UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4579

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

DANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man, 

Defendant - Appellant. 

No. 15-4580

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

KWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a 

Black Wolf, a/k/a Babi, 

Defendant - Appellant. 

Appeals from the United States District Court for the Western 

District of Virginia, at Charlottesville. Glen E. Conrad, Chief 

District Judge. (3:14-cr-00016-GEC-JCH-1; 3:14-cr-00016-GECJCH-4)

Submitted: January 5, 2016 Decided: January 11, 2016

Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
2

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender for the Western 

District of Virginia, Geremy C. Kamens, Acting Federal Public 

Defender for the Eastern District of Virginia, Frederick T. 

Heblich, Jr., Assistant Federal Public Defender,

Charlottesville, Virginia, Paul G. Gill, Assistant Federal 

Public Defender, Richmond, Virginia, for Appellants. Anthony P.

Giorno, United States Attorney, Christopher R. Kavanaugh, Ronald 

M. Huber, Jean B. Hudson, Assistant United States Attorneys, 

Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Appellants Daniel Lamont Mathis and Kweli Uhuru appeal from 

the district court’s order denying their motion to dismiss the 

superseding indictment pending against them on double jeopardy 

grounds. Finding no reversible error, we affirm.

I.

Appellants and their four codefendants are charged in a 36-

count superseding indictment. The superseding indictment 

alleges, among other matters, that Appellants are members of a 

street gang and that members of this gang conspired with one 

another to conduct and participate in the affairs of the gang 

through a pattern of racketeering activity consisting of 

assaults, robberies, burglaries, kidnapping, carjacking, murder, 

drug trafficking, and obstruction of justice. All six 

Defendants proceeded to a jury trial. Trial commenced on May 4, 

2015, and a 16-person jury was sworn by the district court. No 

party had sought an anonymous jury, and the 16 sworn jurors were 

selected from a non-anonymous jury panel of 134 individuals. 

On May 6, 2015, the district court gave its opening remarks to 

the jury, and the parties gave their opening statements.

That evening, counsel for the Government notified the court 

and defense counsel that it had a preliminary matter it wished 

to take up with the district court prior to the presentation of 
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evidence. During an in-chambers conference the next day, an 

agent with the Federal Bureau of Investigation (FBI) reported to 

the district court and counsel that he had learned that Uhuru 

had removed from the courtroom and taken to his jail cell a jury 

list containing personally identifying information for the 

entire 134-person jury panel; this jury list remained in Uhuru’s 

possession overnight and for a total of at least 15 hours. The 

agent expressed concerns regarding the safety of the individuals 

on the jury list -- given that the jury panel was not anonymous

-- and stated that his concerns were shared by higher ranking 

officials within the FBI, as well as members of the Virginia 

State Police and the Louisa, Virginia, County Sheriff’s 

Department. The agent emphasized that these concerns were based 

at least in part on the believed affiliation between the 

Defendants and the “United Blood Nation,” a street gang with a 

history of taking violent action with respect to trials.

The agent advised further that the FBI and other law 

enforcement agencies believed they had a duty to notify the 134 

jury panel members -- whom the agencies believed to be at some 

level of risk as a consequence of Uhuru’s actions -- of the 

release of their personal information. To avoid the possibility 

of a mistrial, however, the agent proposed that the members of 

the jury panel be advised of the removal of the jury list at the 

conclusion of the trial.
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The district court also heard from counsel. Based on the 

concerns raised by the agent, several defense attorneys 

questioned the propriety of waiting until the trial’s conclusion 

to notify the individuals on the jury panel and stated their 

beliefs that a mistrial was necessary. Other defense attorneys

noted that the personal information of jury panel members is 

routinely shared with criminal defendants and did not move for 

or opposed a mistrial. Counsel for the Government stated the 

Government’s view that there were no grounds for a mistrial. 

The district court then elicited input from the United States 

Marshals in charge of the security detail for the trial. They 

advised counsel and the court of Uhuru’s believed gang 

connections and recruitment activities, but stated there was no 

evidence he had shared the jury list with anyone else.

Following a recess, counsel for the Government reported 

that the FBI remained of the opinion that the individuals on the 

jury list should be contacted regarding the dissemination of 

their personal information but that the Government opposed a 

mistrial. After hearing again from the FBI agent and 

considering his concerns and the observations of the Marshals

and hearing from counsel, the district court determined that it 

would send letters to members of the jury panel advising them 

that their personal information had been “viewed to a somewhat 

greater extent by criminal defendants than is usually the case 
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in the voir dire process.” J.A. 222. The court elected to send 

the letters the following morning rather than wait until the 

conclusion of the trial. Consistent with this ruling, the 

district court sent letters to each member of the jury panel.

After the district court announced its decision to send the 

letters, the four Defendants other than Mathis and Uhuru moved 

for mistrials. Trial recommenced on May 12, 2015, and the 

district court granted the mistrial motions of the four 

Defendants other than Mathis and Uhuru. Mathis and Uhuru 

concurred with the district court’s proposal to conduct a voir 

dire of the 16 sworn jurors to determine whether they thought 

they could proceed as jurors in light of the information relayed 

in the court’s letters to them.1

 1 The letters advised the 16 jurors that:

It is routine in all trials, both civil and criminal, 

for counsel to share personal information about 

prospective jurors with their clients, including 

criminal defendants. This is designed to make sure 

that attorneys and their clients are able to make 

intelligent decisions in matters of jury selection. 

In this case, however, information about all jury 

panel members was disseminated among the defendants to 

a greater degree than is usually the case in federal 

jury selection, in that a jury list was retained by 

one defendant overnight.

The court has made appropriate inquires and finds no 

reason for special concern. Nonetheless, we wanted to 

advise you of this circumstance. If you have any 

additional questions, you may use the contact number 

(Continued)
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After the district court, counsel for Mathis and Uhuru, and 

counsel for the Government met with and heard from all 16 jurors 

individually, the district court excused 3 jurors but advised 

that it was prepared to proceed to trial with the remaining 13 

jurors. The court heard argument from counsel for Mathis and 

Uhuru regarding their objections to 5 of the 13 jurors but 

stated it was convinced all 5 were capable of continuing to 

serve on the jury. The court also stated its willingness to 

proceed to trial with a jury of less than 12 persons if the 

parties could agree to do so. Mathis and Uhuru elected, 

however, to move for mistrials, and the district court granted 

their motions and declared a mistrial in the case.

Trial was rescheduled for February 1, 2016. Mathis and 

Uhuru moved to dismiss the superseding indictment on the grounds 

that a retrial was barred by the Double Jeopardy Clause of the 

Fifth Amendment, claiming that they were goaded into moving for

mistrials by the district court and the Government. The 

district court denied the motion, concluding that Mathis and 

Uhuru failed to prove its actions were intended to goad them 

into seeking mistrials and that there was no evidence that the 

 

previously provided. The court will discuss this 

matter with you upon your return to court on Tuesday.

J.A. 229.
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Government had any desire for a mistrial or intended to cause 

one.

Mathis and Uhuru noted timely interlocutory appeals from 

the district court’s order,2 and this court granted the 

Government’s motion for expedited briefing. On appeal, 

Appellants challenge the district court’s rejection of their 

double jeopardy claim.

II.

The Double Jeopardy Clause of the Fifth Amendment provides 

that no person shall “be subject for the same offence to be 

twice put in jeopardy of life or limb.” U.S. Const. amend. V. 

This clause protects a criminal defendant from facing “repeated 

prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 

667, 671 (1982). “In the case of a jury trial, jeopardy 

attaches when a jury is empaneled and sworn.” Baum v. Rushton, 

572 F.3d 198, 206 (4th Cir. 2009). “As such, the constitutional 

protection against double jeopardy embraces the defendant’s 

valued right to have his trial completed by a particular 

 2 This court has jurisdiction over the appeals under the 

collateral order exception to the final judgment rule. 

See Midland Asphalt Corp. v. United States, 489 U.S. 794, 798-99 

(1989); United States v. Jefferson, 546 F.3d 300, 308-10

(4th Cir. 2008).
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tribunal.” Id. (internal quotation marks and alteration 

omitted).

Nevertheless, the right to have a particular jury decide 

guilt or innocence once jeopardy has attached is not absolute. 

“There are circumstances under which retrial is permitted after 

a criminal proceeding has ended in mistrial.” Sanders v. 

Easley, 230 F.3d 679, 685 (4th Cir. 2000). Where, as here, a 

defendant obtains a mistrial, “the conditions for invocation of 

the double jeopardy bar are strict.” United States v. Wentz, 

800 F.2d 1325, 1327 (4th Cir. 1986). A defendant can avoid a 

second trial only if the “the governmental conduct in question 

is intended to ‘goad’ the defendant into moving for a mistrial.” 

Kennedy, 456 U.S. at 676. “[C]onduct that might be viewed as 

harassment or overreaching, even if sufficient to justify a 

mistrial on defendant’s motion, . . . does not bar retrial 

absent intent . . . to subvert the protections afforded by the 

Double Jeopardy Clause.” Id. at 675-76. Appellants bear the 

burden of proving specific intent to provoke a mistrial. 

United States v. Smith, 441 F.3d 254, 265 (4th Cir. 2006).

A district court finding as to intent to cause a mistrial 

is a factual finding this court must accept unless it is clearly 

erroneous. United States v. Johnson, 55 F.3d 976, 978 (4th Cir. 

1995). Under the clear error standard of review, this court 

will reverse only if “left with the definite and firm conviction 
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that a mistake has been committed.” United States v. Chandia, 

675 F.3d 329, 337 (4th Cir. 2012) (internal quotation marks 

omitted).

We conclude after review of the record and the parties’

briefs that Appellants have not met their burden to show clear 

error by the district court. Contrary to Appellants’ 

assertions, the record makes clear that, in sending the letters, 

the district court was motivated by a desire to be open and 

honest with the jury panel members about potential security 

concerns and concerns potentially bearing on their ability to 

serve as jurors, not by a desire to cause a mistrial. The 

record also makes clear that the district court orally confirmed 

on multiple occasions that it was ready and willing to proceed 

to a trial for Appellants, and we reject as without merit 

Appellants’ suggestions that we should deem these oral 

confirmations of only nominal relevance and conclude that the 

statements reflected the court’s intent to goad. We also reject 

as without merit Appellants’ challenge to the district court’s 

determination that the Double Jeopardy Clause did not bar 

retrial even if the decision between requesting a mistrial and 

potentially accepting a jury of less than 12 persons qualified 

as a Hobson’s choice. Accord United States v. Green, 636 F.2d 

925, 929 (4th Cir. 1980) (noting that when a prosecutor or the 

district court “acts erroneously but without such a malevolent 
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purpose [i.e., that of acting to provoke a mistrial], retrial is 

not precluded even though the error was such as to present the 

defendant with a Hobson’s choice between giving up his first 

jury and continuing a trial tainted by prejudicial, judicial[,] 

or prosecutorial error” (internal quotation marks omitted)).

Appellants also argue in the alternative that Government 

counsel and the FBI agent provoked their mistrial motions. 

We conclude, however, that the record supports the district 

court’s determination that the agent and Government counsel did 

not act to provoke a mistrial. The agent notified the parties 

and district court about law enforcement’s concerns regarding 

the individuals on the jury list in light of Uhuru’s actions and

believed gang connections because law enforcement had a duty to 

notify the jury panel members, whom it believed to be at some 

level of risk as a consequence of Uhuru’s actions. The agent, 

however, proposed that the panel members be notified of the 

disclosure of their personal information after the conclusion of 

the trial to ensure that the trial proceedings were not 

disrupted.

The record also makes plain that Government counsel had 

neither the desire nor intent to cause a mistrial. Government 

counsel voiced opposition to the granting of a mistrial on 

multiple occasions and even affirmed the Government’s 

willingness to sever Mathis and Uhuru from their codefendants 
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and proceed to trial against them alone. Further, at the point 

the agent addressed the district court and counsel at the in 

chambers conference, Government counsel had made an opening 

statement for the Government and had subpoenaed its witnesses to 

testify; given these circumstances, there was no reason for 

counsel to desire a mistrial. Appellants’ arguments to the 

contrary are rejected, and we further reject as meritless their 

remaining extraneous arguments for overturning the district 

court’s order.

III.

Accordingly, we affirm the district court’s order. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process. 

The clerk’s office is directed to issue the mandate forthwith.

AFFIRMED