United States v. Scott
| Decision Date | 22 August 2014 |
| Docket Number | Case No. 4:13–CR–394–SLB. |
| Citation | 43 F.Supp.3d 1243 |
| Parties | UNITED STATES of America v. Phillip Don SCOTT. |
| Court | U.S. District Court — Northern District of Alabama |
Joyce White Vance, U.S. Attorney, U.S. Attorney's Office, U.S. Probation, United States Probation Office, USM, United States Marshal, Birmingham, AL, Laura D. Hodge, U.S. Attorney's Office, Huntsville, AL, for United States of America.
This case is before the court on the Government's Amended Motion for Mistrial, (doc. 64),1 and defendant's objections to it, (see doc. 66 & 67). The court will also address the potential barriers to reprosecution.2 For the reasons stated below, the court will declare a mistrial and sees no bar to reprosecution in this case.
The jury panel from which this jury was selected had originally been called to report for service on May 5, 2014, for a two-week term of court. Their reporting date was continued to May 12, 2014, then to May 13, 2014. The jury was sworn and seated before the lunch recess, during which defendant, complaining of dizziness, went to the emergency room. He spent the next several hours undergoing testing and treatment for extremely high blood pressure
. The jury was directed to return at 10:00 a.m. the following morning, May 14, 2014. At 9:00 a.m. that morning, the court had the defendant submit to drug testing by his probation officer, and defendant tested positive for methamphetamine.3 (Doc. 71, Excerpt of Transcript of Trial on May 14, 2014 at 3.) When asked by the court how he felt, defendant stated that he felt “kind of clammy and sweaty.” (Id. at 6.) Defendant was remanded to the custody of the United States Marshal and taken to the Calhoun County Jail. After examination, the nurse at the jail advised that defendant's blood pressure was 183 over 115, that the nurse felt defendant was impaired, and it would take four to five days for him to detox. (Id. at 8.) The court then continued the trial to May 27, 2014. At that time one of the selected jurors indicated that it would be an extreme hardship for him to return at that time, as he was self-employed and had lost significant earnings due to the repeated extensions of the jury term date. The juror had been “very upset and did not have a good attitude about continuing to serve.” (Doc. 72, June 12, 2014 Transcript at 26:15–19.) The court excused him. While the remaining twelve jurors indicated they could return on May 27th, there was some degree of frustration noted as to the extensions of their service.
At the time the jury was originally seated, the government's first witness, a Drug Enforcement Agency toxicologist who had tested the alleged controlled substances in this case, was at the courthouse ready to testify. However, on May 22, 2014, the toxicologist informed the Assistant United States Attorney that her physician had determined that her pregnancy with twins was “high risk” and she was no longer able to travel from her home in Texas to Alabama to testify. As a result, the alleged controlled substances would need to be resubmitted to the DEA laboratory in Dallas, Texas, for testing by another toxicologist who would then be able to travel to Alabama to testify at trial. This process would take approximately two weeks.
On May 23, 2014, the jury was advised that they should not report on May 27, 2014, that the case had been postponed and a new date had not yet been determined. The government moved for a mistrial so that it could have another expert retest the alleged controlled substances at issue in this case and testify as to the results. (Doc. 64.) The court was initially inclined to continue the trial instead. (See doc. 72, June 12, 2014 Transcript at 5:3–11.)
The court asked its Jury Administrator to call the jurors to see the first date they were all available. One juror had a prepaid out-of-state vacation set for June 16, one for June 23. (Doc. 72, June 12, 2014 Transcript at 3; doc. 68–1.) One Juror had a family reunion to attend, another had an out-of-town baseball tournament for her child on June 30. (Id. ) The court was unavailable the week of July 7. (Doc. 72, June 12, 2014 Transcript at 7.) One juror was unavailable the week of July 14. (Id. ) One juror had a prepaid out-of-state vacation from July 19–30. (Doc. 68–1.) In the end “there[ was] not a date that all 12 jurors [were] available.” (Doc. 72, June 12, 2014 Transcript at 30:16–18). One juror was moving to Atlanta, Georgia, the week of July 28, to begin graduate school. (Id. at 23:4–5). The only way defendant could be tried by members of the original jury, other than by haling at least one juror into court long after the juror's original term of service had expired and causing him or her hardship, was for the defendant to consent to a trial by eleven. Defendant and his attorney discussed this possibility, and the court gave defendant a few additional days to consult his family. (Id. at 33.) The court specifically advised defendant that if he did not consent, the court would declare a mistrial and the question of double jeopardy would arise, but that the court would deny a motion to dismiss the indictment. (Id. at 31–32.)
As was his right, defendant did not consent to trial by eleven. (Doc. 67.)
The Fifth Amendment's prohibition against any person “being twice put in jeopardy of life or limb” for the same offense “represents a fundamental ideal in our constitutional heritage.” Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). To that end, once a jury is empaneled and sworn and then a mistrial declared without the defendant's consent, see United States v. Dinitz, 424 U.S. 600, 607–610, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), the defendant ordinarily may not be retried for the same offense unless, “for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice [could not have] be[en] attained without discontinuing the trial,” Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). This determination has been summed up as a finding of “manifest necessity.” See, e.g., Illinois v. Somerville, 410 U.S. 458, 462–63, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Although “it is impossible to define all the circumstances” that would qualify, United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824), some common ones are well-established: mistrials resulting from a hung jury, id., a severance and mistrial declared after a “defendant exercises his privilege against self-incrimination and a co-defendant's attorney will make prejudicial comments about his privileged silence,” United States v. Aguiar, 610 F.2d 1296, 1301 (5th Cir.1980), or an error “mak[ing] reversal on appeal a certainty” and thus continuation a useless formality, Somerville, 410 U.S. at 464, 93 S.Ct. 1066. Also well-established are some insufficient circumstances: those promoting mere convenience or judicial economy, United States v. Butler, 41 F.3d 1435, 1441 (11th Cir.1995) ; United States v. Chica, 14 F.3d 1527, 1532–33 (11th Cir.1994), or when no consideration was given to a legitimate possibility of providing a continuance instead of abruptly declaring a mistrial, United States v. Jorn, 400 U.S. 470, 487, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).
This case presents two questions: (1) whether by declining to stipulate to a jury of eleven, a defendant may, in some cases, be presumed to consent to a declaration of mistrial, eliminating the Double Jeopardy concern consistent with Dinitz, 424 U.S. at 608–609, 96 S.Ct. 1075 ; if not, (2) whether manifest necessity to declare a mistrial exists.
In United States v. Davis, 708 F.3d 1216 (11th Cir.2013), after a twelve-member, no-alternate jury was empaneled and sworn, two jurors informed the court that they might not be able to serve: one because she was an hourly employee who estimated that she would lose $1,000 to jury duty, one because she could not understand English very well. Id. at 1218–19. The court excused the jurors, Davis did not consent to trial by ten or suggest swearing in additional jurors,4 and the court declared a mistrial. Id. at 1220. The court of appeals noted that “the removal of the jurors alone did not cause the mistrial” because Davis could have consented to a smaller jury. Id. at 1222. Nevertheless, the court “indulg[ed] Davis' premise that his insistence on a jury of twelve does not matter,” leaving the first question in this case—whether this insistence does matter—open. This court holds that by exercising his right to a jury of twelve persons, under the facts of this particular case, defendant is deemed to have elected to terminate the first trial, thereby forfeiting any Double Jeopardy objection to retrial. Stated differently, the court deems defendant to have waived the right to object to reprosecution.
Defendant explicitly objected to a declaration of mistrial here. (See doc. 66.) Dinitz held that, with one exception,5 “mistrials granted at the defendant's request or with his consent” do not give rise to a Double Jeopardy problem. 424 U.S. at 608–09, 96 S.Ct. 1075. Allowing reprosecution after a defendant's successful motion for mistrial is itself a logical product of “deem[ing]” the defendant to have waived the right to object to reprosecution (except when the government intentionally “ ‘goad[s] the [defendant] into requesting a mistrial’ ”). Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (quoting Dinitz, 424 U.S. at 611, 96 S.Ct. 1075 ); see also United States v. Miller, 742 F.2d 1279, 1284 (11th Cir.1984) (). In Dinitz, when the trial judge banned one of defendant's attorneys from the courtroom during trial after the attorney made inappropriate...
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