06-4195-cr

USA v. DeGennaro

* The Honorable J. Garvan Murtha, United States District Judge for the District of Vermont, sitting by desig nation. 1 UNIT ED S TAT ES COU RT OF A PP EALS F OR THE S ECOND C IRCU IT

_______________ August Term, 2006 (Argued: May

16, 2007 Decided: August 27, 2007 Amended October 17, 2007)

Docket Nos. 06-4195-cr, 06-4198-cr

_______________ U NITED S TAT ES OF A MERICA , Appellee ,

—v.— T OMO RAZM ILOV IC , K ENNETH J AEGGI , B RIAN B URKE ,

Defenda nts,

- andM ICHAEL D E G ENNARO , F RANK B ORGH ESE , Defenda nts-Appe llants

.

_______________ B e f o r e : M INER , K

ATZMANN , Circuit Judges, and M URTHA , District Judge

. *2 _______________ Appeal f rom an or der holdi ng that r etrial of the defe ndants wo

uld not viol ate the D ouble Jeopardy Clause and deny ing motions to bar retrial and dismiss the indictment. We hold that the decision of the tri al court

that ther e was “ma

nifest ne cessity

” to decl are a mis trial wa s an abuse of discr etion. Fu rther, w e hold tha

t a statement by

counsel i n support o f a motion f

or mistria l, quickly reconside

red, does not preclude the defendant fr om claiming that the Double Jeopardy Clause bars retrial. REVERSED A ND REMAN

DED

.

_______________ A PPEARING FOR A PPELLEE : D AVID J AMES , Assistant United States Attorney, of counse l, (Eric O. Corngold, Chief Assistant United States Attorney, of counsel , on the brief

) for Rosly nn R. Mauskopf, United States Attorney f or the Eastern District of New York, Brookly n, NY

A PPEARING FOR D EFE NDANTS -A PPEL LANTS : M ICHAEL S. S OMMER (Eugene I . Goldman on the brief

), McDermott Will & Emery LL P, New York, NY for DefendantAppellant Michael DeGennaro

B RADLEY D. S IMON (Brian D. Waller, Jeremy Weintraub on the brief ), Simon & Partners LL

P, New York, NY for Defend ant-App ellant F rank Borghese

_______________ K ATZMANN , Circuit Judge : The decision by a

district court to declare a mistrial is of great conse quence. The cas e at hand

calls on u s to revie

w such a r

uling, to determine whethe

r it was a n abuse of discretion for a trial court to decide that a sing le jury note indicating deadlock created a “man ifes t nec essit

y” to de clar e a mi stria

l. On t he re cord before us , we c oncl

ude t hat it was. We therefore hold that retrial of defenda nts-appellants Michael DeGennaro (“De Gennaro”) and3

Frank B orghe se (“B orghe se”) wo uld violate

the Doubl e Jeopard

y Cla use of the Fifth Amendmen

t. We also mu st decide

whether Borghese cons ented to t

he mistria l when he initially joined in h

is fellow defenda nt’s motion

for mistr ial but the n almost imme diately

chang ed his position. We find that Borghese did not deliberately forego his right to have his guilt deter mined by his original tribunal.

I. In May 2004, DeGennaro and Borg hese were named in a twenty -five count indictment charging the senior offic ers of Symbol Technolog ies, Inc. (“Sy

mbol”), a leading manufacturer of bar code scanners, with, inter alia , securi ties fra ud, mail fr

aud, wir e fraud , and con spiracie s to commit the same. DeGennaro had been Sy mbol’s Senior Vice President of Finance. A17

. Borghese had held various positions at Sy mbol including Senior Vice President and General Manager of Worldwide Sales and Services. De Gennaro and Borghese were named in two of the twenty-five c ounts in the indictment: Count One, conspiracy to commit securities fr aud, and Count Two, securities fraud. DeGenn aro and Borghes e stoo d tria l in t he Eas tern D istr ict of New Yor k befo re Ju dge Leonard Wexler, along with Kenne th Jaeggi (“Jaeggi”) , Symbol’s former Vice President of Financ e and Chie f Financ ial Offic er, who was named in twenty

-three of the twe

nty -five c ounts in the indictment. Their trial, which began on January 3, 2006, lasted for six weeks and involved te st im on y fr om fo rt y wi tn es se s. Th e j ur y be ga n i ts de li be ra ti on s o n t he af te rn oo n o f W ed ne sd ay, Februa ry 15, 2006. T

he juror s were a

llowed to l eave at

4:30 p.m. e ach day

so that a ju

ror coul d4

catch a 5:00 p.m. train. The jury deliberated for two days before adjourning for the President’s Day we ekend. During those deliberations the jury asked for read-backs of a w itness’s testimony and a portion of the conspiracy charge. Deliberations resumed on Tuesday , February 21, 2006. That afternoon, at 2:38 p.m., Judge Wexler announced that “[t]he jury said they need 15 more minutes. For what, I don’t know.” Less than ten minutes later the jury sent a note that asked “[D]oes each count require a unanimous decision?” Judge Wexler responded by sending bac k a note simply say

ing “yes.” On informing the parties of the jury ’s note Judge Wexler commented, “I g uess that’s the big thing we waited for. I told y

ou I had no idea what it was.” Court reconvened at 4:37 p.m.. Judge Wexler announced that he had a note fr om the jury. The noted stated in f ull: “Judge, We are at a dead lock. We have exhausted all our options. This has been going on since Thursday . P/S - We are ready to go home today . Thank you.” [sic ] After reading the note, Judge Wexler announced tha t he was going to “send them home and then I will get y our opinions as to wh at we do. ” DeGen naro’s c ounsel imme diately interjec ted: “With instructions to have them come back tomorrow.” The jurors then ca me into the courtroom and were sent home with instructions that they were not to discuss the case “until y ou are all back tomorrow.” After the jury

left, Judge Wexler informed the parties that they would “continue tomorrow the same way , that’s all. Unless someone wants me to declare a mistrial.” Jaegg i’s counsel moved for a mistrial. DeGennaro’s counsel spoke next and said: “Before I

make a similar application, Judge, I wonder if it makes se nse to inquire of the jury if the y have re ached a1 Borghese’s counsel moved af ter trial to have the record chang ed to reflect the statement he claims he made, but that motion was denied. 5 verdict as to any defenda nt on any count. I would con

cede tha t the note indicate s the answer is probably no.” Judge Wexler sought the views of the other parties. Borg hese’s counsel spoke first, and his response is a matter of some dispute. According to the trial tra nscript, he said only that he “would a sk for a m

istrial.” Borghese’s c ounsel cl aims that he said: “ I re quest a mis trial, but I join in [DeGennaro’s counsel’s] application that y our Honor poll the jury first to see if they have reached a verdict with respect to any of the individual defe ndants.” 1 The Government stated that it opposed the idea of polling the jury and that it opposed the motion for the mistrial. Jaeggi’s counsel also indicated that he opposed polling the jury . Judge Wexler said that he would “think about it,” and following a p ause in th e proce edings, declar ed a mistr ial “[i]n vie

w of the r equest made by two of the de fendants, and the note of the jury .” DeGennaro’s counsel immediately renewed his request that the Court “at least inquire whether [the jury had] rea ched a verdict as to any

defendant on any

count.” Borghese’s counse l stated that he agreed with DeGe nnaro’s counsel’s position. Judge Wexler did not respond but began to discuss

the sche duling of

a retria l. The Gov ernment

request ed that Judg e Wexler “h

old off [his] decision in granting a mistrial.” Judge Wexler responded by simply say

ing “No. I made it.” The Government made a second reque st for “some opportunity to submit some arg uments,” but that request was also denied. DeGennaro’s counsel then asked, “I take it, your honor, that y ou denied my reque st?” Jud ge Wex le r r es pon se d by

re ite ra tin g t ha t he ha d “ de cl ared

a m ist ria l. W ha t do es tha t me an ?6

You don’t

have to be

a geniu s to figu

re that o ut.” He a lso made c lear tha

t he was going to dismiss the jury: “I

will not spend the money for anothe r day. [The cour

troom deputy] is going to call them and the alternates and tell them that their service is over.” One of the Assistant United States Attorneys aske d for five minutes to consult with his office. The request was denied. When he renewed his request, Judge Wexler reluctantly granted it, but emphasized that he was unwilling to continue to discuss his decision: “But there is a mistrial. I ’m now talking about what date y

ou want to try the ca se.” Af te r t he br ea k, De Ge nn ar o’ s c ou ns el ag ai n r ai se d t he po ss ib il it y of po ll in g t he ju ry, noti ng that the ear lier j ury note h ad ask ed if t hey needed to be u nanim ous on each co unt. Judge Wexler responded: “Counsel, it is over. You are still arguing the point. I thought the Government wanted me to come back, and not y ou. Argue with y

our co-defendants.” DeGennaro’s c ounsel poi nted out that he re

present ed one ind

ividual a nd that “f or all I know this jury has rea

ched a verdict with respect to my client.” Judge Wexler retorted, “If you know it, I wish you would tell me.” Borghese’s counsel then stated: “F or the record, Mr. Borghe se opposes a motion for a mistrial, and we ask that you inquire —.” He was interrupted by Judge Wexler, who reminded him that he went on record asking for a mistrial and a sked, “Now you oppose a mistrial?” The following exchange then took place:

Borghese’s Counsel : Judge, we believe that the jury may have reache d a verdi ct. Judge Wexler : Counselor, it is too late. You already sa id you wanted a mistrial. You can’t take y our plea back. Borghese’s Counsel : I sa id we wan

ted a mistr

ial, but for you to inquire a s to whethe

r or not th ey

reache d a verdi ct.7 Judge Wexler : You didn’ t say that. You

said y ou joined i

n with [Jaeg gi’s coun sel]. Borghese’s Counsel : With [DeGennaro’s counsel] I said. Judge Wexler : [Jaeggi’s counsel] what do you sa y to that? Did he join in with you? Jaeggi’s Counsel : I asked for a mistrial. Judge Wexler : It is on the record. Jaeggi’s Counsel : I be lieve [Borghese ’s counse l] joined in w ith [DeGenna

ro’s cou nsel] and I

opposed them. Judge Wexler : You are

now say ing he jo ined in wit

h [DeGe nnar o’s c ounse l]? Jaeggi’s Counsel : I believe he did. Judge Wexler concluded the conversation by saying: “ It is all over for all of y ou.” The next day, Febr

uary 22, De Gennaro’s counsel wrote Judge Wexler to inform him that overnight he had received infor mation that the jurors had unanimously ag reed that DeGennaro and Bor ghese were no t guilty

, and that the dead lock they had ref erred t o in their n

ote was only with resp ect to Jaeg

gi. The letter r equeste d that the

jury be reca lled the next day

so that a voir dire of the jury c ould be conducted. On February 27, the parties appeared in court. DeGe nnaro’s counsel a gain asked for t

he jury to be rec alled an

d polled. T

his time he

was joine d in that re quest by both Bo rghese’ s and J aeggi’s couns el. Th e reque st was denie d. At t he Febr uary 27 hea ring, both DeGe

nnaro an d Borg hese sta ted that they

planned t o submit moti ons on “the double jeopardy issue.” As they had indicate d, Borghese and DeGe nnaro both moved to bar retrial under the Double Jeopardy Clause. The motions wer e denied in a Memorandum Order dated Aug ust 31, 2006. Judge Wexler found that he had “properly declared a mistrial following the jury ’s unambiguous note that it was genuinely deadlocked,” and therefore, tha t the Double Jeopardy8

Clause did not bar retrial. This appeal followed.

II. The Double Jeopardy Clause of the Fifth Amendment prevents the Government from putting a defendant in jeopardy twice for the same offense. U.S. Const. amend. V, cl. 2. “The constitutional protection against double jeopardy unequivocally prohibits a sec ond trial following an acquittal.” Arizona v. Washington , 434 U.S. 497, 503 (1978). This prohi bition ref lects a “constitutional policy of finality ” in the criminal context, United Sta tes v. Jo rn , 400 U.S. 470, 479 (1970) (plurality opinion), and is a principle that is “deeply

ingrained in . . . the AngloAmerican sy stem of jurisprudence.” Green v. United States , 355 U.S. 184, 187 (1957). Because jeopardy

attaches when the jury

is empaneled and sworn, Corey v. Dist. Court of Vt., Unit #1, Rutland Circuit , 917 F.2d 88, 90 (2d Cir. 1990), the protections afforded by the Do ub le Je op ar dy C la us e i nc lu de “t he de fe nd an t’ s v al ue d r ig ht to ha ve hi s t ri al be co mp le te d b y a particular tribunal.” Washington , 434 U.S. at 503 (internal quotation marks omitted). Even when a f irst trial is not comp leted, a

second prosecut

ion may be “gr ossly unfair” because it “incre ases the

financi al and emotional bu rden on the accus ed, prolongs the p eriod in w hich he is stigmatized by an unre solved accusation of wrongdoing, a nd may even e

nhance the risk that an innocent defendant may

be convicted.” Id. at 503-04 (footnotes omitted). Despite the importance of this right, retrial “is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charge s against the accused.” Id. at 505. As Justice Harlan explained:9

[A] mechanical rule prohibiting retrial whenever cir cumstances compel the dischar ge of a jury without the

defenda nt’s cons ent would

be too hig

h a price to pay for the

added assurance of personal sec urity and fre edom from governmental harassment which such a mechanical rule would pr ovide. . . . [A] defendant’s valued r ight to ha ve his tria l complete d by

a partic ular trib unal must in

some instance s be subor

dinated t o the publi c’s inter

est in fai r trials d esigne d to end in just judg ments.

Jorn , 400 U.S. at 480 (internal quotation marks and citation omitted). The Double Jeopardy Clause thus operates as a limit on the power of the trial court to require a defendant to stand trial a second time following a mistrial; retrial is permitted only when the original decision to declare a mistrial was compelled by “ manifest necessity.” United States v. Perez , 22 U.S. (9 Wheat.) 579, 580 (1824)

. The manif est nece ssity

standar d refle cts a re cogniti on that a c riminal tr ial is “even in the best of times, a complicated affair to mana ge,” Jorn , 400 U.S. a

t 479-80, a

nd that a rule tha t barre d retria

l whenev er an ap

pellate c ourt saw t

he need to decla re a mistr ial diffe rently would create undesirable pressures on trial judg es to see each trial through to completion, Washington , 434 U.S. at 509-10. We review the decision of a trial court that there is manifest nec essity to declare a mistrial for abuse of discretion. United Sta tes v. Kle in , 582 F.2d 186, 191 (2d Cir. 1978). The discretion afforded a trial judge in decla ring a mistrial is, of course, not boundless. As Justice Stevens observed in Washington , “a constitutionally protecte d interest is inevitably affe cted by any mistrial decision. . . . [R]eviewing courts have an obligation to satisfy themselves that . . . the trial judge exercised ‘sound discretion’ in declaring a mistrial.” 434 U.S. at 514. “[T]he classic example of manifest necessity is the discharge of a ge

nuinely deadlocke d jury.” United States v. Castellanos , 478 F.2d 749, 751 (2d Cir. 1973) (internal quotation marks10

omitted). The term “genuinely deadlocked” suggests more than an impasse; it invokes a moment where, if delibe

rations w ere to c ontinue, “ there exists a sign

ificant r isk that a verdict ma

y r esult from pressures inherent in the situation rather than the considere d judgment of all the jurors.” Washington , 434 U.S. a

t 509; see also U

nited State

s v. Golds tein , 479 F.2d 1061, 1068 (2d Cir. 1973) (“ Requiring

a jury to continue delibe

rations d espite g enuine a

nd irrec oncilabl e disagreement more often than not defe ats the ends of public justice; not only will such compulsion needlessly waste va luable judicial resources, it may coerce erroneous verdicts.” ). We grant particularly

broad discretion in reviewing the determination by a trial judge that there is manifest necessity for a mistrial due to a genuinely deadlocked jury

. Washington , 434 U.S. at 510. We recognize that “the trial court is in the best position to assess all the factors which must be considered in making a necessar ily discretionary

determination whether the jury will be able to reach a just verdict if it continues to deliberate,” id. at 510 n.28, and that when faced with a deadlocked jury , the trial judge must delicately balance the defendant’s “valued r ight to have hi s trial completed by a particu lar tribu nal” and “the publ ic’s inte

rest in fa ir trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 (1949). “Since the resolution of each double jeopardy question turns on the particular facts of each ca se, we mu st examine t he record to dete

rmine if, in fact, the jury

at [the def

endant’ s] first trial wa s genuinel

ydeadlocked.” Klein , 582 F.2d at 192 (emphasis added). We thus turn to the record to determine if it supports the trial judge’s conc lusion that he was confronted with a genuinely deadlocked jury

and, ther efore, that ther

e was a ma

nifest ne cessity

to decla re a mistr ial. While it is well established that this area of the law “abjures the application of any mechanical formula,” Illinois v . Somerv ille , 410 U.S. 458, 462 (1973), there are several fa ctors11

that we c onsider i

n review ing the d etermina tion that a jury was ge nuinely deadlocked. Be cause of the fact-intensive nature of the inquiry , these factors are not exhaustive; instead they represent useful guideposts for our review of the trial c ourt’s determination. First, we consider statements by the jury that it cannot ag

ree. See United States v. Vaiseta , 333 F.3d

815, 818 ( 7th Cir. 200 3); Jones v. Hogg , 732 F.2d 53, 56 (6th Cir. 1984). Such statements include both jury notes indicating deadlock and also statements made directly to the trial judge by

the jury. Cf. United Sta tes v. Ho rn , 583 F.2d 1124, 1129 (10th Cir. 1978) (noting that tria l court ha d recei ved jury note indic ating that jury

was unab le to ag

ree but had not dir

ectly discussed with jury whether they could rea

ch agreement before

declaring a mistrial). As the Seventh Circuit has observed: “[B]ecause the state of jury deliberations is ever-changing , prior evidence of deadlock is not alway s dispositive of a jury’s prese nt inability to reach a una nimous verdict. . . . [W]hen the record does not contain a statement by the jurors themselves that they cannot agree, review

of the district court's exercise of its discretion is more difficult.” United States v. Byrski , 854 F.2d 955, 962 ( 7th Cir. 198 8); see also United States v. Gordy , 526 F.2d 631, 636-37 (5th Cir. 1976) (finding that record was insufficie nt to determine that “no verdict could be reached,” despite statement by foreman that jury

was “hung,” because no dialog ue “was developed with jurors individually” a nd it could not be said with certainty that fur ther deliberations “would have proved futile”). Second, we consider the length and complexity of the trial. See Vaise ta , 333 F.3d at 818; Fay v. McCotter , 765 F.2d 475, 477 ( 5th Cir. 198 5); Jones , 732 F.2d at 56. Factors that may affect the complexity of the trial include the number of counts and the number of defenda nts. See Byrski , 854 F.2d at 963 (“The trial was complex and lengthy , involving seven defendants and12

multiple charges against eac h defendant.”). Third, we consider the a mount of time that the jury has deliberated, a factor g enerally r elated to the length and complexity of the trial. See id. (“Althou gh the le ngth of t he jury ’s delibe

ration wa s not exces sive cons idering the compl exity and length of the trial, neither was it so insubstantial as to cast doubt on the corre ctness of the judge’s mistrial declaration.”). Fourth, we consider the impact that further, forced deliber ations might have on a possible verdict. See Vaise ta , 333 F.3d at 818; Jones , 732 F.2d

at 56; Arnold v. McCarthy , 566 F.2d

1377, 1387(9th Cir. 1 978). I n conside ring thi s factor , we are

particu larly cognizant of the possibility that “[c]oercion of an a lready e xhausted jury to continue deliber ations may

induce ju rors to a ccommoda

te a ver dict which they

would not o therwise support.” Arnold

, 566 F.2d at 1387; see also Byrski , 854 F.2d at 963 (“ A court mu st also consider the effects of the jury ’s possible exhaustion and the impact coercing further deliberations might have had on the verdict.”). Finally, we c onsider what actions, if any , the trial judge took prior to declaring a mistrial to help it determine whether the jury was genuinely

deadlocked. Jones , 732 F.2d at 56 & n.1; Harris v. Young , 607 F.2d 1081, 1085 n.4 (4th Cir . 1979) (“ One major factor to conside

r in assessing the wisdom of the trial court’s action is whether a mistrial wa s necessary . If obvious and adequate alternatives to aborting the tr ial were disregarded, this sug gests the trial judge acted unjustifia bly .”); see also Dunkerley v. Hogan , 579 F .2d 14 1, 148 n.7 ( 2d Cir . 1978 ) (“[ W]e cannot approve the declaration of a mistrial when the record does not indicate that the mistrial was manifestly nec essary, in lig ht of the relatively br

ief interruption in the trial . . . and the availability of another

alternative to the mistrial declaration.”). As part of this analy sis, we consider alterna tives that the distri ct court

chose no t to pursue , recog nizing tha t a trial c ourt must13

be mindful of the possibility that any action it chooses to take might coerce a ver dict. The decis ion n ot to pursu e any parti cular a ltern ative is us ually wit hin t he dis creti on of t he tri al jud ge and the decision not to take any action at all is not necessarily an abuse of discretion. As we have re peatedl y ob served, “‘[p]er se

rules ar e inappr opriate in the mistr

ial context, and eve

ry case turns on its own facts.’” MacQueen , 596 F .2d at 82 (qu otin g Drayton v. Hayes , 589 F.2d 117, 122 (2d Cir. 1979)). Applying these

considerations to this record, we are not persuade d that the jury was genuinely deadlocked when the trial court declare d a mistrial. The single piece of evidence in the record that supports the tr

ial judg e’s conc lusion is the twenty -nine-word note f

rom the jur

y that it was “at a deadlock” and had “e xhausted all [its] options.” The trial judge did not discuss the extent of the deadlock referred to in the note with the members of the jury and did not ask them whether there was any

chance that further deliberations might produc e a verdict. The trial had lasted for six weeks. The trial judge himself described it as “c omplex.” The jury was consider ing twe nty -one sep arate c ounts ag ainst thre e defen dants, an d heard t estimony from for ty witnesse s. Despite

the substa

ntial leng th and com

plexity of the tri al, the ju

ry had only deliberated for three full day s when the mistrial was declared. There is no evidenc e from the record that further deliberations would have r isked producing a verdict that the jurors would not have othe rwise sup ported. T his was no t a case

where the jury

had bee n asked to

engag e in marathon deliberations or where there we re other indications that suggested a likelihood of a coerced verdict. Finally, there

were a number of actions that the trial court could ha ve taken short of declaring a mistrial, including instructing the jury to continue its deliberations, see, e.g. ,2 Though it was not discussed in our opinion, the Government’s trial brief in United

States v. Williams noted tha t the tria l court no t only

told the jur

y to continue deliber ating th e first three times that it indicated it was unable to reach a verdict but also g ave the jury supple mental instructions “urging them to attempt to reconcile their diffe rences of opinion if possible but cautioni ng them n

ot to aban don their views mer

ely to achie ve unanim

ity. ” Brief

and Appe

ndix for the United States at 70, 71, United States v. Williams , 205 F.3d 23 (2d Cir. 2000) (No. 99- 1327). 14 MacQueen, 596 F.2d a

t 79; inquir

ing of the jury

whether it was dea

dlocked w

ith respe ct to all defendants on all counts, see Klein , 582 F.2d at 189-90; 1 Leonard B . Sand et al., Modern Feder al Jury Instr uctions — Cr

iminal, ¶ 9 .07, I

nstruction 9-8 (Par

tial Ver dict) & C omment; giving the jury

an Allen charge, see Allen v. United States , 164 U.S. 4 92 (1896) ; United States v. Ruggiero , 928 F.2d 1289, 1299 (2d Cir. 1991) (reaffirming use of Allen charge); and instructing the jury about the possibility of reaching a partial ver

dict, see United States v. DiLapi , 651 F.2d 140, 147 ( 2d Cir. 198 1). Ther e is nothin

g in the r ecord that sugg ests why

the use of

any of these options wo

uld have c

reated a risk tha t the jury would re ach a ve

rdict tha t would not r

eflect i ts “considered judgment.” Washington , 434 U.S. at 509. We do not suggest that the trial court had to pursue any of the se options, but the decision not to pursue any of the m without any evidence in the record as to why

further action would have been inappropriate is a factor that we consider in assessing whether the trial judge abuse d his discretion. The failure to pursue any

of the alternatives also sets this case apart from other c ases where w e have u

pheld tria l courts’ determinations to d eclare a mistria l due to a g enuinely deadlocked jury

. See United States v. Williams , 205 F.3d 23, 36 (2d Cir. 2000) (mistrial declared only after tria

l judge was told by jur

y for four th time that it could not reach a verdict); 2 Joyner , 201 F.3d at 83 (finding manifest necessity where trial judge gave Allen charge and polled jury before dischar ging it ); White v. Keane , 969 F.2d 1381, 1382 -83 (2d Cir . 1992) (p er curi am)3 We decline DeGennaro’s invitation to adopt a per se rule for multi-defendant cases

requirin g the tr ial cour t, befor e discha rging a jury , to condu

ct an “in -person

inquiry of the jur y to verify that the de adlock is intractable and that further deliberations would be of no use,” as the appellants suggest that the Ninth Circuit has done. See Arnold v. McCarthy , 556 F.2d at 1387 (“Upon r eceivin g a comm unication from the

jury stating that it ca nnot ag ree, the trial cou rt must question the jury to determine indepe ndently whether f

urther deliberations might overcome the deadlock.”). As

we alre ady

have note d, the fa

ct that a t rial invol ves multipl e defen

dants is appropriately

considered in determining whether a jury was genuinely

deadlocked, but while the step of polling the jury ma y be a re asonable step, that determination is properly left to the sound discretion of the trial judge. 15 (finding manifest necessity where trial judge gave Allen charg e befor e rece iving de adlock note and then after receiving note, polled the jury, and aske d directly whethe r it was possible to reach a verdict); MacQueen, 596 F.2d a t 82 (find ing mani fest nec essity

where, in multi-de fendant , mult i-cou nt tri al, aft er recei ving n ote th at jur y had reache d verd ict on some c ount s, tri al jud ge first sent jury back f

or more deliberations then delivered modified Allen charge before de claring mistrial) ; Klein , 582 F.2d at 189-90 , 192 (fin

ding man ifest nec essity

where, after in

itial note indicating deadlock, jury

was read an Allen charge, sent back for a nother day of

deliberations and asked in a note from the trial judge whether the y had rea ched a verdict on any

count and whether, if a verdict had not been reached, it wa s possible for them to reach a verdict on any count); United States v. Beckerman , 516 F.2d 905, 908 (2d Cir. 1975) (affirming trial judge ’s conclusion that jury was dea

dlocked where trial judge spoke to jurors and a sked whether “with a little more time you feel y

ou might be able to reach a verdict” and construed defendant’s silence as agreement that sufficient time had passed)

. 3 Before concluding that re cord evidence sugge sts that the trial court abused its discretion in determining that the jury was genuinely

deadlocked, we consider any explanation offered by the trial court for its decision. While a trial judge is not constitutionally ma ndated to explain the16

decision to declare a mistrial if “the record pr ovides significant justification,” Washington , 434 U.S. at 516 -17, whe

n we are unable to discern from the r

ecord that a jury

was ge nuinely deadlocked, a tr

ial judg e’s expla

nation, e laborat

ing on the decision to decla re a mistr ial, can aid our inquiry. Here we do not have the benefit of any such elaboration. When the issue of a mistrial first arose, the parties were g iven an opportunity to state whethe r they supported or

opposed a mistrial, b

ut they were no t given t

he oppor tunity to discuss

the issue or to pre sent arg

uments to the court. The trial judge then made his initial decision rely ing on “the request made by two of the defendants, and the note of the jury .” The post-trial opinion does not offer any further insi ght; i nstea d it o nly reite rates the on e thin g the rec ord al ready make s clear , that the tr ial j udge received a note from the jury stating that it was “at a deadlock.” I n these circumstances, where the record does not indicate that there was g enuine deadlock, and the court has not provided an explanation for its conclusion or pointed to factors that might not be adequately reflected on a cold rec ord, we a

re unabl e to satisf

y ou rselves that the tr

ial judg e exerci sed “soun d discretion” in declaring a mistrial. Perez , 22 U.S. at 580. We therefore conclude that the protections aff orded by the Double Jeopardy

Clause bar the retrial of DeGennaro a nd Borghese.

III. When a def

endant moves for or consen ts to a mistr

ial, the D ouble Jeopa

rdy Clause usually imposes no bar to retry ing that defendant. United States v. Huang , 960 F.2d 1128, 1133 (2d Cir. 1992). “The reason for allowing a retrial in such circumstances is that when the4 While the G overnme nt origi nally opposed a

mistrial, i

t now cont

ends that the jury ’s note “left no room for doubt” that it was at a deadlock, and ar gues that the “contemporaneous rea ction of the government attorney s . . . does not support any particula r interpretation of the note, or any position on the necessity for a mistrial.” We a gree that the Government is not bound by its initial position on the decision to declare a mistrial, but we note a degre e of tension in the Government’s suggestion that while the initial reaction of its attorneys to the jury note should be complete ly d

isrega rded, the initial re action of

Borghese’s c ounsel wa s suffici ently consider ed to constitute a deliberate election to forego a valued right. 17 defendant requests a mistrial, he is deemed to have deliber ately elec ted to forgo his valued right to have his guilt or innocence determined befor e the first trier of fact.” Id. (internal quotation marks omit

ted). B y f

ocusing on whethe

r a defe ndant ele cted to f

orego that rig ht, we se ek to ensure “that the defendant retain primar y control over the

course to be followed in the event of [judicial or prosecutorial] error.” United Sta tes v. Din itz , 424 U.S. 600, 609 (1976). The Government conte

nds that B orghe se delibe

rately electe d to fore go his ri ght to ha ve his ca se proceed before his first jury when his counsel initially joined in Jaeggi’s motion for a mistrial. We disagree. While the r

ecord in dicates that Bor ghese initially joined in Jae ggi’s

motion, wit

hin seconds of the trial court declaring a mistrial Borghese stated that he joined in DeGenna ro’s request that the jury be

polled before any

decision on the mistrial was finalized. We view the immediac y with which B orghe se clar ified his p osition as s ignific ant. The trial re cord re flects that the moments following the receipt of the jury note indicating deadlock were marke d by confusion and uncertainty . To begin with, the parties were asked to state the ir positions on a mistrial within a few minutes of hearing about the jury ’s note and within seconds of the possibility of a mistrial being raised. A fter the mistrial was declared, the parties we re still trying to come to

grips with what ha

d taken pl ace and

to figur e out thei r positions

. 4 The Government5 DeGennaro’s c ounsel wa s cut off by t he Court w

hile makin

g this sta tement. 18 request ed that th e court “

hold off [it s] decision

in gran ting the mistrial” so it could

“submit some argume nts,” and then aske d for a f

ive minute

break “ before the Court t

akes any action” so it could “consult with [its] office.” DeGennaro continued to press his request that the jury be polled and seemed to suggest at one point that there was still time to ask the jury if further deliber ations wou

ld allow it t

o reach a verdict. 5 In short, Bor

ghese ’s change of posit

ion seems to reflect a harr

ied peri od in which all the p arties w ere stru ggling to formula

te their p ositions in response to the unexpected turn of events. Borghese’s chang e of position also had legal significance — the decision to declare a mistrial is not irreversible until the jury has bee n discharged. See Camden v. Circuit Court of the Second J udicial Cir

cuit , 892 F.2d 610, 616 n.7 (7th Cir. 1989) (“While the mistrial declaration alone was not a talismanic utterance, the discharg e and dispersal of the jury rendered the mistrial

a fait acco mpli. Once the jury is discha rged a nd has disp ersed, a

trial cou rt is unab le to reconsi der its int

ention to d

eclare a mistria l.”); United Sta tes v. Sm ith , 621 F.2d 350, 352 n. 2 (9th Cir. 1980) (“Until the jury wa s actually excused, the c ourt might have reconsidered its intention to decla re a mistr ial.”); see also U

nited State

s v. Estre mera , 531 F.2d 1103, 1109 (2d Cir. 1976) (affirming verdict where de fendant moved for a mistrial, it was granted, the de fendant then withdrew the motion, and the case was resumed). While the adama ncy of the state

ments of the trial judge following his initial mistrial declaration sugge st that he understood his decision to be final, the decision was by no means i

rreversible gi

ven that t he jury had alre ady

been sen t home with instructions to return the next day. I t was not unreasonable for Borg hese to believe that the trial judge, who had relied in part on the reque st of the “two defendants” in declaring tha t19

mistrial, might still reconsider that decision once Borghese ’s position was clarified. Because Borg

hese’s statement that he joined in DeGennaro’s re quest that the jury be polled (before the decision to declare a mistrial wa s finalized) was both immediate and was made while the trial cou rt could s till have c

hange d its decis ion, we be lieve Borghese cannot be

said to have deliberately

foregone his right to have his g uilt determined by his origina l tribunal.

IV. For the r easons se t forth ab ove, we hold that the retrial of both De Gennar

o and Bor ghese is barre d by

the Doubl e Jeopard

y Cla use. The August 3 1, 2006, O rder of the distri ct court

is REVERSED , and we REMAND for further proceedings c onsistent with this Opinion.