Of the United States Court of Appeals for the Federal *

Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 05-1183

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT BROWN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Torruella, Dyk, and Howard, Circuit Judges. *

Robert C. Andrews for appellant.

Michael J. Conley, Attorney with whom Paula D. Silsby,

United States Attorney and F. Mark Terison, Senior Litigation

Counsel, were on brief, for appellee.

October 14, 2005
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HOWARD, Circuit Judge. Robert Brown appeals the district

court's refusal to dismiss his indictment on double jeopardy

grounds following a trial that ended in a hung jury. Brown

contends that, although the jury was unable to reach a unanimous

verdict, the court abused its discretion by declaring a mistrial

before it had explored all of the potential alternatives.

Accordingly, Brown argues, the government failed to establish the

"manifest necessity" of declaring a mistrial. We affirm.

I.

Brown was charged with a single count of distribution of

cocaine. See 21 U.S.C. § 841(a)(1). The government's case --

which primarily consisted of testimony from David Pease, a

confidential informant who testified that Brown had sold him the

cocaine, and Daniel Rousseau, a Special Agent of the Drug

Enforcement Administration who testified that Brown had confessed

to giving the cocaine to Pease -- was completed by early afternoon

on the trial's first day. On the morning of the second day, the

defense called Robert Yankowsky, who testified that it was he, not

Brown, who had unwittingly transferred an envelope containing the

cocaine to Pease. Closing arguments were presented that same

morning. The defense argued that the government's entire case

relied on Pease's testimony and that Pease, an admitted drug user

who was cooperating with the police in return for leniency in his

own criminal proceedings, was not a credible witness.
All of the jury's notes were signed by the foreperson. 1

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After receiving instructions, the jury retired to

deliberate early that afternoon. Four hours later, and after the

court had already received four notes from the jury concerning

testimony and evidence, the court received the following note from

the jury: "We are not close to a decision at this time and have

members that need to make calls for child care. We also would like

a sense of how long we will be required to deliberate prior to

breaking for the evening." After consulting with counsel, the 1

court instructed the jury to continue deliberations for at least

one more hour. An hour later, the jury sent a second note stating

that it was unable to reach a unanimous verdict and would like to

recess for the evening. The court granted the request.

Deliberations resumed the next morning, the third and

final day of the trial. At 10:29 a.m. the court received the first

note indicating that the jury might be deadlocked: "We are 11-1

and unable to move despite hours of work. Where do we go from

here?" The court elicited proposals from counsel. The government

requested an Allen charge, see Allen v. United States, 164 U.S.

492, 501 (1896) (upholding the practice of using a supplemental

jury instruction to help a deadlocked jury reach unanimity), but

defense counsel expressed concern that such an instruction might

exert undue pressure on the minority juror. The court agreed and

sent a note simply urging the jury to continue deliberations. An
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hour later, the jury requested and obtained a read-back of Pease's

and Yankowsky's testimony. At 2:11 p.m., the jury sent a second

note expressing deadlock: "We have one juror indicating a complete

unwillingness, for any reason, to change his vote. Where do we go

from here?" Again the court sought suggestions from counsel, and

again the government requested an Allen charge. This time defense

counsel concurred with the government's request and the court

delivered a modified Allen charge.

An hour-and-a-half after deliberations had resumed, the

court, concerned by the lack of progress and a worsening snow

storm, summoned counsel to discuss the next course of action. The

government requested that the court do nothing for at least another

hour. Defense counsel announced concern about the weather and that

the jury had deliberated for a long time. He suggested that the

court inquire whether any progress was being made. The court

agreed and sent a note to the jury in accord with defense counsel's

request. 

At 4:04 p.m., the jury responded with a third note

expressing impasse: "The juror who is not in agreement has advised

we are not making any headway in convincing him of our position."

The court turned to counsel, and the government suggested for the

first time that a mistrial might be appropriate. Defense counsel

argued that for a mistrial to be appropriate "we need to get the

jury to come to a position where it says that it is, in fact,
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hopeless." Agreeing with defense counsel, the court suggested

sending a note asking whether there was "any chance of reaching a

verdict in this case?" Defense counsel endorsed the court's

proposed note, and it was sent to the jury. 

The response, the final note from the jury, read: "As I

do not believe the juror not in agreement is basing his decision on

evidence, but on his own 'issues,' a verdict is not likely." When

the court asked defense counsel whether he had any other ideas,

counsel requested an instruction specifically aimed at the holdout

juror "requiring him to view the evidence." The following colloquy

ensued:

THE COURT: I'm not going to do that.

I'm not going to instruct a juror who is

holding out -- that's undue force on a juror,

I believe. I don't think that's appropriate.

Everybody has a right, obviously, to

view the evidence. That's what I told them in

the Allen charge. To point out to one juror

that they have to do that, I don't think it's

appropriate.

Another alternative?

[DEFENSE COUNSEL]: I have no other

alternative. I don't want a mistrial in this

case.

THE COURT: And what do you suggest?

[DEFENSE COUNSEL]: If you can't come to

a verdict, the only other option is a motion

to dismiss it or acquittal, or for you to

declare a mistrial.

I don't want to agree to a mistrial.

Obviously if it's hopeless, the jury has

indicated it is, I guess the final decision is

up to you.
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THE COURT: Alright. Government?

* * *

[GOVERNMENT COUNSEL]: I think, unless

the Court feels that questioning this

particular juror would be helpful --

THE COURT: I am concerned about doing

that. I think that puts a lot of pressure on

one juror to change an opinion that juror may

honestly hold, especially when the Judge is

squeezing that juror to look at things

differently. I know what that jury is

thinking, and the Judge's forcing me to change

my mind, and I don't think that's right. I

won't.

[GOVERNMENT COUNSEL]: No other

suggestion. I would defer to the Court.

THE COURT: I'm going to declare a

mistrial on this. I believe that the jury is

hopelessly deadlocked here. It's plain as

day, as the notes that we've received.

Nothing has happened for a considerable period

of time in terms of any progress.

The situation is simply that one person

has a strongly held opinion, and they have

indicated, as in the last note, they are not

going to move and there is no need to continue

this.

So I believe that the jury is

deadlocked, and I believe it's manifest that a

mistrial be declared, and I'm going to declare

a mistrial in this case and reschedule this

for trial, another trial. 

Before declaring a mistrial, the court called the jury

back to the courtroom. The court then asked, first of the

foreperson, and then of the jury collectively, whether there was a

deadlock. When the jurors answered affirmatively, the court

declared a mistrial, excused the jury, and set a new trial date. 
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Brown filed a motion to dismiss shortly thereafter,

arguing that the court had abused its discretion by hastily

declaring a mistrial, by not engaging in the analysis required for

a motion for judgment of acquittal, and by failing "to inquire of

the jurors to determine their positions on guilt or innocence." At

oral argument on the motion to dismiss, Brown additionally argued

that the court could have dismissed the holdout juror for good

cause and then entered the verdict of the eleven-member jury. The

court denied the motion for substantially the same reasons that it

declared the mistrial. This interlocutory appeal followed. See

United States v. Keene, 287 F.3d 229, 232 (1st Cir. 2002) (stating

that an interlocutory appeal is permitted when a defendant claims

that further proceedings in the trial court constitute double

jeopardy). 

II.

The Fifth Amendment to the Constitution provides that no

person shall be "twice put in jeopardy of life or limb" for the

same offense. Among other things, the double jeopardy clause

protects defendants against "serial attempts by the government to

convict a defendant on a single charge." Id. Without such

protection, a defendant could be subjected to multiple trials,

increasing the expense and embarrassment of the defendant, and

enhancing the risk of convicting an innocent person. Id. In light

of these concerns, "courts have construed the Double Jeopardy
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Clause to bar retrial of a defendant after a mistrial ordered over

the defendant's objection unless the mistrial was occasioned by

manifest necessity." United States v. McIntosh, 380 F.3d 548, 553

(1st Cir. 2004) (footnote omitted). Although the government bears

the burden of establishing manifest necessity, "a hung jury is the

paradigmatic example of manifest necessity." Id.

When a motion to dismiss on double jeopardy grounds

follows from a district court's declaration of a mistrial, we

review the court's manifest necessity determination for an abuse of

discretion. Keene, 287 F.3d at 233 (citing Arizona v. Washington,

434 U.S. 497, 514 (1978)). The court's findings of fact are

reviewed for clear error, and legal determinations are reviewed de

novo. McIntosh, 380 F.3d at 553-54. While our review of the

manifest necessity determination is case-specific and cannot be

discharged by resort to a mechanical checklist, see id. at 554, we

have identified three factors that are particularly relevant: (1)

whether the court provided counsel an opportunity to be heard; (2)

whether the court considered alternatives to a mistrial; and (3)

whether the court's decision was made after adequate reflection.

United States v. Simonetti, 998 F.2d 39, 41 (1st Cir. 1993). See

also Fed. R. Crim. P. 26.3 ("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."). The
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overarching question on appeal is "whether the district judge's

declaration of a mistrial was reasonably necessary under all the

circumstances." Keene, 287 F.3d at 234.

The record demonstrates that the district court was

careful to satisfy each of the Simonetti factors before declaring

a mistrial. Throughout the course of the jury's deliberations, and

following the receipt of each note from the jury, the court sought

suggestions from counsel for both sides. Not only did the court

consider alternatives to a mistrial, but, with one exception, the

court always acceded to defense counsel's requests: first

withholding an Allen charge, then delivering it in modified form,

and finally sending a pair of notes to the jury to confirm that

there was no hope of a verdict. Only defense counsel's suggestion

that the holdout juror be singled out for an additional instruction

was rejected by the court, and even then the court gave defense

counsel an opportunity to suggest an alternative.

The record also reflects the court's careful

consideration of the situation before it declared a mistrial. The

court was aware that the jury had deliberated for 13 hours in an

uncomplicated case that essentially came down to choosing which of

the witnesses to believe. The straightforward nature of the case,

and the fact that the jury had communicated its deadlock on five

occasions, including once in open court, support the conclusion

that the court withheld the declaration of a mistrial until it was
We may quickly dispose of Brown's first two contentions. As 2

to the first, suffice it to say that permitting defense counsel the

opportunity to offer alternatives to a mistrial is not tantamount

to placing the burden on defense counsel to prove the absence of

manifest necessity. Such consultations are required by the Federal

Rules of Criminal Procedure and are intended to "reduce the

possibility of an erroneously ordered mistrial" to the "benefit

[of] both the prosecution and the defense." Fed. R. Crim. P. 26.3

advisory committee's note 1993. 

The contention that the court erred by failing to analyze the

evidence under the standard for a judgment of acquittal, after

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evident that a unanimous verdict was not forthcoming. See Keene,

287 F.3d at 235 (no abuse of discretion in declaring a mistrial

given the length of deliberations in comparison to the brevity of

the trial and the simplicity of the issues, the fact that a

modified Allen charge had proven unsuccessful, and "the

increasingly adamant manner in which the jurors announced that they

were deadlocked").

Where the Simonetti factors are satisfied, "we will

reverse only if the district court applied an incorrect legal

principle or made a meaningful error in judgment" in deciding to

declare a mistrial. McIntosh, 380 F.3d at 554. Brown argues that

four errors precipitated the district court's erroneous mistrial

declaration: (1) placing the burden to establish the non-existence

of manifest necessity on the defendant, (2) failing to examine the

evidence under the judgment of acquittal standard, (3) declining

the defense request to instruct the holdout juror to consider the

evidence, and (4) refusing to voir dire the holdout juror to

determine the basis of his position. Brown focuses predominantly 2
defense counsel had suggested dismissal as an alternative to a

mistrial, also fails. Although the court disregarded defense

counsel's request without explanation, it is readily apparent why:

the government had presented ample evidence to support a conviction

under 21 U.S.C. § 841(a)(1). Pease's testimony, if credited, made

out the essential elements of the crime: that Brown had "knowingly

and intentionally transferred cocaine from himself to someone

else." United States v. Piper, 298 F.3d 47, 59 (1st Cir. 2002). 

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on the third and fourth alleged errors. He asserts that, when a

court is faced with a choice between a defense request for a second

jury instruction or a mistrial, the court must issue the charge in

the case of an 11 to 1 jury panel. Brown further argues that a

voir dire of the lone holdout juror could have revealed that the

juror was not deliberating in good faith. If that were the case,

the court could have dismissed the juror for cause and allowed the

11 remaining jurors to return a verdict. See Fed. R. Crim. P.

23(b)(3); United States v. Barone, 114 F.3d 1284, 1309 (1st Cir.

1997) (upholding an 11-juror verdict where one juror had been

dismissed for cause). The court should have been aware of this

potential solution, Brown argues, because the final jury note

suggested that the holdout juror's vote was based on "his own

issues," not on the evidence. Thus, Brown concludes, a potentially

viable alternative to mistrial existed, and the court abused its

discretion by not fully exploring that avenue. See United States

v. Toribio-Lugo, 376 F.3d 33, 39 (1st Cir. 2004) (no manifest

necessity where there was a viable alternative to mistrial that the

district court failed to adequately explore).
We reject Brown's argument that a court must accede to a 3

defense request for a second modified Allen charge in a situation

where a jury is deadlocked 11 to 1. Cf. Keene, 287 F.3d at 235

(although the district court is required to "consider" the

suggestions of counsel, it is not required to "employ a particular

alternative upon demand"). In our view, the appropriateness of

deciding to give such a charge must be assessed on a case-by-case

basis. 

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Our resolution of these two arguments is controlled by

the deferential standard of review. Because of the delicacy

inherent in dealing with a holdout juror, and because the cold

record is a poor substitute for the district court's on-the-spot

perceptions, we will defer to the court's determination so long as

it is reasonable. See McIntosh, 380 F.3d at 555-56. Here, aware 3

that the jury was deadlocked by a single juror, the court was

properly cautious in its employment of deadlock-breaking

procedures, see McIntosh, 380 F.3d at 556 ("[T]he wisest course

when a [holdout] juror's views are known is to proceed

cautiously."); United States v. Hotz, 620 F.2d 5, 7 (1st Cir. 1980)

(noting that a court must avoid putting pressure on the jury), and

reasonably concluded that any further instruction, particularly one

directed solely to the holdout, would have been unduly coercive,

see Keene, 287 F.3d at 235 (giving a second modified Allen charge

is "an extraordinary measure . . . that should be shunned absent

special circumstances").

The argument that the holdout juror should have been

questioned was not advanced by Brown before the district court.
Indeed, as the holdout's position was unknown, defense 4

counsel's silence on this issue may well have been intentional.

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Indeed, only the government suggested such questioning. Defense

counsel did not concur with the government's request, object when

the court denied the government's request, or attempt to revive the

request prior to the court's declaration of a mistrial. We thus

face an arguable forfeiture of that claim. See McIntosh, 380 F.3d 4

at 555. Regardless, the claim fails.

Here again, the court believed that singling out the lone

holdout for questioning would have been unduly coercive. This

conclusion was not unreasonable, notwithstanding the note from the

jury foreperson indicating her suspicion that the holdout juror's

position was based on unspecified personal "issues." The district

court was concerned that a juror, summoned individually for a

colloquy with the judge, might feel pressured to change his

position, and was entitled to prioritize the avoidance of coercion

over an inquiry into the dynamic giving rise to the foreperson's

cryptic note. We cannot say that the court's decision was an abuse

of discretion. Cf. id. at 557 (finding that the district court

acted within its discretion in "declining to probe further into [a

holdout juror's] views").

III.

For the foregoing reasons, we affirm the district court's

denial of Brown's motion to dismiss.