ammunition and electronic devices from Dennison's residence. The prosecutor had also indicated that the Government would introduce its exhibits, including photographs and physical evidence-which included rounds of ammunition and a rifle-through Duquette.

Duquette wore a mask throughout the morning, including when he assumed the witness stand to testify. Approximately fifteen minutes after the start of his testimony, the trial was recessed for a fifteen-minute morning break. After the jurors left the courtroom, I reminded counsel “that under the court's COVID protocols witnesses who are vaccinated and have taken a test and received a negative result the day of their testimony are permitted to remove their masks if they wish to. That's up to them. But I ask, counsel, that you inform witnesses of that [alternative] if you want them to remove their masks.” ECF No. 128 at 85:16-22. In response, the prosecutor explained that Duquette had not been tested and, as a result, had worn his mask while testifying because “[w]e were under a misimpression that witnesses would be able to remove them regardless of status, and so that's our fault for not realizing what the policy was.” ECF No. 128 at 85:23-86:1.

After the recess and having resumed the bench, I ruled on an evidentiary objection that the attorneys had argued prior to the recess. I was then notified by the Clerk's Office that Duquette had taken a rapid antigen test during the recess and had tested positive for COVID-19. I informed counsel and explained that “first of all, the Court's general orders don't anticipate a situation like this. And I'm required to weigh not only the interests of the court generally in terms of the protection of the public but also the interests of the defendant and the Government at stake during the course of this trial.” ECF No. 128 at 95:5-10. I then observed that “[k]nowing that we can isolate Mr. Duquette physically, everyone can keep ample distance from him, it seems to me there is very low risk associated with having him testify wearing a mask. And so I'm inclined to permit him to continue to testify, even though we received this report.” ECF No. 128 at 95:11-15. I then invited the parties to be heard on the issue.

Both the Government and Dennison confirmed that they wished to proceed, but the prosecutor noted that, under the Court's General Orders, Duquette would not be permitted to re-enter the Courthouse once he departed, “which obviously would pose a significant problem for the Government given his role in this case” as the Government's case agent. ECF No. 128 at 95:22-24. Defense counsel then stated, “I perceive this as a real problem primarily because I'm seated next to Mr. Duquette, close enough anyway, and I have very good reasons to -- I have a daughter who's eight and a half months pregnant. So I'm not sure how the Court wants to handle this.” ECF No. 128 at 96:2-6. Defense counsel also raised the same potential problem with the Court's General Order that the prosecutor had referred to: “You know if Mr. Duquette is --leaves and then he can't be called back, that's if he needs to be, and I have no idea if he does, I just think we need to think about all of the potential ramifications.” ECF No. 128 at 96:8-11. After Dennison and his attorney conferred, the defense attorney stated that “we certainly wish to go forward with this trial” because “[w]e're in the middle of it,” and he suggested that Duquette be required to wear an N95 mask or equivalent and not be seated near others, and he concluded: “But we are not adverse to going forward as long as steps are taken to insulate people.” ECF No. 96:21-22, 97:5-7. The prosecutor also confirmed that the Government wished to proceed and that they could continue in Duquette's absence even though he was the case agent, so long as Duquette was permitted to finish testifying. I then announced that we would take a recess “to give this additional thought.” ECF No. 128 at 97:23-34.

Following the recess, and after having weighed the circumstances in relation to the Court's General Orders and Rule 26.3 of the Federal Rules of Criminal Procedure, which addresses...