1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-5-1997

Love v. Morton

Precedential or Non-Precedential:

Docket 96-5783

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Recommended Citation

"Love v. Morton" (1997). 1997 Decisions. Paper 95.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/95
Filed 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 judgment 

of the district court granting Harold Love's 28 U.S.C. § 2254 

petition for writ of habeas corpus requires us to decide 

whether the court properly ruled that Petitioner had been 

placed in former jeopardy prior to his trial and conviction 

for robbery in state court. 

Love defended in two state court trials on charges of 

robbery and armed robbery. At the close of testimony on 

the first day of his first trial, the trial judge declared a 

mistrial for personal reasons. The next day, a second trial 

began before another judge and a second jury. The new 

trial judge denied Love's motion to dismiss the indictment 

on grounds of double jeopardy. Following his conviction 

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 in 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 granted 

Love's petition on the basis of double jeopardy. Love 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 provides: 

"[N]or shall any person be subject for the same offence to 

be twice put in jeopardy of life or limb . . . ." As the 

Supreme Court teaches: 

 2 
The constitutional protection against "double 

jeopardy" was designed to protect an individual from 

being subjected to the hazards of trial and possible 

conviction more than once for an alleged offense. In his 

Commentaries, which greatly influenced the generation 

that adopted the Constitution, Blackstone recorded:

". . . the plea of auterfoits acquit, or a former 

acquittal, is grounded on this universal maxim of the 

common law of England, that no man is to be 

brought into jeopardy of his life more than once for 

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 finality 

of criminal judgments, but also protects a defendant's 

"valued right to have his trial completed by a particular 

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 public's 

interest in fair trials designed to end in just judgments." 

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 upon 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, defendants 

may be retried when, "taking all the circumstances into 

consideration, there is a manifest necessity for the 

[mistrial], or the ends of public justice would otherwise be 

defeated."1 United States v. Perez, 22 U.S. (9 Wheat.) 579, 

_________________________________________________________________ 

1. New Jersey relies on "manifest necessity" because the phrase "ends of 

public justice" is not applicable to the facts of this case. See Illinois v.

Somerville, 410 U.S. 458, 468-471 (1973) (holding that the ends 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). 

 3 
580 (1824) (Justice Story coining the phrase "manifest 

necessity"). Our task is to decide whether there was 

manifest necessity for declaring the mistrial and whether 

Petitioner expressly or impliedly consented to the mistrial. 

New Jersey also argues that the court erred in conducting 

an evidentiary hearing in the § 2254 proceeding. The 

district court had jurisdiction under 28 U.S.C. § 2254. We 

have jurisdiction under 28 U.S.C. § 1291. The appeal was 

timely filed under Rule 4, Federal Rules of Appellate 

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 review over 

the district court's legal conclusions. Yohn v. Love, 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 charges of 

robbery and armed robbery. The first jury was sworn and 

testimony began on the morning of June 15, 1993. During 

the testimony of the State's fourth witness, the jury was 

excused so that counsel could argue an issue relating to 

"chain of custody." Counsel and the trial judge, James 

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 died 

unexpectedly. The judge later testified that he was close to 

his mother-in-law and was upset not only at her untimely 

passing, but also at his inability to be immediately available 

to comfort his wife. The prosecuting attorney testified 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 place 

in Judge Citta's chambers after the call from the judge's 

wife: 

We waited for him to get off the telephone, and he 

explained to us that, as I indicated, his wife was very 

 4 
distraught 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 away 

from home and that he had to leave. He had to get out 

of here and go home and so forth, and it was apparent 

there was stress on his face and in his demeanor and 

his voice and so forth that he--there was an urgency to 

his need to leave the courthouse. He said that `I don'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 the 

procedure should be. I'm going to call Judge 

Braithwaite,['] which is what he did. He phoned Judge 

Braithwaite in our presence. He discussed the situation 

with Judge Braithwaite including the fact of the State's 

witnesses having just arrived from Canada yesterday

afternoon and then--that there being some wish on the 

part of the State that the case proceed, whether that 

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 matter 

with Judge Braithwaite; and after he got off the 

telephone, he advised us that he was going to mistry 

the case. Now, needless to say, counsel and I in that 

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 tell 

Judge Citta `Forget your wife and forget your motherin-law's death. Let's get on with this trial.' I mean 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 counsel for 

their input or consent to the mistrial: 

I do not recall asking either counsel if they consented 

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--and 

the decision had been made--and my recollection is 

that I informed them that this is what I was going to do 

 5 
and 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, Judge 

Citta notified counsel that he would declare a mistrial, and 

counsel returned to the courtroom. Defense counsel later 

testified that the time between his return to the courtroom 

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 mistrial 

in this case. It has nothing to do with either of the 

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 various 

witnesses in the case, I'm going to declare a mistrial. 

State v. Love, 660 A.2d at 1248. After declaring the mistrial, 

Judge Citta immediately returned to his chambers. He left 

the courthouse shortly thereafter. The prosecutor gave 

fifteen minutes as a "ballpark estimate" of the time that 

expired between the call from Judge Citta's wife and the 

time Judge Citta left the courtroom. 

At the time Judge Citta declared the mistrial, another 

judge, Judge Alvarez, was available to complete the trial. In 

fact, Judge Alvarez had been a spectator in the courtroom 

during some of the day's proceedings. Nevertheless, Judge 

Braithwaite instructed counsel to return the following 

morning to pick a new jury. Later that afternoon, Judge 

Braithwaite assigned Judge Alvarez to begin a new trial in 

the morning. 

When asked during the district court hearing whether he 

had considered prior to declaring a mistrial that "there 

 6 
might be double jeopardy problems," Judge Citta replied: 

"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 office and 

began discussing the case with his colleagues. At that point 

he began to realize the potential implications of the 

mistrial. The following morning, defense counsel asked 

Judge Alvarez to dismiss the charges on double jeopardy 

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 Division, 

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 Appellate 

Division emphasized that Love's mistrial was not the 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 examining 

the record and conducting an evidentiary hearing, the court 

determined that Love's conviction was invalid. The court 

found that the mistrial was not required by manifest 

necessity, and that defense counsel's failure to object did 

not constitute implied consent. The court granted Love'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 will 

consider whether it was proper for the district court 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 1996, Pub. 

L. No. 104-132, 110 Stat. 1214 (April 24, 1996). Section 

2254(e)(2) now provides: 

If the applicant has failed to develop the factual basis 

of a claim in State court proceedings, the court shall 

 7 
not 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 it 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 explicitly 

retroactive provision and the other sections do not, 

Congress intended the latter to have only prospective 

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 1996 

amendments to § 2254, we would not conclude that the 

district court erred in conducting an evidentiary hearing.2 

Section 2254(e)(2) applies to applicants who "failed to 

_________________________________________________________________ 

2. The district court, without discussion, also concluded that an 

evidentiary hearing would be appropriate under the 1996 amendments: 

"Adopting the majority view on retroactivity, the Court 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. 

 8 
develop 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 time of the 

mistrial. Neither defense counsel nor the prosecuting 

attorney was given the time or opportunity to comment on 

the mistrial decision or to suggest that the decision be 

delayed until the next morning. In the words of the

prosecutor: "I mean there was an urgency and an emergent 

situation here that none of us had previously encountered." 

Following the judge's decision to declare a mistrial, the 

attorneys were ordered to return to the courtroom for the 

sole purpose of the court's notification to the jury that the 

trial was aborted. Under these circumstances, we conclude 

that Love was unable to develop the basis of his claim at 

trial. 

The following morning, Love's counsel moved to dismiss 

the indictment on double jeopardy grounds. Defense 

counsel and the prosecutor gave narrative accounts of the 

events of the previous afternoon and the trial court deemed 

these accounts to be a satisfactory basis for denying the 

motion, thus ending the double jeopardy matter at the 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 point to 

inquire, as he later did in the federal hearing, into the 

judge's consideration of the available alternatives to a 

mistrial. 

Similarly, we conclude that Love was unable to develop 

the basis of his claim in state court post-conviction 

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. Bontempo, 

170 N.J. Super. 220, 233, 406 A.2d 203 (1979) (citing 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 Adjudicated. 

After the Appellate Division affirmed Love's conviction on 

the basis of the limited trial court record, Love could not 

raise the double jeopardy issue and present additional 

evidence in a post-conviction proceeding. 

 9 
Under these circumstances we are unwilling to conclude 

that Love failed to develop the factual basis of his claim in 

the state court proceedings. We conclude that factors other 

than the defendant's action prevented a factual record 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 AD8E# 2254(e)(2)] 

is not triggered when some factor that is not fairly 

attributable to the applicant prevented evidence from 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 the plain 

language of § 2254(e)(2), and we find no contrary 

interpretation in the legislative history of the 1996 

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 following 

termination if a defendant consents or waives the right to 

assert double jeopardy, or when there is manifest necessity 

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 by 

manifest necessity. To demonstrate manifest necessity, the 

state must show that under the circumstances the trial 

judge "had no alternative to the declaration of a mistrial." 

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 with the 

same jury and a different judge; and (2) continuing the trial 

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

soon as Judge Alvarez could familiarize herself with the 

trial transcript. 

Love explains that the New Jersey Rules of Court provide 

for the substitution of judges in situations such as this. 

Rule 1:12-3(b) provides that upon the disability of a judge 

during trial: 

another judge may be designated to complete the trial 

as if having presided from its commencement, 

provided, however, that the substituted judge is able 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 present in the 

courtroom during parts of the trial, the transcript consisted 

only of 122 pages and the tape recording covered only 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 rational 

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 have 

been able to tell the jury how long the trial would be 

delayed. The State also argues that it would have been 

incongruous to substitute a new judge into a case in 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 not 

make out a case of manifest necessity. A mistrial is 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 morning. As 

a matter of law, declaring a mistrial in this case was not 

manifestly necessary when the decision to declare a mistrial 

 11 
vel 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 time to 

consider alternative solutions to the sudden emergency. All 

judicial decisions should be based on calm deliberation. 

When it comes to decisions squarely implicating the serious 

consequences of the Double Jeopardy Clause, the necessity 

for collected and composed contemplation assumes a

fortiori proportions. There was no legitimate reason for 

making the mistrial decision during a time of distraught 

distraction. The court could have easily rendered a decision 

the next morning through one of three judicial officers: 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 it with a 

new judge could have been properly considered. 

IV. 

Having concluded that the mistrial was not manifestly 

necessary, we now consider whether Love's counsel 

consented to the mistrial by failing to raise an objection. 

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 different 

approaches in determining whether defense counsel's

failure to object to a mistrial constitutes implied consent. 

The First, Fourth, Fifth, Seventh and Eleventh Circuits 

have adopted a rule that defendants give implied consent to 

a mistrial if they have an opportunity to object but 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 Ninth 

Circuits refuse to infer consent without some positive 

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.

 12 
Russo 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 several days 

without reaching a verdict, the judge called the jury to the 

courtroom and declared a mistrial without any advance 

notice to counsel. The defendant was retried and convicted. 

When we received the case on appeal from a grant of

federal habeas corpus relief, we held that the Double 

Jeopardy Clause prohibited a second trial. On the question 

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. He had 

no advance warning or notice that a mistrial was to be 

declared . . . The Supreme Court's conclusion in United

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 have 

prejudiced appellant for trying to "show up" the trial 

judge, especially if some members of the jury actually 

wanted to go home despite their civic obligation. In 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 adequate 

opportunity, however, is a question which we must decide 

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 jeopardy 

violation, we must proceed with caution in inferring 

consent from counsel's failure to object. Our previously 

stated admonition reminds us that close cases regarding 

 13 
the 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 that 

Love's counsel did not have a meaningful opportunity to 

object to the trial judge's declaration of a mistrial. First, the 

judge made no inquiry of counsel regarding the propriety of 

a mistrial. He did not invite their comments or ask them to 

propose alternatives. Cf. United States v. Buljubasic, 808 

F.2d 1260, 1265-1266 (7th Cir. 1987) ("If a judge should 

say: `I think a mistrial would be a good idea, but think this 

over and let me know if you disagree', the defendant's 

silence would be assent."). 

Second, the judge returned to the courtroom to declare a 

mistrial only five or ten minutes after informing counsel of 

his intent to do so. In other circumstances, this window of 

time might be adequate. In this case, however, given the 

suddenness of the mistrial declaration and the hectic 

atmosphere surrounding the proceedings, the brief period 

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 to raise 

an objection. See United States v. Bates, 917 F.2d 388, 393 

(9th Cir. 1990) (finding no consent where judge declared 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 the judge 

actually left the courtroom as he finished his statement. 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 have 

made it difficult to object, even if it had occurred to defense 

counsel to do so. We agree with the district court's 

assessment: "although objecting to Judge Citta's mistrial 

declaration could have been accomplished with due care 

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. 

 14 
After considering all the circumstances, we conclude that 

Love had no meaningful opportunity to object to the

declaration of a mistrial. Accordingly, there was no implied 

consent. Because there was no manifest necessity to

declare the mistrial, and no express or implied consent to 

the mistrial by the defendant, we perceive no exception to 

the Double Jeopardy Clause's requirement that an 

individual may not be subjected "to hazards of trial and 

possible conviction more than once for an alleged offense." 

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