## 1997 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-5-1997 

# Lo ve v . M or t on

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-5783

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1997

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1997 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

## R e c omme nde d C it a t ion

" L o v e v . M or t on " (1997). 1997 D e cisio n s

. P a pe r 95. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1997/95Filed May 5, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5783

HAROLD LOVE

v.

WILLIS MORTON, Administrator-NJSP; PETER VERNIERO,* Attorney General,

Appellants.

Appeal from the United States District Court for the District of New Jersey (D.C. No. 95-cv-06309)

Argued: Tuesday, March 25, 1997

Before: SLOVITER, Chief Judge , STAPLETON and ALDISERT, Circuit Judges

.

(Filed May 5, 1997)

Jack J. Lipari (argued) Jeffrey S. Blitz
OFFICE OF PROSECUTOR OF
ATLANTIC COUNTY
1470 19th Avenue
P.O. Box 2002 Mays Landing, NJ 08330

ATTORNEYS FOR APPELLANTS

___________________________________________________ ______________ *[Pursuant to Rule 43(c) of F.R.A.P.]Stephen M. Latimer (argued)

LOUGHLIN & LATIMER
9 Kansas Street Hackensack, NJ 07601

ATTORNEY FOR APPELLEE

OPINION OF THE COURT

ALDISERT, Circuit Judge

This appeal by the State of New Jersey from a judgm ent of the district court granting Harold Love's 28 U.S .C. § 2254 petition for writ of habeas corpus requires us to d ecide whether the court properly ruled that Petitioner ha d been placed in former jeopardy prior to his trial and co nviction for robbery in state court.

Love defended in two state court trials on charges of robbery and armed robbery. At the close of testimon y on the first day of his first trial, the trial judge d eclared a mistrial for personal reasons. The next day, a seco nd trial began before another judge and a second jury. The n ew trial judge denied Love's motion to dismiss the ind ictment on grounds of double jeopardy. Following his convic tion and sentencing, Love unsuccessfully appealed to the state appellate court on the double jeopardy issue. State v. Love

, 282 N.J. Super. 590, 660 A.2d 1246 (App. Div. 1995) (per curiam). Love then filed a habeas corpus petition i n district court. After conducting an evidentiary hearing, the district
court ruled that Love's first trial was terminated without his consent and without manifest necessity. The court g ranted Love's petition on the basis of double jeopardy. Lo ve v. Morton , 944 F. Supp. 379 (D.N.J. 1996). The State of New Jersey has appealed.

At stake here are protections assured by the Double Jeopardy Clause of the Fifth Amendment, which provi des: "[N]or shall any person be subject for the same off ence to be twice put in jeopardy of life or limb . . . ." A s the Supreme Court teaches:

2The constitutional protection against "double

jeopardy" was designed to protect an individual fro m being subjected to the hazards of trial and possibl e conviction more than once for an alleged offense. I n his Commentaries, which greatly influenced the generati on that adopted the Constitution, Blackstone recorded:

". . . the plea of auterfoits acquit , or a former acquittal, is grounded on this universal maxim of t he common law of England, that no man is to be brought into jeopardy of his life more than once fo r the same offence."

Green v. United States , 355 U.S. 184, 187 (1957) (citing 4 William Blackstone, Commentaries 335).

The Double Jeopardy Clause not only ensures the fin ality of criminal judgments, but also protects a defendan t's "valued right to have his trial completed by a part icular tribunal." Arizona v. Washington , 434 U.S. 497, 503 (1978) (quoting United States v. Jorn , 400 U.S. 470, 484 (1971)). As urged by New Jersey, however, this "valued right

. . . must in some instances be subordinated to the publi c's interest in fair trials designed to end in just jud gments."
Wade v. Hunter , 336 U.S. 684, 689 (1949). Accordingly, the Supreme Court has crafted certain exceptions to the literal language of the Clause. New Jersey presented two of these exceptions to the district court and urges them upo n us here.

Mistrials declared with the defendants' consent do not bar a later prosecution. United States v. Dinitz , 424 U.S. 600, 607 (1976). Even without their consent, defend ants may be retried when, "taking all the circumstances into consideration, there is a manifest necessity for th e [mistrial], or the ends of public justice would oth erwise be
defeated."1 United States v. Perez , 22 U.S. (9 Wheat.) 579,

___________________________________________________ ______________

1. New Jersey relies on "manifest necessity" becaus e the phrase "ends of public justice" is not applicable to the facts of t his case. See Illinois v.
Somerville , 410 U.S. 458, 468-471 (1973) (holding that the en ds of public justice justify a mistrial where the trial contains a defect such that a conviction, if obtained, could be upset at will on appeal or in collateral proceedings).

3580 (1824) (Justice Story coining the phrase "manif est necessity"). Our task is to decide whether there wa s manifest necessity for declaring the mistrial and w hether Petitioner expressly or impliedly consented to the mistrial. New Jersey also argues that the court erred in cond ucting an evidentiary hearing in the § 2254 proceeding. Th e district court had jurisdiction under 28 U.S.C. § 2 254. We have jurisdiction under 28 U.S.C. § 1291. The appea l was timely filed under Rule 4, Federal Rules of Appella te
Procedure.

Where a district court holds an evidentiary hearing in a habeas proceeding, this court reviews the district court's findings of fact for clear error. Lesko v. Owens , 881 F.2d 44, 50-51 (3d Cir. 1989). We exercise plenary revie w over the district court's legal conclusions. Yohn v. Lov e , 76 F.3d 508 (3d Cir. 1996).

I.

Love stood trial in the Atlantic County, New Jersey Superior Court in two trials before two juries on c harges of robbery and armed robbery. The first jury was sworn and testimony began on the morning of June 15, 1993. Du ring the testimony of the State's fourth witness, the ju ry was excused so that counsel could argue an issue relati ng to "chain of custody." Counsel and the trial judge, Ja mes Citta, repaired to chambers to discuss the matter. At about 3:30 p.m., the judge received a telephone call from his wife, who was exceedingly upset because her mother had di ed unexpectedly. The judge later testified that he was close to his mother-in-law and was upset not only at her unt imely passing, but also at his inability to be immediatel y available to comfort his wife. The prosecuting attorney testi fied that Judge Citta was "very upset" and "visibly shaken." Judge Citta called the presiding criminal judge, Judge Braithwaite, and briefly discussed the situation.

The prosecutor has described the events that took p lace in Judge Citta's chambers after the call from the j udge's
wife:

We waited for him to get off the telephone, and he explained to us that, as I indicated, his wife was very

4distraught that her--her mother had died suddenly

and unexpectedly and she had been unable to reach anyone. He further indicated that he was an hour aw ay from home and that he had to leave. He had to get o ut of here and go home and so forth, and it was appare nt
there was stress on his face and in his demeanor an d his voice and so forth that he--there was an urgenc y to
his need to leave the courthouse. He said that `I d on't know what I'm going to do about this case. I don't know if we'll mistry it or not. I'm not sure what t he procedure should be. I'm going to call Judge Braithwaite,['] which is what he did. He phoned Jud ge Braithwaite in our presence. He discussed the situa tion with Judge Braithwaite including the fact of the St ate's witnesses having just arrived from Canada yesterday afternoon and then--that there being some wish on t he part of the State that the case proceed, whether th at could be effected through the assignment of another judge to pick up the case from that point on or to start the case anew, whatever; but he discussed the matte r with Judge Braithwaite; and after he got off the telephone, he advised us that he was going to mistr y the case. Now, needless to say, counsel and I in th at position were in the situation where we both had an interest in the case proceeding from that point on, but
neither of us was in a situation where we could tel l Judge Citta `Forget your wife and forget your mothe rin-law's death. Let's get on with this trial.' I me an there was an urgency and an emergent situation here that none of us had previously encountered.

State v. Love , 660 A.2d at 1248-1249.

Judge Citta testified at the evidentiary hearing in the district court that he did not remember asking coun sel for their input or consent to the mistrial:

I do not recall asking either counsel if they conse nted to a mistrial. I'm not the sort of judge that asked for permission or asked for consent. Generally in
situations like this when I have made a decision--a nd the decision had been made--and my recollection is that I informed them that this is what I was going to do

5and to please go in the courtroom and get the jury in

there as quickly as possible.

Love v. Morton , 944 F. Supp. at 381 n.3. 7

After his conversation with Judge Braithwaite, Judg e Citta notified counsel that he would declare a mist rial, and
counsel returned to the courtroom. Defense counsel later
testified that the time between his return to the c ourtroom and the judge's return was "five to ten minutes at the most." Judge Citta addressed the jury:

Ladies and gentleman, I am going to declare a mistr ial in this case. It has nothing to do with either of t he litigants, their--the attorneys or the defendant or you. I just received a phone call that my mother-in-law passed away this afternoon, and I have some things I must attend to as a result of that, and I will not be
available for the rest of this week. Due to the scheduling problems--normally what I would do is I would continue the case and dismiss you for the balance of this week and have you come back next week and we would finish it, but due to some scheduling problems that obviously could not be anticipated and the difficulty that it causes for v arious witnesses in the case, I'm going to declare a mistr ial.

State v. Love , 660 A.2d at 1248. After declaring the mistrial, Judge Citta immediately returned to his chambers. H e left the courthouse shortly thereafter. The prosecutor g ave fifteen minutes as a "ballpark estimate" of the tim e that expired between the call from Judge Citta's wife an d the time Judge Citta left the courtroom.

At the time Judge Citta declared the mistrial, anot her judge, Judge Alvarez, was available to complete the trial. In fact, Judge Alvarez had been a spectator in the cou rtroom during some of the day's proceedings. Nevertheless, Judge
Braithwaite instructed counsel to return the follow ing morning to pick a new jury. Later that afternoon, J udge Braithwaite assigned Judge Alvarez to begin a new t rial in the morning.

When asked during the district court hearing whethe r he had considered prior to declaring a mistrial that " there

6might be double jeopardy problems," Judge Citta rep lied:

"Never crossed my mind, no." Apparently no one else involved in this case considered the possibility of double jeopardy until defense counsel returned to his offi ce and began discussing the case with his colleagues. At t hat point he began to realize the potential implications of t he mistrial. The following morning, defense counsel as ked Judge Alvarez to dismiss the charges on double jeop ardy grounds. Judge Alvarez denied the motion, the trial proceeded, and Love was convicted and sentenced to 30

years.

Love appealed to the Superior Court Appellate Divis ion, arguing that his conviction was invalid because his second trial violated double jeopardy principles. State v. Love , 660 A.2d at 1247. In affirming Love's conviction, the A ppellate Division emphasized that Love's mistrial was not th e result of bad faith or improper motive on the part of the trial judge or the prosecuting attorney. Id . The New Jersey Supreme Court denied certification. State v. Love , 142 N.J. 572, 667 A.2d 189 (1995).

The district court proceedings followed. After exam ining the record and conducting an evidentiary hearing, t he court
determined that Love's conviction was invalid. The court found that the mistrial was not required by manifes t necessity, and that defense counsel's failure to ob ject did not constitute implied consent. The court granted L ove's petition for habeas relief, but stayed issuance of the writ pending the result of this appeal.

II.

Before addressing the double jeopardy issue, we wil l consider whether it was proper for the district cou rt to conduct an evidentiary hearing. New Jersey suggests that an evidentiary hearing was improper in light of the recent 28 U.S.C. § 2254 amendments included in the Antiterrorism and Effective Death Penalty Act of 19 96, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996). Se ction 2254(e)(2) now provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court sh all

7not hold an evidentiary hearing on the claim unless the

applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable;

or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts of the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).

Love filed his § 2254 petition on December 5, 1995. Congress enacted the amendments on April 24, 1996. As
we stated in Burkett v. Love , 89 F.3d 135, 138 (3d Cir. 1996), "we need not digress to determine the effect of [the 1996 amendments] on the present action, filed, as i t was,
before the amendments were enacted." See also Boria v. Keane , 90 F.3d 36, 37-38 (2d Cir. 1996) (per curiam) (because the death penalty sections contain an expl icitly retroactive provision and the other sections do not

, Congress intended the latter to have only prospecti ve effect). But see Lindh v. Murphy , 96 F.3d 856 (7th Cir. 1996) (en banc), cert. granted , 117 S. Ct. 726 (1997).

Even if we were to give retroactive effect to the 1 996 amendments to § 2254, we would not conclude that th e district court erred in conducting an evidentiary h earing.2 Section 2254(e)(2) applies to applicants who "faile d to

___________________________________________________ ______________

2. The district court, without discussion, also con cluded that an evidentiary hearing would be appropriate under the 1996 amendments: "Adopting the majority view on retroactivity, the C ourt need not revisit its decision to order an evidentiary hearing beyond noting that the Court would have ordered an evidentiary hearing under the new 28 U.S.C. § 2254(e)(2) as well." 944 F. Supp. at 381 n.1.

8develop the factual basis of a claim in State court

proceedings." In this case, Love did not "fail" to develop the
basis of his claim.

Judge Citta's abrupt declaration of a mistrial made it impossible for Love to develop the record at the ti me of the mistrial. Neither defense counsel nor the prosecuti ng attorney was given the time or opportunity to comme nt on the mistrial decision or to suggest that the decisi on be delayed until the next morning. In the words of the prosecutor: "I mean there was an urgency and an eme rgent situation here that none of us had previously encou ntered." Following the judge's decision to declare a mistria l, the attorneys were ordered to return to the courtroom f or the sole purpose of the court's notification to the jur y that the trial was aborted. Under these circumstances, we co nclude that Love was unable to develop the basis of his cl aim at
trial.

The following morning, Love's counsel moved to dism iss the indictment on double jeopardy grounds. Defense counsel and the prosecutor gave narrative accounts of the events of the previous afternoon and the trial cour t deemed these accounts to be a satisfactory basis for denyi ng the motion, thus ending the double jeopardy matter at t he trial level. Love was unable to fully develop the factual basis of his claim at that time because of Judge Citta's unavailability. Love had no opportunity at that poi nt to inquire, as he later did in the federal hearing, in to the judge's consideration of the available alternatives to a
mistrial.

Similarly, we conclude that Love was unable to deve lop the basis of his claim in state court post-convicti on proceedings. In New Jersey "an issue may not be considered in post-conviction relief proceedings if the question was decided on direct appeal." State v. Bo ntempo

, 170 N.J. Super. 220, 233, 406 A.2d 203 (1979) (citi ng State
v. Johnson , 43 N.J. 572, 592, 206 A.2d 737 (1965)); see N.J. Cr. R. 3:22-5 Bar of Ground Expressly Adjudica ted. After the Appellate Division affirmed Love's convic tion on the basis of the limited trial court record, Love c ould not raise the double jeopardy issue and present additio nal evidence in a post-conviction proceeding.

9Under these circumstances we are unwilling to concl ude

that Love failed to develop the factual basis of hi s claim in the state court proceedings. We conclude that facto rs other than the defendant's action prevented a factual rec ord from being developed. See Statement by President William J. Clinton Upon Signing S. 1965, 32 Weekly Compilation of Presidential Documents 719 (April 29, 1996) (#AB AD 8E# 2254(e)(2)] is not triggered when some factor that is not fairl y attributable to the applicant prevented evidence fr om being developed in State court."). Although the President 's statement is not evidence of congressional intent, we refer to it because we agree with his interpretation of t he plain language of § 2254(e)(2), and we find no contrary interpretation in the legislative history of the 19 96 amendments to § 2254.

III.

Jeopardy attached when the first jury was empaneled
and sworn. See Crist v. Bretz , 437 U.S. 28, 35-38 (1978). Termination of proceedings after jeopardy attaches, without defendant's consent by motion or otherwise, may bar reprosecution. United States v. Jorn , 400 U.S. 470 (1971). Our jurisprudence does not prohibit retrial followi ng termination if a defendant consents or waives the r ight to assert double jeopardy, or when there is manifest n ecessity to terminate the first trial. Oregon v. Kennedy , 456 U.S. 667, 673 (1982); Arizona v. Washington , 434 U.S. 497 (1978); United States v. Dinitz , 424 U.S. 600 (1976); Illinois
v. Somerville , 410 U.S. 458 (1973).

We now consider whether the mistrial was required b y manifest necessity. To demonstrate manifest necessi ty, the
state must show that under the circumstances the tr ial judge "had no alternative to the declaration of a m istrial." United States v. McKoy , 591 F.2d 218, 222 (3d Cir. 1979). The trial judge must consider and exhaust all other possibilities. Id

.

Love argues that the court failed to exhaust the possibilities of (1) excusing the jury overnight so the parties could explore the option of continuing the trial wi th the same jury and a different judge; and (2) continuing the trial

10with Judge Alvarez and the same jury the next day, or as

soon as Judge Alvarez could familiarize herself wit h the trial transcript.

Love explains that the New Jersey Rules of Court pr ovide for the substitution of judges in situations such a s this. Rule 1:12-3(b) provides that upon the disability of a judge during trial:

another judge may be designated to complete the tri al as if having presided from its commencement, provided, however, that the substituted judge is ab le to become familiar with the proceedings and all of the testimony therein through a complete transcript
thereof.

Judge Alvarez was available to begin trial the same afternoon that Judge Citta declared a mistrial, or the following morning. Judge Alvarez could easily have become familiar with the transcript because she was presen t in the courtroom during parts of the trial, the transcript consisted only of 122 pages and the tape recording covered on ly three hours. The brute fact is that under Rule 1:12-3(b), Judge Alvarez could have been designated to complete the trial the next morning as easily as starting a second trial.

The State argues that the district court had ration al reasons for rejecting the alternatives to mistrial. The State suggests that the alternative of excusing the jury overnight was properly rejected because the court would not h ave been able to tell the jury how long the trial would be delayed. The State also argues that it would have b een incongruous to substitute a new judge into a case i n which another judge had made various evidentiary rulings, and that it would have been particularly inappropriate to substitute Judge Alvarez into a trial "mid-stream" because
she was new to the bench.

We are not impressed by these arguments. They do no t make out a case of manifest necessity. A mistrial i s not manifestly necessary when the testimony lasts less than one full day, and a judge who has observed part of the trial is available to resume the proceedings the next mor ning. As a matter of law, declaring a mistrial in this case was not manifestly necessary when the decision to declare a mistrial

11vel non could have been postponed to the next morning.

The delay would have given both the prosecutor and defense counsel, as well as the court, adequate tim e to consider alternative solutions to the sudden emerge ncy. All judicial decisions should be based on calm delibera tion. When it comes to decisions squarely implicating the serious consequences of the Double Jeopardy Clause, the nec essity for collected and composed contemplation assumes a
fortiori proportions. There was no legitimate reason for making the mistrial decision during a time of distr aught distraction. The court could have easily rendered a decision the next morning through one of three judicial offi cers: the original trial judge, the presiding criminal court judge or the judge who presided at the second trial. At that time, the alternatives for aborting the trial or completing i t with a new judge could have been properly considered.

IV.

Having concluded that the mistrial was not manifest ly necessary, we now consider whether Love's counsel consented to the mistrial by failing to raise an ob jection.

Mistrials declared with the defendant's consent do not bar later prosecution. United States v. Dinitz , 424 U.S. 600, 607 (1976). The courts of appeals have taken differ ent approaches in determining whether defense counsel's failure to object to a mistrial constitutes implied consent. The First, Fourth, Fifth, Seventh and Eleventh Circ uits have adopted a rule that defendants give implied co nsent to a mistrial if they have an opportunity to object bu t fail to
do so. See United States v. DiPietro , 936 F.2d 6, 9-10 (1st Cir. 1991); United States v. Ham , 58 F.3d 78, 83 (4th Cir. 1995); United States v. Nichols , 977 F.2d 972, 974 (5th Cir. 1992); Camden v. Circuit Court , 892 F.2d 610, 615 (7th Cir. 1989); United States v. Puleo , 817 F.2d 702, 705 (11th Cir. 1987). At the other extreme, the Sixth and the Nint h Circuits refuse to infer consent without some posit ive manifestation of acquiescence by the defense. See, e.g. , Glover v. McMackin , 950 F.2d 1236, 1240 (6th Cir. 1991);

Weston v. Kernan , 50 F.3d 633, 637 (9th Cir. 1995).

Although this court has not decided the issue in ipsissimis verbis , the teachings of United States ex. rel.

12Russo v. Superior Court , 483 F.2d 7 (3d Cir. 1973), give

persuasive direction. Russo involved a mistrial caused by jury deadlock. After the jury deliberated for sever al days without reaching a verdict, the judge called the ju ry to the courtroom and declared a mistrial without any advan ce notice to counsel. The defendant was retried and co nvicted. When we received the case on appeal from a grant of federal habeas corpus relief, we held that the Doub le Jeopardy Clause prohibited a second trial. On the q uestion of implied consent, we said:

While the better practice may be to object as soon as counsel learns that a mistrial is to be granted, appellant's counsel was in a difficult situation. H e had no advance warning or notice that a mistrial was to be declared . . . The Supreme Court's conclusion in Un ited
States v. Jorn may also be applicable in this situation:

`. . . [I]ndeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so.'

Also, to have objected in front of the jury might h ave prejudiced appellant for trying to "show up" the tr ial judge, especially if some members of the jury actua lly wanted to go home despite their civic obligation. I n this situation, we cannot penalize appellant for failing to object sooner.

Id . at 17 (citations omitted).

It is clear from our holding in Russo that we will not infer
consent from defense counsel's silence unless there was some opportunity to object. What constitutes adequa te opportunity, however, is a question which we must d ecide
here. Love contends that his counsel did not have a meaningful opportunity to object because of the "emotionally charged atmosphere of the courtroom."

Given the constitutional dimension of a double jeop ardy violation, we must proceed with caution in inferrin g consent from counsel's failure to object. Our previ ously stated admonition reminds us that close cases regar ding

13the propriety of a mistrial "should be resolved in favor of

the liberty of a citizen." Russo , 483 F.2d at 17.

Under the circumstances of this case, we conclude t hat Love's counsel did not have a meaningful opportunit y to object to the trial judge's declaration of a mistri al. First, the judge made no inquiry of counsel regarding the prop riety of
a mistrial. He did not invite their comments or ask them to propose alternatives. Cf. United States v. Buljubas ic , 808 F.2d 1260, 1265-1266 (7th Cir. 1987) ("If a judge s hould say: `I think a mistrial would be a good idea, but think this over and let me know if you disagree', the defendan t's silence would be assent.").

Second, the judge returned to the courtroom to decl are a mistrial only five or ten minutes after informing c ounsel of his intent to do so. In other circumstances, this w indow of time might be adequate. In this case, however, give n the
suddenness of the mistrial declaration and the hect ic atmosphere surrounding the proceedings, the brief p eriod of time afforded little meaningful opportunity for thoughtful and reflective decision-making.

Third, when the judge declared the mistrial and dismissed the jury, he immediately returned to his chambers and quickly left the courthouse. The judge 's swift departure did not afford a reasonable opportunity t o raise an objection. See United States v. Bates , 917 F.2d 388, 393 (9th Cir. 1990) (finding no consent where judge dec lared a mistrial, left the courtroom and ignored defendant' s request for a sidebar); Lovinger v. Circuit Court , 845 F.2d 739, 744 (7th Cir. 1988) ("It appears from the record that t he judge actually left the courtroom as he finished his stat ement. He was gone before the defense had any reasonable opportunity to consider the import of his statement and act upon it.").

Fourth, the atmosphere of the proceedings would hav e made it difficult to object, even if it had occurre d to defense counsel to do so. We agree with the district court' s assessment: "although objecting to Judge Citta's mi strial declaration could have been accomplished with due c are and respect, Judge Citta's grief and the urgency of his familial obligations made such a feat considerably more difficult." 944 F. Supp at 386-387.

14After considering all the circumstances, we conclud e that

Love had no meaningful opportunity to object to the declaration of a mistrial. Accordingly, there was n o implied consent. Because there was no manifest necessity to declare the mistrial, and no express or implied con sent to the mistrial by the defendant, we perceive no excep tion to the Double Jeopardy Clause's requirement that an individual may not be subjected "to hazards of tria l and possible conviction more than once for an alleged o ffense."
Green v. United States , 355 U.S. 184, 187 (1957).

We have considered all arguments presented by the parties and conclude that no further discussion is

necessary.

The judgment of the district court will be affirmed

.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

15