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, Michael Dean

Melius (“Melius”) filed a motion to dismiss the indictment against him on

double jeopardy grounds. Melius now appeals the order of the district

court which denied his motion to dismiss. Because we hold that the

2

district court exercised sound
2

discretion in determining that the mistrial was based upon “manifest

necessity,” we affirm the district court’s order. 

I.

On November 13 and 14, 1996, Melius was tried in Duluth, Minnesota,

on a two-count superseding indictment charging him with possession with

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 was

submitted to the jury. At that time Judge Rosenbaum, who had conducted the

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 15, 1996, it came to the court’s

attention that a woman had contacted a group of jurors the previous evening

in an attempt to discuss the trial with them. Deliberations were suspended

and Judge Rosenbaum held a hearing on Monday, November 18, 1996. Upon

questioning the entire jury, jurors Napper, Melde, and Hermanson indicated

that they were parties to the extraneous conversation. The three contacted

jurors and a fourth juror, foreperson Miller, were each examined

individually about the incident in chambers. 

Each of the contacted jurors testified that after they had been

excused from deliberations 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 the

courtroom during the trial. Ultimately, the jurors entered but decided to

sit at the 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
3

responded that they had not. The woman then asked the three whether they

wanted to know why she had not testified during the trial. One of the

jurors told the woman that they could not discuss the matter with her and

the contact ended. The 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.

Foreperson Miller then joined the other three jurors at the bar and was

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 were

aware that a note had been written to the court and that several jurors had

been approached the night before although it is unclear from the record how

the other jurors acquired this information. After the voir dire, the

district court noted that all of the jurors “were aware that a note was

sent by someone other than the foreperson, and at least in outline must

know the nature of the communication.” The four jurors who were questioned

individually all stated that their deliberations would not be affected by

the incident and that each believed he or she could be impartial. 

After questioning the four jurors, the district court asked counsel

for their positions on whether a mistrial was necessary. Defense counsel

stated that he did not think that there were grounds for a mistrial and

that it was his position that the jury should continue with their

deliberations. The government expressed concern that 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 during

closing argument, to the effect that government witnesses had

lied or had forgotten things or were hiding
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evidence, and allegations that were made against the prosecutor

in this case to that effect, that the mere fact that a witness

walks up or an individual walks up to a group of jurors to

explain why she didn’t testify tends to throw the jurors into

a state of confusion, at a minimum, regarding how to assess the

viability of the defense position in this case. And therefore

I am concerned, as I indicated on Friday, not only with the

fact of the cont[act], but with the mere few words that were

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 the

extraneous information, whether there would be a knee-jerk reaction to

accept the proposition of the defense set forth in its closing argument or

whether the reaction would be to reject the defense’s theory. Regardless,

the government contended that the prospect of a tainted juror was “highly

probable.” Following these statements by the parties, the court asked

counsel if anything further 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 believe

that any further statements were necessary. The government took no

position. 

After a short recess the district court announced that it was

ordering a mistrial on the basis that the woman’s contact with the three

jurors, together with the interruption of deliberations and questioning of

jurors by 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 is

impossible for me to imagine that there could not have been

some question raised as to whether or not the comings and

goings of jurors, the fact that what could have been perceived

as some kind of a rump group wrote a note or felt compelled to

write a note, to be interviewed by the Court, the fact that the

Court obviously interrupted their deliberations. Under those
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circumstances, it is impossible for me to believe that the

defendant might not one day have been of a mind that maybe

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 it

would have to question the jury’s verdict. Under those

circumstances there was a manifest necessity.

Subsequently, a date for the second trial was scheduled. Melius then

moved to dismiss the indictment against him on double jeopardy grounds.

The government’s response included the affidavit of assistant United States

attorney, Mark D. Larsen, which discussed information which the Federal

Bureau of Investigation acquired in connection with a jury tampering

investigation which commenced after the mistrial was declared. The

affidavit focused on Nicole Wasson, the girlfriend of Melius who contacted

the three jurors. The implication of the affidavit and the allegations

which the government makes in its brief relating to the investigation,

suggest that Nicole Wasson’s meeting with the three jurors was not a chance

happening but occurred as a result of a planned effort to influence the

jury. Although the affidavit states nothing about any complicity on the

part of Melius to tamper with the jury, the government’s brief states

“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 the

prosecutor’s declaration. The district court acknowledged that the

material was not taken into consideration by the court in declaring the

mistrial, but permitted its addition “for the purposes of fleshing out the

record.” At the end of the hearing the district court took the matter

under advisement. On January 13, 1997, the district court summarily denied

Melius’ motion to dismiss.
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II.

The Fifth Amendment provides that “[n]o person shall . . . be subject

for the same offence to be twice put in jeopardy of life or limb.” U.S.

CONST. amend. V. The protection afforded by the Fifth Amendment against

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 afforded against double jeopardy to prevent the State, with all its

resources and power from making repeated attempts to convict an individual

for an alleged offense, “thereby subjecting him to embarrassment, expense

and ordeal and compelling him to live in a continuing state of anxiety and

insecurity, as well as enhancing the possibility that even though innocent

he may be found guilty.” Green v. United States, 355 U.S. 184, 187-88

(1957); see also Washington, 434 U.S. at 503-05. 

The Fifth Amendment’s protection against double jeopardy attaches

when the jury is empaneled and sworn, Crist v. Bretz, 437 U.S. 28, 35

(1978), however, unlike the case where the trial has ended in acquittal,

retrial is not always barred by the Fifth Amendment when the trial has

terminated without a verdict. Washington, 434 U.S. at 505. If the rule

was otherwise, it “would create an insuperable obstacle to the

administration of justice in many cases in which there is no semblance of

the type of oppressive 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 in

some instances be subordinated to the public’s interest in fair trials

designed to end in just judgments.’” United States 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”). 

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Although the Supreme Court has refused to establish specific guidelines for

weighing these competing interests, retrial has long been permitted where

“taking all the circumstances into consideration, there is a manifest

necessity for 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 varying

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 high degree of necessity exists depends on the circumstances of each

case. Id. at 508. At one end of the spectrum, strict scrutiny is

appropriate when the basis for the mistrial is the unavailability of

government evidence or when there has been government 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 is

appropriate. Id. at 509. In that situation, the trial judge has broad

discretion in determining whether or not manifest necessity exists. Id.

“Because possible juror bias falls nearer to the deadlocked jury end of the

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 ‘great

deference.’” Dixon, 913 F.2d at 1311 (citing Washington, 434 U.S. at 512-

14). The deference granted to a district court in determining that

“manifest necessity” exists for a mistrial is justified because the trial
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judge is in a much better position than is an appellate court to evaluate

the significance of possible juror bias. Washington, 434 U.S. at 513. 

Consistent with this deference, we must satisfy ourselves the district

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 in

cases involving possible juror bias, its determination of manifest

necessity is 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 being

able, once and for all, to conclude his confrontation with society through

the verdict of a tribunal he might believe to be favorably disposed to his

fate.’” Id. at 486. “If the record reveals that the trial judge has

failed to exercise the ‘sound discretion’ entrusted 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

assurance that “the district court, in declaring a mistrial, acted

‘responsibly and deliberately, and accorded careful consideration to [the

defendants’] interest in having the trial concluded in a single

proceeding.’” Dixon, 913 F.2d at 1311 (quoting Washington, 434 U.S. at

516). Consultation with counsel, consideration of alternatives to

mistrial, and the amount of time dedicated to the mistrial decision are

indicative of whether the trial court acted responsibly and deliberately.

See Dixon, 913 F.2d at 1311 (recognizing that “consultation with counsel

and consideration of available alternatives are consistent with the

exercise of sound discretion”); see also Brady v. Samaha, 667 F.2d 224, 229

(1st Cir.
9

1981)(“A precipitate [sic] decision, reflected by a rapid sequence of

events culminating in a 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 action

cannot be condoned.” Washington, 434 U.S. at 514 (citations omitted). 

III.

As a preliminary matter, Melius contends that the information

acquired by the government during its jury tampering investigation which

was submitted to the district court in consideration of his motion to

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 could

not have been a basis upon which the district court declared the mistrial.

The government argues that by filing his motion to dismiss, “defendant

created the possibility that new information would be made part of the

record.” In the case at bar the government merely speculates that Melius

may have been implicated in Ms. Wasson approaching the jury. The

government does not present sufficient evidence to support its argument and

accordingly we 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 discretion in determining that manifest necessity existed

for the mistrial. Based upon the record we cannot conclude that the

district court acted precipitately or hastily in declaring the mistrial.

On the contrary, the district court founded its ruling upon a careful

examination of four jurors, an opportunity for the parties to be heard, and

careful consideration of the issue before the court. The record amply

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 manifest

necessity. 

At the heart of the district court’s decision was the concern that

any verdict which the jury might have reached would have been tainted by

the contact in the bar and the circumstances surrounding the interruption

in the jury’s deliberations. We remind ourselves that the extent of

4

possible juror bias is difficult to measure, and therefore, the district

court’s “evaluation of the likelihood that the impartiality of one or more

jurors may have been affected” is entitled to “the highest degree of

respect.” Washington, 434 U.S. at 511.

[The trial judge] has seen and heard the jurors during their

voir dire examination. He is the judge most familiar with the

evidence and the background of the case on trial. He has

listened to the tone of the argument as it was delivered and

has observed the apparent reaction of the jurors. In short, he

is far more “conversant with the factors relevant to the

determination” than any reviewing court can possibly be. 

Id. at 514 (citing Wade, 336 U.S. at 687). We also note that it is well

established that “[t]he exposure of the jury to improper communications or

extrinsic material evidence creates a presumption of prejudice, and

therefore a presumption of an infringement of the
11

defendant’s Sixth Amendment right to trial by an impartial jury.” United

States v. Rowley, 975 F.2d 1357, 1363 (8th Cir. 1992)(citing Remmer v.

United States, 347 U.S. 227, 229 (1954), and Osborne v. United States, 351

F.2d 111, 117 (8th Cir. 1965)). Here, after hearing the defense’s closing

argument which in effect accused the government of misleading the jury,

three of the jurors directly received extrinsic information that a witness

was available to them, but that they had not been allowed to hear her

testimony, and a fourth juror learned of the information shortly

thereafter. The four members of the jury had access to the information

from Thursday evening, November 14, 1996, to the following Monday, when the

district court conducted 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 these

circumstances, it would not be unlikely for a juror to question whether the

government had hidden evidence from them, or whether the defense was

improperly attempting to influence their verdict. In light of the

defense’s closing argument, the district court exercised sound discretion

in finding that the jury was tainted. 

IV.

We conclude that the district court exercised sound discretion in

determining that the mistrial was based upon “manifest necessity,” and hold

that the Double Jeopardy Clause of the Fifth Amendment does not bar a

retrial in this case. Accordingly, the order of the district court denying

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.