### The Honorable Gary A. Fenner, United States District Judge 1 

### for the Western District of Missouri, sitting by designation. The Honorable James M. Rosenbaum, United States District 2 

### Judge for District of Minnesota, Fifth Division. United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 97-1237

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District * of Minnesota Michael Dean Melius, * * Defendant - Appellant. *

__________ Submitted: June 10, 1997 Filed: September 9, 1997

__________ Before LOKEN and ROSS, Circuit Judges, and FENNER, District Judge. 1

__________ FENNER, District Judge.
After the declaration of a mistrial without his consent, Michae l Dean Melius (“Melius”) fil ed a motion to dismiss the indictment against him on doubl e jeopardy grounds. Melius now appeals the order of the distric t court which denied his motion to dismiss. Because we hold that th e

2 district court exercised sound

### 2

discre tionin determining that the mistrial was based upon “manifes t necessity,” we affirm the district court’s order.

I
.
On Novemb er 13 and 14, 1996, Melius was tried in Duluth, Minnesota,
on a t wo-count superseding indictment charging him with possession wit h intent to distribute methamphetamine in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)( B), relating to events on March 21, 1996 and May 22, 1996. Late in the day on Thursday, November 14, 1996, the case wa s submitted to the jury. At that time Judge Rosenbaum, who had conducted th e trial, left Duluth for Minneapolis, Minnesota. Arrangements were made for the verdict to be handled by the Honorable Gerald W. Heaney.
On the morning of Friday, November 1 5, 1996, it came to the court’s attention that a woman had contacted a group of jurors the previous evenin g in an attempt to discuss the trial with them. Deliberations were suspende d and Judge Rosenbaum held a hearing on Monday, November 18, 1996. Upo n questioning the entire jury, jurors Napper, Meld e, and Hermanson indicated that they were parties to the extraneous conversation. The three contacte d jurors and a fourth juror, foreperson Miller, were each examine d individually about the incident in chambers.

Each of t he contacted jurors testified that after they had bee n excused from delibera tions for the day on November 14, 1996, they went to
a bar in the Radisson Hotel. The jurors first hesitated in entering the bar because they recognized a group of people there as being present in th e courtroom during the trial. Ultimately, the jur ors entered but decided to sit at th e bar’s far end away from the group which they recognized

. Shortly thereafter a woman from the group approached the three jurors and asked them if the jury had reached a verdict, to which one of the jurors

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responded that they h ad not. The woman then asked the three whether they want ed to know why she had not testified during the trial. One of th e jurors told the womanthat they could not discuss the matter with her and the contact ended. T he woman and her group then left the bar. While the jurors recognized the woman as being present during the trial, they were not sure who she was or why she had been present in the courtroom

. Foreperso nMiller then joined the other three jurors at the bar and wa s told about the contact with the woman. After discussing the matter, the jurors decided that they would have to report the incident to the judge.
According to the interrogated jurors, the other eight jurors wer e aware that a note had been written to the court and that several jurors ha d been approached the night before although it is unclear from the record ho w the other jurors acquired this information. After the voir dire, th e distric t court noted that all of the jurors “were aware that a note wa s sent by s omeone other than the foreperson, and at least in outline mus t know the nature of the communication.” The four jurors who were questione d individually all stat ed that their deliberations would not be affected by the incident and that each believed he or she could be impartial.
After que stioning the four jurors, the district court asked counsel for their positions o n whether a mistrial was necessary. Defense counsel stated that he did not think that there were grounds for a mistrial an d that it was his position that the jury should continue with thei r deliberations. The government expressed concernthat the woman’s comments bolstered the position of the defense as set forth in its closing argument , stating

I’ m. . . concerned in light of the allegations made durin g closing argument, to the effect that government witnesses had lied or had forgotten things or were hiding

### 4 evidence, and allegations that were made against th e prosecutor in this case to that eff ect, that the mere fact that a witness walks up or an individual walks up to a group of jurors t o explainwhy she didn’t testify tends to throw the jurors into a state of confusion, at a minimum, regarding how t o assess the viability of the defense position in this case. And therefore I am concerned, as I indicated on Friday, not only with th e fact of the cont[act], but with the mere few words that wer e spoken, but because I think they go to the heart of the defense in this case.
The government also stated that it was unsure how a jury would react to th e extran eous information, whether there would be a knee-jerk reaction t o accept the proposition of the defense set forth in its closing argument or whether the reaction would be to reject the defe nse’s theory. Regardless, the government conten ded that the prospect of a tainted juror was “highly probable.” Following these statements by the parties, the court aske d counsel if anything f urther should be said to the jury. At the time that the court made the inquiry, neither party had moved for a mistrial

. Defense counsel responded to the inquiry by stating that it did not believ e that any further statements were necessary. The government took n o position.

Aft er a short recess the district court announced that it wa s ordering a mistrial on the basis that the woman’s contact with the three jurors, together with the interruption of delibe rations and questioning of jurors b y the court, tainted the jury. The district court also made a finding that there was “manifest necessity” to declare the mistrial.

In my view the interests of justice were clear. It i s impossi ble for me to imagine that there could not have bee n some question raised as to whether or not the comings an d goings of jurors, the fa ct that what could have been perceived as some kind of a rump g roup wrote a note or felt compelled to write a note, to be interviewed by the Court, the f act that the Court obviously interrupted their deliberations. Under those

### 5 cir cumstances, it is impossible for me to believe that th e defenda nt might not one day have been of a mind that mayb e something happened with the jury in a fashion which would have made it difficult for him to be confident in the jury’ s verdict , and the Court would have to be questionable, or i t wou ld have to question the jury’s verdict. Under thos e circumstances there was a manifest necessity.

Subsequently, a date for the second trial was scheduled. Meliu s then
mov ed to dismiss the indictment against him on double jeopardy grounds

. The government’s response included the affidavit of assistant United State s attorn ey, Mark D. Larsen, which discussed information which the Federa l Bureau of Investigation acquired in connection with a jury tamperin g invest igationwhich commenced after the mistrial was declared. Th e affidavit focused on Nicole Wasson, the girlfrie nd of Melius who contacted the three jurors. The implication of the affidavit and the allegation s whichthe government makes in its brief relating to the investigation , suggest that Nicole Wasson’s meeting with the three jurors was not a chanc e happening but occurred as a result of a planned effort to influence th e jury. Although the affidavit states nothing about any complicity on the part of Me lius to tamper with the jury, the government’s brief state s “there still remains a ‘distinct possibility’ that the defendant engaged in misconduct to avoid a guilty verdict.”
On December 27, 1996, the district court heard argument on the motion to dismiss, during which the defense unsuccessfully attempted to strike th e prose cutor’s declaration. The district court acknowledged that th e material was not taken into consideration by the court in declaring th e mistrial, but permitted its addition “for the pu rposes of fleshing out the record.” At the end of the hearing the district court took the matte r under advisement. On January 13, 1997, the district court summarily denie d Melius’ motion to dismiss.

### 6 II.
The Fifth Amendment provides that “[n]o person shall . . . be s ubject for the same offence to be twice put in jeopardy of life or limb.” U.S. C ON ST . amend. V. The protection afforded by the Fifth Amendment agains t being subject to double jeopardy is a “valued right,” Washington v

. Arizona , 434 U.S. 497 , 503 (1978), which is “‘fundamental to the American scheme of justice.’” Benton v. Maryland , 395 U.S. 784, 795 (1969)( quoting Duncan v. Louisiana , 391 U.S. 145, 149 (1968). Constitutional protection is af forded against double jeopardy to prevent the State, with all it s resources and power from making repeated attempt s to convict an individual for an alleged offens e, “thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a conti nuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may b e found guilty.” Green v. United States , 355 U.S. 184, 187-8 8 (1957); see also Washington , 434 U.S. at 503-05.

The Fifth Amendment’s protection against double jeopardy attache s when the jury is empaneled and sworn, Crist v. Bretz , 437 U.S. 28, 3 5 (1978), however, unlike the case where the trial has ended in acquittal, retrial is not always barred by the Fifth Amendment when the trial ha s terminated without a verdict. Washington , 434 U.S. at 505. If the rule
was ot herwise, it “would create an insuperable obstacle to th e 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. Hunter , 336 U.S. 684, 688-89 (1949). Consequently, a defendant’s valued right not to be subject to double jeopardy “‘must i n some instances be subordinated to the public’s interest in fair trial s designed to end in just judgments.’” United Sta tes v. Jorn , 400 U.S. 470, 480 (1971)( quoting Wade , 336 U.S. at 689).

### We note that a trial court need not find “manifest 3 

### necessity” if the defendant requests or consents to the mistrial. See Oregon v. Kennedy , 456 U.S. 667, 672 (1982)(recognizing that “manifest necessity” standard has no place in application of Double Jeopardy Clause where defendant has elected to terminate the proceedings against him); see also United States v. Dixon , 913 F.2d 1305, 1310 n.2 (8th Cir. 1990)(noting that “‘manifest necessity’ test does not apply when the defendant has requested or consented to a mistrial”).
7 Although the Supreme Court has refused to establish specific guidelines fo r weighing these compet ing interests, retrial has long been permitted where “takin g all the circumstances into consideration, there is a manifes t
necess ityfor the act [of mistrial].” United States v. Perez , 22 U.S.( 9 3 Wheat.) 579, 580 (1824).
The United States Supreme Court has recognized that there are v arying degrees of necessity and a “high degree” of necessity must exist before a mistrial is appropriate. Washington , 434 U.S. at 506. However, whether
a hig h degree of necessity exists depends on the circumstances of eac h
case. Id . at 508. At one end of the spectrum, strict scrutiny i s appr opriate when the basis for the mistrial is the unavailability o f government evidence or when there has been gover nment misconduct. Id . At the other extreme is the case where the jury is unable to reach a verdict,
a situation in which it has long been the rule that a mistrial i s appropr iate. Id . at 509. In that situation, the trial judge has broa d discretionin determining whether or not manifest necessity exists. Id
. “Because possible juror bias falls nearer to the deadlocked jury end of th e spectrum of the trial problems which may warrant a mistrial, the district court’s decision to declare a mistrial on that ground is entitled to ‘grea t deference.’” Dixon , 913 F.2d at 1311 ( citing Washington , 434 U.S. at 512

- 14). The deference granted to a district court in determining tha t “manifest necessity” exists for a mistrial is justified because the trial

### 8

judge is in a much be tter position than is an appellate court to evaluate the significance of possible juror bias. Washington , 434 U.S. at 513. Consis tent with this deference, we must satisfy ourselves the distric t court’s decision that manifest necessity existed for the mistrial was an exercise of its “sound discretion.” Washington , 434 U.S. at 514; Dixon , 913 F.2d at 1311.

While the trial court’s decision is entitled to much deference i n cases involving possible juror bias, its determination of manifes t necessityis not beyond review. The trial court is obligated to use its power to order a mistrial with the “greatest caution.” Jorn , 400 U.S. at 481. The trial judge “must always temper the decision whether or not to abort the trial by considering the importance to the defendant of bein g able, once and for all, to conclude his confront ation with society through the verdict of a tribunal he might believe to be favorably disposed to his fat e.’” Id. at 486. “If the record reveals that the trial judge ha s failed to exercise the ‘sound discretion’ entrus ted to him, the reason for such deference by an appellate court disappears. ” Washington , 434 U.S. at 510 n.28. Therefore, in reviewing the district court’s decision, we seek
assura nce that “the district court, in declaring a mistrial, acte d ‘responsibly and deli berately, and accorded careful consideration to [the defend ants’] interest in having the trial concluded in a singl e proceeding.’” Dixon , 913 F.2d at 1311 ( quoting Washington , 434 U.S. a t 516). Consultation with counsel, consideration of alternatives t o mistrial, and the amount of time dedicated to the mistrial decision ar e indicative of whether the trial court acted responsibly and deliberately. See Dixon , 913 F.2d at 1311 (recognizing that “consultation with counsel and c onsideration of available alternatives are consistent with th e exercise of sound discretion”); see also Brady v. Samaha , 667 F.2d 224, 22 9 (1st Cir.

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1981)( “Aprecipitate [sic] decision, reflected by a rapid sequence o f events culminating ina declaration of a mistrial, would tend to indicate insufficient concern for the defendant’s constitutional protection.”)

. Similarly, if a trial judge acts “irrationally or irresponsibly, his actio n cannot be condoned.” Washington , 434 U.S. at 514 (citations omitted).

III
.

As a preliminary matter, Melius contends that the informatio n acquired by the government during its jury tampering investigation which
was submit ted to the district court in consideration of his motion t o dismiss should not be considered as part of the record because it was not before the district court when it declared the mistrial and therefore coul d not have been a basis upon which the district co urt declared the mistrial. The government argues that by filing his motion to dismiss, “defendan t creat ed the possibility that new information would be made part of th e record.” In the case at bar the government merely speculates that Melius may have been implicated in Ms. Wasson approaching the jury. Th e government does not present sufficient evidence to support its argument an d
accor dinglywe do not consider that Melius was somehow involved in Ms

. Wasson’s actions.

Our review of the record in this case reveals that the district court exercised sound discr etion in determining that manifest necessity existed for th e mistrial. Based upon the record we cannot conclude that th e district court acted precipitately or hastily in declaring the mistrial. On the con trary, the district court founded its ruling upon a carefu l examination of four jurors, an opportunity for the parties to be heard, an d caref ul consideration of the issue before the court. The record ampl y demonstrates that the district judge exercised his discretion only after informing himself of the relevant factors and taking adequate

### Melius urges us to take a piecemeal approach to reviewing 4 

### the district court’s decision. His brief dissects the record, arguing that the district court’s consideration of certain factors and failure to consider others when making its determination were each an abuse of discretion. This approach is contrary to settled law on the subject. We will not review the record in isolated and unrelated component parts. Our review of the district court’s decision that there was manifest necessity for the mistrial is made “taking all the circumstances into consideration.” United States v. Givens , 88 F.3d 608, 612 (8th Cir. 1996)(citing United States v. Perez , 22 U.S.(9 Wheat.) at 580); see also Washington , 434 U.S. at 517 (recognizing that a trial court is not required to make findings supporting its declaration that manifest necessity exists and therefore review is to be made based upon the entire record). 10 time to reach his decision that the mistrial was based upon manifes t necessity.

At the heart of the district court’s decision was the concern tha t anyverdict which the jury might have reached would have been tainted by the contact in the ba r and the circumstances surrounding the interruption in the jur y’s deliberations. We remind ourselves that the extent o f 4 possible juror bias is difficult to measure, and therefore, the district court’s “evaluation of the likelihood that the i mpartiality of one or more juro rs may have been affected” is entitled to “the highest degree o f respect.” Washington , 434 U.S. at 511.
[The trial judge] has seen and heard the jurors during thei r voir dire examination. He is the judge most familiar with the evidence and the background of the case on trial. He ha s listened to the tone of the argument as it was delivered an d has observed the apparent reaction of the jurors. In short, he is far more “conversant with the factors relevant to th e determination” than any reviewing court can possibly be.
Id . at 514 ( citing Wa de , 336 U.S. at 687). We also note that it is well established that “[t]he exposure of the jury to improper communications or extri nsic material evidence creates a presumption of prejudice, an d therefore a presumption of an infringement of the

### 11

defendant’s Sixth Ame ndment right to trial by an impartial jury.” United State s v. Rowley , 975 F.2d 1357, 1363 (8th Cir. 1992)( citing Remmer v

. United States , 347 U.S. 227, 229 (1954), and Osb orne v. United States , 351 F.2d 111, 117 (8th Cir. 1965)). Here, after hea ring the defense’s closing arg ument which in effect accused the government of misleading the jury , three of the jurors directly received extrinsic information that a witness
was avail able to them, but that they had not been allowed to hear he r testi mony, and a fourth juror learned of the information shortl y thereafte r. The four members of the jury had access to the informatio n from Thursday evening, November 14, 1996, to the following Monday, when th e district court conduc ted its voir dire. Additionally, the contact of the jurors was the subject of a note, which the other jurors knew about, and the extraneous information entered the deliberative process very shortly after the jury had received the case for a verdict. Under thes e circumstances, it would not be unlikely for a juror to question whether th e gove rnment had hidden evidence from them, or whether the defense wa s improper lyattempting to influence their verdict. In light of th e defense’s closing arg ument, the district court exercised sound discretion in finding that the jury was tainted.

IV
.

We conclude that the district court exercised sound discretion i n determining that the mistrial was based upon “manifest necessity,” and hol d tha t the Double Jeopardy Clause of the Fifth Amendment does not bar a retrial in this case. Accordingly, the order of the district court denyin g Melius’ motion to dismiss the indictment against him is affirmed.

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A true copy.

Attest:

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