___________ Nos. 95-3760/3761/3762

___________ United States of America, * * Appellee, * Appeals from the United States * District Court for the v. * Eastern District of Missouri. * Kenneth Givens, Robert Turner, * and Guinn Kelly, * * Appellants, *

___________ Submitted: March 14, 1996 Filed: July 5, 1996

___________ Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.

Appellants contend that the district court improperly declared a mistrial a nd subjected them to double jeopardy by retrying them. Th e district court believed that manifest necessity required a mistrial in the defendants' first trial and therefore rejected appellants' claims of doubl e jeopardy. We reverse the judgment of the district court as to tw o defendants, affirm as to the other, and remand.

I. Kenneth Givens, Robert Turner, and Guinn Kelly were members of th e Saint Loui s Police Department who also worked as security guards at a federal housing project. They were accused of f alsifying their time cards to inflate the number of hours that it

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appeared that they worked at that project. At trial, Captain Harry Hagger , the defendants' supervisor at the police department, was called as a governm ent witness. Capt. Hagger testified about the policies of th e police department reg arding their officers' employment in part-time jobs, such as working as security guards. He was one of the prosecution's first witnes ses and it appears that the defendants were interested i n discrediting his testimony.
During Capt. Hagger's cross-examinat ion by Mr. Givens's attorney, C. John Pleban, Mr. Pleban approached the bench and described for the court a conversation that h e had had with Capt. Hagger during which no one else

was prese nt. Mr. Pleban said that Capt. Hagger had told him previousl y that Capt. Hagger suggested to Mr. Givens that Mr. Givens resolve th e problemof overstated hours on his time cards by putting in extra hours. Under Mr. Pleban's cr oss-examination, however, Capt. Hagger denied making any such suggestion to Mr. Givens. Mr. Pleban then informed the court tha t if, on further cross-examination, Capt. Hagger denied the substance o f their c onversation, Mr. Pleban might have to testify to impeach Capt

. Hagger. Counsel for Messrs. Turner and Kelly appeared to agree that they too wanted to elicit this testimony for purposes of impeachment.

The court outlined alternative courses of action and heard an d considered the arguments of counsel before decid ing to declare a mistrial. The court disqualified Mr. Pleban as Mr. Givens's attorney, and found as

a fact that Mr. Pleban's other attorney was unprepared to continue with th e trial. While Mr. Givens did not object to the disqualification or th e declaration of mistrial, Messrs. Turner and Kelly repeatedly objected to a mistrial and expressed their wish to proceed.

The defendants later moved to dismiss their indictment under th e Double Jeopardy Clause of the Fifth Amendment. In rejecting the motion, the court relied on the principles outlined in United

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States v. Allen , 984 F.2d 940 (8th Cir. 1993). After reviewing th e alternatives, the court held that mistrial was t he one least harmful. The district court believed that "by declaring the mistrial and giving th e defend ants an opportunity to call Mr. Pleban to provide possibl e impe achment testimony in the next trial, the Court has acted for th e benefit o f the defendants." The court declined to proceed with a tria l against Messrs. Turner and Kelly without Mr. Givens because there was a conspiracy count against all three defendants an d because there would have been "overwhelming" prejudice (presumably to the government) if a defendan t disappeared and his lead defense counsel took the stand to contradict a government witness. The court therefore conclud ed that there was manifest necessity for a mistr ial and denied the motion to dismiss the indictment.

II. We should note that the government describes this case as one r aising

a conflict-of-interest issue, but this characterization is not quit e apposi te. This is not, for example, a case in which an attorne y represented one defen dant and might have to cross-examine a former client who had turned state's evidence. See Wheat v. U nited States , 486 U.S. 153 (1988 ). Nor is it a case in which there was evidence that the attorne y himself was implicate d in his own client's wrongdoing. See United States

v. Marre n , 919 F.2d 61 (7th Cir. 1990). Instead of a conflict betwee n differ ent clients' interests or between a client's interests and hi s attorney's self- interest, the problem here is a conflict of courtroo m roles, of blurred dis tinctions between the roles of advocate and witness.

Mr. Pleba n created such a problem when he interviewed a witnes s without another person present. Local rules of the United States District Court fo r the Eastern District of Missouri (E.D. Mo. L.R. 2(G)(2) , superseded by L.R. 12.02), have adopted the Miss ouri Rules of Professional Conduct, which provide that a lawyer shall not act as an advocate at a trial in which the lawyer is

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likely to be a necess ary witness except where the testimony relates to an uncontested issue, th e testimony relates to the nature and value of legal services rendered in the case, or disqualification of the lawyer would wor k substantial hardship on the client. Missouri Supreme Court Rule 4, Rule 3.7. Whi le the district court conceivably could have made a finding o f hardship that would have enabled Mr. Pleban to testify and represent Mr. Givens, we believe that the court chose the better path in disqualifying Mr. Pl eban. (We note, too, that no one objected to Mr. Pleban' s disqualification.) The question then is whether Mr. Pleban's contemplated change from attorney to witness made the district court's declaration of mistrial a manifest necessity.

III. The Doub le Jeopardy Clause of the Fifth Amendment provides that n o person shall "be subj ect for the same offense to be twice put in jeopardy of life or limb." Retrying a defendant after a mistrial implicates double jeopardy b ecause jeopardy attaches when the first jury is sworn. Th e double jeopardy doctrine, however, does not prevent all retrials afte r jeopardy attaches. " The double-jeopardy provision of the Fifth Amendment

... does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an i nsuperable obstacle to the administration of jus tice in many cases in which there is no semblance of the type of oppressiv e practices at which the double-jeopardy prohibition is aimed." Wade v. H unter , 336 U.S. 684, 688-89 (1949). Double jeopardy will thus not bar retrial when the defendant's interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice, as, for instance, when an error occurred during th e proceedings that would require reversal on appeal, when a jury cannot reac h a verdict, or when it becomes apparent at trial that a member of the jury is biased against either the defendant or the government. See

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Illinois v. Somervill e , 410 U.S. 458, 463, 468-71 (1973); Wade v. Hunter , 336 U.S. at 689.

The S upreme Court has declined to lay down a rigid formula fo r evaluating these matt ers, but has instead adopted one whose value lies in its "capacity for informed application under widely differing circumstance s without injury to defendants or the public interest." Id. at 691. Retria l has therefore long been permitted whenever " taking all the circumstances into consideration , there is a manifest necessity for the act [o f mistrial], or the ends of public justice would otherwise be defeated, " Unit ed States v. Perez , 22 U.S. (9 Wheat.) 579, 580 (1824) (emphasi s added), but the level of necessity must be of a "high degree" before a mistrial may be declared. Arizona v. Washington , 434 U.S. 497, 506 (1978)

. "Under [this] rule a trial can be discontinued when particula r circ umstances manifest a necessity for so doing, and when failure t o discontinue would defeat the ends of justice." Wade v. Hunter , 336 U.S. at 690.

Mr. Givens did not specifically object to the declaration o f mistrial, and the trial court's finding that his other attorney wa s unprepared to continu e in Mr. Pleban's absence was not clearly erroneous. Objections at trial, however, were handled under an "opt-out" rule under which the objections of one defendant were consi dered to be the objections of all defendants unless a defendant opted out o f that objection. Messrs. Tur ner and Kelly both strongly objected to the declaration of mistrial , the rebypreserving their appeal on the double jeopardy issue, and thei r objections therefore must be attributed to Mr. Givens. But the court had

no optio n but to declare a mistrial as to Mr. Givens because his othe r attorney was unprepar ed to continue, and the court had decided, with good
reason, that Mr. Pleban could not serve simultaneously as both attorney an d witne ss. The mistrial declaration as to Mr. Givens was therefor e manifestly necessary.

### -6- Me ssrs. Turner and Kelly, however, maintain that the cour t impermi ssiblydeclared a mistrial as to them for purposes of judicia l economy. Indeed, the record indicates that the court and the government want ed to try these defendants together on all counts for efficienc y
rea sons, and the trial court in fact referred to the existence of th e conspiracy count as one reason for declining to sever the trial. Judicial economy, however, is not a proper basis for a finding of manifes t necessity, see, e.g. , Allen , 984 F.2d at 942; United States v. Dixon , 913 F.2 d 1305, 1315 (8th Cir. 1990), and considerations of judicial economy appear to have playeda substantial role in the district court's decision to declare a mistrial rather than sever.

Messrs. Turner and Kelly also argue that the district court faile d correctl yto weigh the prejudice to them that would result from a declar ation of mistrial, and, indeed, many relevant cases emphasize th e Fifth Amendment's function of protecting the defendant. The Fift h Amendment encompasses the "valued right" to have one's case decided by a particul ar jury impaneled for that purpose. See, e.g. , Arizona v

. Washington , 434 U.S. at 503; United States v. Ford , 17 F.3d 1100, 1102 (8t h Cir. 1994); Dixon , 91 3 F.2d at 1309-10. The right to be free from double jeopardy is of great significance for several reasons: "Even if the first trial is not completed, a second prosecution may be grossly unfair. I t increases the financi al and emotional burden on the accused, prolongs the pe riod in which he is stigmatized by an unresolved accusation o f wrongdoing, and may even enhance the risk that an innocent defendant may be c onvicted." Arizona v. Washington , 434 U.S. at 503-04 (footnote s omitted). These are serious considerations in d eciding whether to declare a mistrial.
Other relevant cases, by contrast, emphasize the harm that can befall the government or the factfinding process by failing to declare a mistrial

. Indeed, in our case the court and the government were very concerned about the potential effect on the

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jury of the changing role of Mr. Pleban and the disappearance of Mr. Given s as a defendant, and the government has cited a c ase holding that declaring

a mistr ial under somewhat analogous circumstances was not an abuse o f discretion

. See United States v. Arrington , 867 F.2d 122, 125-26 (2 d Cir.), cert. denied , 493 U.S. 817 (1989). In Arrington , the governmen t asserted during trial that one of the defense attorneys had coerced th e government's confidential informant into recanting his anticipate d testimony. Counsel for the other defendants stated their intention o f calling that attorney to testify, presumably regarding the inconstancy of the informant. The district court declared a mistrial in light of th e attorney's anticipated transition from advocate to witness. On appeal, th e Second Circuit noted the potential effect of the attorney's dual role as both witness and advocate, and worried that such a performance could s o blur the line between argument and evidence as to undermine the jury' s ability to find the facts properly. The court c oncluded that the mistrial was an appropriate exercise of discretion becaus e of the unlikelihood that a jury could differen tiate between counsel's role as witness and his role

as ad vocate. "Once a jury sees an attorney take an oath on the witnes s stand, it may accord testimonial weight to that which he has argued, or it may place undue weigh t on the testimony of an officer of the court." 867 F.2d at 126 (citation s omitted). Arrington thus emphasizes the potential prejudice to the government and the factfinding process.

The man ifest necessity standard does not require us to look at th e mistrial dilemma from a single point of view. It is a flexible standard which s eeks fairness to the defendant, the government, and the publi c interest alike. See, e.g. , Wade v. Hunter , 336 U.S. at 691; Perez , 22 U.S

. at 580. The dispute at hand therefore requires us to consider both th e defendant's right to be free from the burdens of a mistrial as well as the possibility that the jury's factfinding ability might be compromised by an unusual and confusing twist at trial. While Arrington makes a good case for

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the po tentially confusing effect that an attorney's changing role migh t have on a jury, we be lieve that we must also give at least as much weight to the act ual prejudice to the defendants whom the government and th e dist rict court wanted to subject to another trial. In addition, th e dist rict court and the government offer little insight (other than a limited amount of con jecture) into the nature and extent of any prejudice to eithe r side of allowing Mr. Pleban to testify. While we accord th e highest degree of respect to a trial judge's finding of juror bias as a basis for a mistrial, see Arizona v. Washington , 434 U.S. at 513-14, this is not a case in which any member of the jury was suspected of harboring an actual bias. The trial court's speculation about the possible effects of a change in role by a trial attorney is not entitled to any particular deference, nor do we think, on balance, that tho se effects would have been sub stantial. See Allen , 984 F.2d at 942 ("Practical considerations an d specu lation ... cannot serve as a basis for manifest necessity."). I t seems to us particularly unlikely that the preju dice would have been large in this instance because Mr. Pleban's testimony would have been relevant only to a collateral issue, namely, the credibility of one governmen t witness.

We offer some comments on Allen , sup ra , regarding the standards that it adopted and which the district court applied in this case. The Allen court listed four considerations from United States v. Bates , 917 F.2d 388 , 395-96 (9th Cir. 1993), but ultimately relied ononly one, namely, whether the mistrial declaration would benefit the defendant. Allen appeared to find a lack of manifest necessity in "the fact that it was uncertai n whether Allen would benefit from the mistrial." 984 F.2d at 943. Thi s intimates that the Fifth Amendment requires that all mistrial declarations must benefit the defendant. But Bates simply explains that mistria l declarations made for the defendant's benefit are treated favorably becaus e double jeopardy does not forbid retrial where a mistrial has been granted for the defendant's benefit. Id.

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at 943 (quoting Gori v. United States , 367 U.S. 364, 369 (1961)). A lack of benefit to the defendant, however, does not automatically mean tha t retrial i s barred, because, just to name a few examples, retrial i s permitted where the jury is unable to reach a ve rdict or a juror is biased toward the government, despite the lack of obvious benefit to the defendan t fromretrial in such circumstances. See, e.g. , Wade v. Hunter , 336 U.S. at 689.

In sum, w e believe that the nature of the prejudice, if any, to the jury's ability to giv e proper weight to an advocate or a witness pales in comparison to the prejudice to the defendants of facing a retrial. W e believe that a cautionary instruction to the jury would have almos t cert ainlyundone any potential prejudice to the government, especiall y since Mr. Pleban had not been representing Messrs. Turner and Kelly. It is even possible that the jury, far from drawing inferences against th e government from Mr. Pleban's testimony, might have discounted it because of his former role as an advocate for one of the defendants. The district court erred in weighing the alternatives less drastic than mistrial , particularly in rejecting the more favorable alt ernative of severance, and in relying on forbidd en considerations of judicial economy in declaring a mistrial. This case could have been severed andtried to a result without offending the interests of justice. "While it i s regrettable when serious charges of criminal conduct go untried, such a r esult is necessary in this case to protect the r ight of all citizens not to be twice put in jeopardy for the same offense, a right `that was dearly won and one that shoul d continue to be highly valued.'" Dixon , 913 F.2dat 1315 (quoting Green v. United States , 355 U.S. 184, 198 (1957)).

IV. For the foregoing reasons, we reverse the judgment of the distric t court as to Messrs. T urner and Kelly, affirm as to Mr. Givens, and remand for further proceedings consistent with this opinion.

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Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.