2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-5-2008

USA v. Cyril H. Wecht

Precedential or Non-Precedential: Precedential

Docket No. 08-2258

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-2258

 

UNITED STATES OF AMERICA

 v.

CYRIL H. WECHT,

 Appellant

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 06-cr-00026-001)

District Judge: Honorable Arthur J. Schwab

 

Argued August 4, 2008

Before: SMITH, FISHER

and VAN ANTWERPEN, Circuit Judges.

(Filed: September 5, 2008)
2

David R. Fine (Argued)

K&L Gates

17 North Second Street

18th Floor

Harrisburg, PA 17101

Jerry S. McDevitt

Mark A. Rush

K&L Gates

535 Smithfield Street

Henry W. Oliver Building

Pittsburgh, PA 15222

Richard L. Thornburgh

K&L Gates

1735 New York Avenue, N.W.

Suite 500

Washington, DC 20006

Attorneys for Appellant

Mary Beth Buchanan

Robert L. Eberhardt

Rebecca R. Haywood (Argued)

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Attorneys for Appellee

 

OPINION OF THE COURT
3

 

FISHER, Circuit Judge.

This appeal presents questions of both factual and legal

significance. Factually, we write yet another chapter in the

ongoing appellate saga surrounding the criminal prosecution of

Dr. Cyril H. Wecht, a renowned former county coroner whose

name and face have appeared in the media over the past several

decades. Legally, we decide issues surrounding one of the most

rooted and basic of our Constitution’s guarantees of individual

liberties: the right not “to be twice put in jeopardy of life or

limb” for the same offense. U.S. CONST. amend. V.

I.

The facts of Wecht’s celebrated past and more recent

criminal charges are amply described in our previous opinions

deciding interlocutory appeals in this matter. See United States

v. Wecht, 484 F.3d 194, 197-98 (3d Cir. 2007) (Wecht I); United

States v. Wecht, --- F.3d ----, 2008 WL 2940375, at *1 (3d Cir.

Aug. 1, 2008) (Wecht II). We therefore need not dwell on those

facts here.

We pick up the story on January 28, 2008, when trial

began after a week of jury voir dire proceedings. At issue were

forty-one counts of theft from an organization receiving federal

funds, and wire and mail fraud. After twenty-three trial days, on

March 17, 2008, counsel delivered closing arguments, and the

District Court instructed the jury. Among its many instructions

was the following:
4

“The number of offenses charged is not evidence

of guilt and should not influence your decision in

any way. You must separately consider the

evidence that relates to each charge, and you must

return a separate verdict for each offense.

For each offense charged you must decide

whether the government has proven beyond a

reasonable doubt that the defendant is guilty of

that particular offense.

Your decision on one offense, whether

guilty or not guilty, should not influence your

decision on any of the other offenses charged.

Each offense should be considered separately.”

The jury began its deliberations on March 18, 2008.

The following week, on March 27, 2008, the jury sent the

District Court a note that read: “Out of the 41 counts if any one

or more count the jury cannot come to unanimous agreement on,

does that constitute a hung jury?” The District Court consulted

with counsel and, with their consent, sent the following written

response to the jury:

“The answer to your question is ‘no.’ It is your

duty, as jurors, to consult with one another, and to

deliberate with a view to reaching an agreement if

you can do so without violence to your individual

judgment. Each of you must decide the case for

yourself, but do so only after an impartial
5

consideration of the evidence in the case with

your fellow jurors. In the course of your

deliberations, do not hesitate to re-examine your

own views, and change your opinion, if convinced

it is erroneous. But do not surrender your honest

conviction as to the weight or effect of evidence

solely because of the opinion of your fellow

jurors, or for the mere purpose of returning a

verdict.”

Another week later, on Thursday, April 3, 2008, the jury

sent a note to the District Court, which included the following

language:

“After considering all counts in a variety of ways

and in reconsideration of all individual opinions

according to the court instructions – we have

unanimously agree [sic] we have reached an

impasse & respectfully request direction from the

court. We agree additional deliberation would not

be helpful.”

The District Court read and showed this note to counsel and told

them that it was inclined to poll the jurors individually to ask

whether they were “hopelessly deadlocked” and whether further

deliberations would lead to a unanimous verdict, and then to

read to the jury Instruction 9.05 of the Third Circuit’s model

criminal jury instructions (Instruction 9.05).

After informing counsel of its intentions, the District

Court allowed them time to consider the issue. After counsel
6

deliberated, the Government suggested to the District Court that

it send to the jury a note asking if it could reach a unanimous

verdict on any of the counts because “the Government is not

convinced that the jury understands or perhaps is apprised that

a partial verdict is a possibility.” The Government then

suggested that, if the jury responded that it could not reach a

partial verdict, the District Court should then give Instruction

9.05, but not conduct individual polling.

Defense counsel objected to the Government’s proposed

course of action. He suggested instead that the District Court

bring the jurors into the courtroom and poll them individually,

but if each expressed that additional deliberations would not

break the deadlock, that the Court declare a mistrial and

discharge the jury.

The District Court decided to do what it had originally

suggested. Accordingly, it had the jurors return to the

courtroom. It polled them individually, asking the following

two questions: (1) “Do you agree that the jury is hopelessly

deadlocked?”; and (2) “Do you believe that further deliberations

would not lead to a unanimous verdict?” Each responded to

both questions affirmatively, i.e., that he or she believed the jury

to be hopelessly deadlocked and that additional deliberations

would not be helpful. The District Court then read Instruction

9.05 to them:

“Members of the jury, I am going to ask you to

return to the jury room and deliberate further. I

realize that you are having some difficulty

reaching unanimous agreement, but that is not
We have quoted Instruction 9.05 as it appears in our 1

model criminal jury instructions. What the District Court

7

unusual. And often after further discussion, jurors

are able to work out their differences and agree.

It is your duty, as jurors, to consult with

one another, and to deliberate with a view to

reaching an agreement if you can do so without

violence to individual judgment. Each of you

must decide the case for yourself, but do so only

after an impartial consideration of the evidence in

the case with your fellow jurors. In the course of

your deliberations, do not hesitate to re-examine

your own views, and change your opinion, if

convinced it is erroneous. But do not surrender

your honest conviction as to the weight or effect

of evidence solely because of the opinion of your

fellow jurors, or for the mere purpose of returning

a verdict. Listen carefully to what the other jurors

have to say, and then decide for yourself if the

government has proved the defendant guilty

beyond a reasonable doubt.

What I have just said is not meant to rush

or pressure you into agreeing on a verdict. Take

as much time as you need to discuss things.

There is no hurry.

With that instruction, I will return you to

the jury room. Thank you.”1
actually read to the jury does not differ from the model in any

material way.

8

The District Court then sent the jurors back to deliberate, which

they did for an additional twenty minutes that day.

After the jurors left the courtroom, the Government

renewed its request that the District Court ask the jurors

collectively if they could reach a partial verdict. The District

Court denied the request. After formal proceedings recessed,

the Government filed a motion requesting for the third time that

the District Court give the jury a partial verdict instruction. In

a written filing on April 4, 2008, Wecht’s counsel objected to

the proposed instruction and cross-moved for a mistrial. He

gave the following reason for mistrial:

“[T]he defense respectfully moves for the

discharge of the jury and declaration of a mistrial

in light of the jury’s unqualified individual

declarations that they are hopelessly deadlocked

and that further deliberations would not lead to

unanimous verdicts. Indeed, requiring a jury to

continue deliberations despite genuine and

irreconcilable disagreement more often than not

defeats the ends of public justice; not only will

such compulsion needlessly waste valuable

judicial resources, it may coerce erroneous

verdicts.”
9

Later that day, the District Court denied the Government’s

partial verdict instruction request, but did not at that time

address the defense motion for a mistrial.

On Monday, April 7, 2008, after the jury resumed its

deliberations for the first time since the prior Thursday, the

District Court entered an order denying Wecht’s written motion

for a mistrial. The jury deliberated for four hours on that day.

Shortly before 9:00 the next morning, April 8, 2008, the

District Court clerk telephoned counsel and entered the

following on its docket: “Counsel for the Government and

Defense and all parties are hereby ORDERED to appear today,

04/08/08 at 9:15 AM.” Neither the telephone call nor the

electronic notice described the purpose for which counsel were

summoned.

At 9:20 a.m. on April 8, 2008, with the jury present, the

District Court opened the proceeding as follows:

“THE COURT: Good morning. Thank you all

for gathering pursuant to the notice on the

Electronic Case Filing system.

For your and the jury’s safety and the

preserved good order, I would ask that you follow

the following instructions this morning:

Everyone should remain in their seats

throughout this proceeding from now until when

the jury and I exit the courtroom.
10

No one will be permitted to be running in

and out of the courtroom as happened last week.

Secondly, I expect everyone to be quiet,

and if anyone wants to make motions or

objections to this proceeding or whatever, they

may do so in writing on ECF, as we have done

throughout the trial.

If anyone is unwilling to abide by these

instructions, I will give you time now to exit.

Thank you for your assistance and

cooperation.

The jury has informed the bailiff that they

remain hopelessly deadlocked and are unable to

reach a unanimous verdict on the defendant’s

guilt on any of the 41 counts and are unable to

reach a unanimous verdict on the defendant not

being guilty of any of the 41 counts.

The jurors’ note will be marked as Court

Exhibit 13, and I have copies thereof, which you

can pick up when we’re done with this

proceeding, which has deleted the names of

presumably the foreperson and secretary.

The names of the jurors have not been

released pursuant to my Order of Court. Until the
11

Third Circuit determines otherwise, that will

remain in effect.

Thus, defendant is still charged with each

of the 41 counts with the constitutional

presumption of innocence as to each of the 41

counts.

It is the government’s responsibility to

decide whether or not to retry the defendant.

Does the government have a decision

today whether the government will retry the

defendant?

[GOVERNMENT]: We do, Your Honor,

and we will.

THE COURT: I would ask that by Friday

at noon that the government file a notice as to

which of the counts, which could be as few as one

or as many as the 41, which of the counts will be

tried in the retrial. Is the government prepared to

proceed immediately to retry the case?

[GOVERNMENT]: We are, Your Honor.

THE COURT: Is the defense prepared to

immediately retry the case?
12

[DEFENSE]: We will have several

motions to make before that happens.

THE COURT: Okay. Just for everyone’s

scheduling purpose, I will set the trial for May 7th

– excuse me – May 27th, which is the day after

Memorial Day, May 27, 2008, at nine a.m.

That should give defense and the

government sufficient time to file whatever

motions they wish to respectively file. On behalf

of the defendant, when would you like to file any

motions you wish to file, sir?

[DEFENSE]: I will need some time to

think about that. This is quite a surprise.

THE COURT: Okay. I know everyone

needs a little rest, so I appreciate that matter. I

would ask the defense, if you would kindly for

me, please file any motions you have by noon on

April 18, 2008.

If you find after reflection that date doesn’t

work for you, then just file an appropriate motion,

and I will work with you in that regard.

I will send out a scheduling order as to the

May 27th, 2008 date without prejudice to

whatever defendant’s motions will come before

me.
13

Before I declare a mistrial and discharge

the jury, I wish to express several things.

First of all, I want to thank our wonderful

court reporters . . . .”

After thanking various court personnel and the jurors, the

District Court stated: “I declare a mistrial. I discharge the jury

and the alternate jury . . . .” The jury note to which the District

Court referred but which, as indicated, was not shown to counsel

until after the jury was already discharged, stated in its entirety:

“Pursuant to court instructions the jury contends

we have exhausted all further deliberation efforts.

We agree unanimously that we are unable to

reach a unanimous verdict – on all 41 counts and

are essentially deadlocked in the case of United

States of America vs. Cyril H. Wecht.”

On Monday, April 14, 2008, Wecht filed a motion to

dismiss the indictment and preclude the Government from

further prosecution in violation of the Double Jeopardy Clause

of the Fifth Amendment. The Government responded on

April 17, 2008. The District Court denied the motion on

April 29, 2008.

In its twenty-one-page order denying the motion, the

District Court offered a number of rationales. First, the District

Court reasoned that, because Wecht had moved for a mistrial the

previous week, he is deemed to have consented to the

declaration of mistrial on April 8, 2008. Second, the District
14

Court asserted that Wecht consented to the mistrial because,

during the April 8, 2008 proceeding, his counsel did not object

to the mistrial. Third, the District Court concluded that “it

cannot be seriously disputed that the jury was hopelessly

deadlocked, and that, therefore, manifest necessity required

declaration of a mistrial and discharge of the jury.”

That same day, Wecht filed a notice of appeal to this

Court from the order denying dismissal of the indictment.

Wecht also filed a motion in the District Court seeking a stay of

the retrial pending appeal. The District Court denied that

motion on May 2, 2008, writing in its fifteen-page order that

Wecht’s appeal to the Third Circuit was “frivolous” and that he

was seeking “to delay these proceedings.” Wecht then filed an

emergency motion for a stay in our Court, which we granted on

May 8, 2008.

II.

We have jurisdiction over the District Court’s order

denying Wecht’s motion to dismiss the indictment on double

jeopardy grounds under the collateral order doctrine. Abney v.

United States, 431 U.S. 651, 659 (1977). Whether retrial is

permitted in accordance with the Double Jeopardy Clause

depends on whether the first trial has ended with a properly

declared mistrial. United States v. Rivera, 384 F.3d 49, 54 (3d

Cir. 2004). The degree of deference we accord to the District

Court’s mistrial declaration varies depending on why the Court

reached the decision, as well as whether it exercised sound

discretion in reaching it. See Arizona v. Washington, 434 U.S.
15

497, 507-10 & n.28 (1978). We will explore these degrees of

deference later in the opinion. See III.C, infra.

III.

A. The Ideal

We begin by discussing the hallmark of sound discretion

in this area: the procedures that district courts should follow

prior to declaring a mistrial based on a deadlocked jury. See

United States v. Dixon, 913 F.2d 1305, 1311 (8th Cir. 1990)

(“What we seek is assurance on the record that the district court,

in declaring a mistrial, acted responsibly and deliberately, and

accorded careful consideration to [the defendant’s] interest in

having the trial concluded in a single proceeding.” (internal

quotation marks omitted)). We find useful the Third Circuit’s

model criminal jury instruction 9.06, approved in January 2007,

which consists not of a jury instruction, but of the following

comment (Comment 9.06):

“If the jury indicates that it is still deadlocked

after the court has given instruction 9.05

(Deadlocked Jury – Return for Deliberations), the

Committee recommends the following procedure

be followed and recorded.

First, to determine whether a supplemental

charge is necessary, the court should question the

foreperson, but must take steps to ensure that the

foreperson does not reveal either the numerical

split on the jury or the position of the majority.
16

See United States v. Fiorilla, 850 F.2d 172, 175

(3d Cir. 1988); Government of Virgin Islands v.

Romain, 600 F.2d 435 (3d Cir. 1979). For

example, the court may address the foreperson as

follows:

‘Advise me of the status of

deliberations. If the jury is divided,

I do not want to know the numbers

or the direction. I only want to

know whether in your judgment

there is a reasonable probability

that the jury can arrive at a

unanimous verdict in this case if

sent back for further deliberations.’

Second, if the foreperson indicates that the

jury is deadlocked, the court should question each

juror, asking ‘Do you agree that there is a

hopeless deadlock which cannot be resolved by

further deliberations?’

Third, if jurors’ answers reflect that they

are deadlocked, the court should excuse the jury

and hold a hearing with counsel and the

defendant. The court should elicit the positions of

all the parties, taking particular care to get a

record of the position of the defendant(s) and

defense counsel on whether to declare a mistrial.

If the court declares a mistrial that is not required

by manifest necessity, the Double Jeopardy
17

Clause will bar a retrial of the case unless the

defendant consented to the mistrial. See United

States v. Dinitz, 424 U.S. 600 (1976); United

States v. Rivera, 384 F.3d 49 (3d Cir. 2004).

When the defendant does not consent to the

mistrial, the courts consider a number of factors to

determine whether the mistrial represents an

abuse of discretion and whether it bars further

prosecution:

1. a timely objection by the defendant;

2. the jury’s collective opinion that it

cannot agree;

3. the length of jury deliberations;

4. the length of the trial;

5. the complexity of the issues

presented to the jury;

6. any proper communications

between the judge and jury;

7. the effects of exhaustion and the

impact of coercion of further

deliberations on the jury.

See [citation].
18

If the court concludes that a mistrial is

necessary, the court should make an explicit

finding of manifest necessity. For example, the

court may state:

‘Based on an evaluation of the

following factors (state factors

relevant to case), I find that the jury

is unable to reach a verdict, that

further deliberations would be

futile, and that there is no

alternative but to declare a mistrial

for reasons of manifest necessity

and to dismiss the jury.’

Fourth, the court should call the jury back

into the courtroom and discharge the jurors.”

Today we hold that district courts in our Circuit should follow

the above procedure prior to declaring a mistrial based on a

deadlocked jury. We use the word “should” instead of “must”

because the orderly process of jury deliberations rests in the

discretion of the trial judge, and we do not wish to bind his

hands without regard to the factual and procedural history in any

individual case. See United States v. Trala, 386 F.3d 536 (3d

Cir. 2004) (“it is well-established that [a district court] has broad

discretion to determine how long jury deliberations should

continue”), vacated on other grounds, 546 U.S. 1086 (2006).

We also note that some of our sister circuits have interpreted the

Supreme Court’s precedent in Washington to hold that “the trial

judge does not have to make an explicit finding of ‘manifest
19

necessity’ or expressly state that particular alternatives were

considered and rejected.” Dixon, 913 F.2d at 1311.

Again, we do not turn Comment 9.06 into a mandate, but,

all else being equal, a district court’s explanation of its decision

on the record helps the parties, this Court on appeal, and the

district court itself in its exercise of sound discretion. See id.

As such, we believe that there are few situations in which the

procedure outlined in Comment 9.06 would not be the most

desirable one to follow. Thus, it should be followed in cases

involving a mistrial declaration based on a deadlocked jury.

In addition, district courts must follow Federal Rule of

Criminal Procedure 26.3, which provides:

“Before ordering a mistrial, the court must give

each defendant and the government an

opportunity to comment on the propriety of the

order, to state whether that party consents or

objects, and to suggest alternatives.”

Here, we use the word “must” because the Rule itself uses that

word. We note further that Comment 9.06 states that “[t]he

court should elicit the positions of all the parties” in the third

step of its outlined procedure. We do not equate that

recommendation in Comment 9.06 with the mandate in Rule

26.3 because doing so would attach a precise time stamp to Rule

26.3 when its text merely states, “[b]efore ordering a mistrial.”

At the same time, district courts should be mindful to follow

Rule 26.3 at a sensible moment, which often will be one that is
It appears that the District Court gave Instruction 9.05 2

partially on March 27, 2008 in response to the jury’s question

pertaining to partial verdicts, and then gave it fully on April 3,

2008 in response to the jury’s first expression of deadlock. It

20

closer to the actual moment in which a mistrial is declared. We

will explain why shortly. See III.B, infra.

We have therefore summarized the ideal set of

procedures – Comment 9.06 combined with Rule 26.3 at an

opportune moment – to be followed by district courts when

faced with the decision to declare a mistrial leading to the

discharge of a deadlocked jury.

B. The Violation

The District Court here did not follow the ideal set of

procedures as we have outlined in the previous subsection. It is

clear that, after the jury indicated that it was still deadlocked

after receiving Instruction 9.05 in full, the Court did not follow

Comment 9.06. It did not question the foreperson, poll the

jurors individually, or “hold a hearing with counsel and the

defendant” outside the presence of the jury; it performed those

actions before giving Instruction 9.05. The sequence matters

because each time Instruction 9.05 or a similar supplemental

charge is given, the jury deliberates further, and any progress

that is made during those additional deliberations might be

unaccounted for when the trial judge then declares a mistrial

precipitously. By following Comment 9.06 just prior to

declaring a mistrial, the trial judge ensures that those additional

deliberations are reflected in his decisionmaking.2
could be argued, then, that the District Court followed much of

Comment 9.06 after it gave the partial Instruction 9.05. But the

ideal, nonetheless, would have been for the District Court to

follow all of Comment 9.06 after giving the full Instruction 9.05

and the jury again expressing deadlock.

21

Further, the District Court did not “make an explicit

finding of manifest necessity,” under the seven factors listed in

the third step of Comment 9.06, prior to calling the jurors back

into the courtroom and discharging them. The Court’s ex post

order on April 29, 2008 comes far too late to serve to comply

with Comment 9.06 when a mistrial was declared back on

April 8, 2008. Still, because today’s decision leaves Comment

9.06 as a recommendation instead of turning it into a mandate,

we do not state that the Court “violated” Comment 9.06.

Federal Rule of Criminal Procedure 26.3, however, is

another matter. Despite the District Court’s proclamation that

“[t]here can be no doubt, on the record before this Court, that

over a five day period, this Court fully and faithfully complied

with Fed. R. Crim. P. 26.3 in letter and in spirit,” we find on the

present record that the Court did indeed violate the Rule. We

repeat that the Rule’s text states only that a court must consult

with counsel “[b]efore ordering a mistrial.” The Court here did

so consult before ordering a mistrial, specifically on April 3,

2008.

But April 3, 2008, was five days prior to when the

District Court actually declared the mistrial. On the one hand,

we could interpret “before ordering a mistrial” literally as any

time (no matter of what duration) before ordering a mistrial, but
22

doing so would effectively render the Rule a nullity. The 1993

Advisory Committee Notes to the Rule state, inter alia:

“The Rule ensures that a defendant has the

opportunity to dissuade a judge from declaring a

mistrial in a case where granting one would not be

an abuse of discretion, but the defendant believes

that the prospects for a favorable outcome before

that particular court, or jury, are greater than they

might be upon retrial.”

Thus, consulting with counsel too early (and never doing so

again prior to declaring mistrial), albeit within the literal text of

the Rule, is not consistent with the spirit and purpose of the

Rule. This is so because whether “the prospects for a favorable

outcome” are greater in counsel’s view depends on the full

panoply of factual and procedural information available to

counsel just prior to mistrial declaration, rather than well before

that when counsel does not yet have that information. In sum,

intervening events might change trial strategy, such that, when

a trial judge follows Rule 26.3 too early, the corresponding

hearing or consultation fails to represent the parties’ position as

accurately as it would were Rule 26.3 followed at a moment

closer to the actual mistrial declaration.

The question then, is whether, in light of the present

record, the District Court violated Rule 26.3 by “following” it

too early. We answer this question in the affirmative. It was

laudable for the District Court to consult with counsel as to what

it should do after the jury’s first note expressing deadlock.

Nevertheless, too many intervening events transpired between
23

that moment and the ultimate mistrial declaration for the Court

to rely on its initial compliance with Rule 26.3 as satisfying its

obligation to follow the Rule for all intents and purposes until

the jury’s discharge. The intervening events included:

(1) giving the jury Instruction 9.05 on a Thursday, (2) twenty

minutes of additional deliberation that day, (3) recessing the jury

for the weekend, (4) four additional hours of deliberation on the

following Monday, and (5) a second jury note expressing

deadlock phrased differently from the first. These intervening

events heightened the possibility that counsel would have

different views or arguments to make had the District Court

consulted with them again after the events.

Moreover, the record in this case indicates that, when the

District Court received the first jury note of deadlock on April 3,

2008, it had no intention to declare a mistrial at that time. In

fact, it had already expressed to counsel its intention to poll the

jurors individually and give them Instruction 9.05 before

defense counsel requested a mistrial. The consultation that the

District Court had with counsel on that date, therefore, was not

pursuant to Rule 26.3, that is, designed to elicit counsel’s views

with respect to the propriety of a mistrial; rather, the

consultation was a tangential one designed (1) to inform counsel

of the first jury note expressing deadlock, and (2) to elicit their

views as to how to respond to the note. Had defense counsel not

asked for a mistrial at that juncture, that outcome might not have

figured in the consultation at all.

Without the ability to resort to its conduct on April 3,

2008, the District Court has no basis on which to aver that it

followed Rule 26.3 “fully and faithfully . . . in letter and in
We are well aware that the District Court would have 3

needed the jury in the courtroom to conduct polling, but the

record is abundantly clear that the District Court had no

intention of polling the jurors or following any other portion of

Comment 9.06 or Rule 26.3 on April 8, 2008, other than simply

discharging the jury.

24

spirit.” This is so because the District Court did not come close

to following Rule 26.3 at the April 8, 2008 proceeding. First, it

did not show or read to counsel verbatim the second jury note

until after mistrial was already declared. Second, it explicitly

instructed counsel “to be quiet, and if anyone wants to make

motions or objections to this proceeding or whatever, they may

do so in writing on ECF, as we have done throughout the trial.”

Third, it announced the new development and its corresponding

intentions in the jury’s presence. At no time during that 3

proceeding did the District Court solicit counsel’s views as to

the propriety of the impending mistrial declaration. The lack of

information to counsel rendered difficult their ability to make an

informed decision; the effective gag order rendered difficult any

attempt by counsel to urge the District Court to follow Rule 26.3

at that time; and the fact that this all occurred in the jury’s

presence rendered difficult the ability of defense counsel to

object or even ask for a sidebar, for fear that the jury would

blame the defense for prolonging its term of service.

C. The Remedy

Our finding that a Federal Rule of Criminal Procedure

has been violated does not, however, answer the question of

what the remedy is for the violation. Wecht has moved to
Rule 41(d) has since been amended. 4

25

dismiss the indictment. Insofar as the motion is based on an

alleged violation of the Double Jeopardy Clause caused by a

retrial, we will address that argument shortly. But we must first

reject Wecht’s contention that the indictment must be dismissed

merely because the District Court violated Rule 26.3.

“The federal criminal rules are not constitutional

imperatives. . . . They are procedural only.” United States ex

rel. Gaugler v. Brierley, 477 F.2d 516, 523 (3d Cir. 1973). We

reaffirmed this principle a year later in United States v. Hall,

505 F.2d 961 (3d Cir. 1974), in which we held that a violation

of Federal Rule of Criminal Procedure 41(d), which mandated

that the officer executing a search warrant properly inventory

the property taken, did not automatically result in the 4

suppression of that property as evidence. 505 F.2d at 963. We

explained that the irregularity in the officer’s inventory

procedure in that case was “not ‘constitutionally significant’

under the Fourth Amendment.” Id. Although Rule 41(d)

“outlines detailed procedures, it does not expressly address the

remedies, if any, which flow from a failure to adhere to those

procedures.” Id. “[W]e do not believe that it was intended that

every violation of the procedures in the rule, however

insignificant and however lacking in consequences, should give

rise to the remedy of suppression.” Id. at 964.

Like Rule 41(d), Rule 26.3 contains no textual indication

of what the remedy for any violation should be. In United States

v. Berroa, 374 F.3d 1053 (11th Cir. 2004), the Court of Appeals

for the Eleventh Circuit discussed this precise question and
The analysis is different when the defendant consents to 5

a mistrial. See Love v. Morton, 112 F.3d 131, 133 (3d Cir.

1997). At oral argument the Government conceded that Wecht

26

acknowledged that it was the first court of appeals to do so. Id.

at 1056. Despite the district court’s violation of Rule 26.3, the

court of appeals found that the Rule “is not designed to change

the substantive law governing mistrials.” Id. (quoting 1993

Advisory Committee Notes). It then held that a violation of the

Rule “is one factor to be considered in determining whether a

trial judge exercised sound discretion” in declaring a mistrial.

Id. at 1058-59. Notably, the court declined to hold that a

violation of the Rule requires dismissal of the indictment to

avoid a violation of the Double Jeopardy Clause. We agree that

a violation of Rule 26.3 does not always mean that a mistrial

was declared improperly as a matter of constitutional law, and

accordingly hold that the remedy for a violation of Rule 26.3 is

not automatically the dismissal of the indictment.

We thus proceed to explore the main issue raised in this

appeal: whether, under the substantive law governing mistrials,

the indictment against Wecht must be dismissed because the

District Court improperly declared a mistrial. See Rivera, 384

F.3d at 54. “[I]t has long been held that the declaration of a

mistrial sua sponte by a trial court does not automatically bar a

future trial for the same offense.” Crawford v. Fenton, 646 F.2d

810, 816 (3d Cir. 1981). The Double Jeopardy Clause permits

retrial following a mistrial when, “taking all the circumstances

into consideration, there is a manifest necessity for the

[mistrial].” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580

(1824). “The question of whether ‘manifest necessity’ existed 5
did not consent to the mistrial in this case, so we proceed only

under the “manifest necessity” analysis.

27

in the case before us is a mixed question of law and fact over

which we exercise plenary review.” Rivera, 384 F.3d at 55. At

the same time, where a mistrial is “premised upon the trial

judge’s belief that the jury is unable to reach a verdict, long

considered the classic basis for a proper mistrial[,] . . . [t]he trial

judge’s decision to declare a mistrial when he considers the jury

deadlocked is . . . accorded great deference by a reviewing

court.” Washington, 434 U.S. at 509-510.

“The realities of litigation preclude a precise definition of

‘manifest necessity’.” Rivera, 384 F.3d at 55. Facts that might

demonstrate manifest necessity include a hopelessly deadlocked

jury, juror bias, and the unavailability of a prosecution witness.

Id. at 55-56, 57. The Supreme Court has made it clear that

appellate scrutiny decreases when the mistrial is based on a

deadlocked jury, rather than the absence of a witness:

“[T]he strictest scrutiny is appropriate when the

basis for the mistrial is the unavailability of

critical prosecution evidence, or when there is

reason to believe that the prosecutor is using the

superior resources of the State to harass or to

achieve a tactical advantage over the accused.

. . . 

At the other extreme is the mistrial premised upon

the trial judge’s belief that the jury is unable to
28

reach a verdict, long considered the classic basis

for a proper mistrial. The argument that a jury’s

inability to agree establishes reasonable doubt as

to the defendant’s guilt, and therefore requires

acquittal, has been uniformly rejected in this

country. Instead, without exception, the courts

have held that the trial judge may discharge a

genuinely deadlocked jury and require the

defendant to submit to a second trial. This rule

accords recognition to society’s interest in giving

the prosecution one complete opportunity to

convict those who have violated its laws.

Moreover, in this situation there are especially

compelling reasons for allowing the trial judge to

exercise broad discretion in deciding whether or

not ‘manifest necessity’ justifies a discharge of

the jury. On the one hand, if he discharges the

jury when further deliberations may produce a fair

verdict, the defendant is deprived of his ‘valued

right to have his trial completed by a particular

tribunal.’ But if he fails to discharge a jury which

is unable to reach a verdict after protracted and

exhausting deliberations, there exists a significant

risk that a verdict may result from pressures

inherent in the situation rather than the considered

judgment of all the jurors. If retrial of the

defendant were barred whenever an appellate

court views the ‘necessity’ for a mistrial

differently from the trial judge, there would be a

danger that the latter, cognizant of the serious
The difference in deference depending on the reason for 6

mistrial shows why Wecht should not analogize his case entirely

to our decision in Rivera. Although it articulates binding legal

principles, Rivera is based on facts bearing little resemblance to

those in this case. There, the district court declared a mistrial

because of frequent delays, interruptions, and juror inactivity

occasioned by the unavailability of the Government’s key

witness due to a leg injury. We held that the mistrial was

improperly declared, emphasizing that “[w]hat makes this

declaration . . . particularly troubling is that it was due to the

absence of a prosecution witness.” 384 F.3d at 57.

29

societal consequences of an erroneous ruling,

would employ coercive means to break the

apparent deadlock. Such a rule would frustrate

the public interest in just judgments.”

Washington, 434 U.S. at 508-10. In other words, while 6

manifest necessity is ultimately a legal issue over which we

exercise plenary review, we accord considerable deference to a

district court’s judgment as to the existence of a deadlocked jury

that manifestly necessitates a mistrial.

Here, the stated reason for mistrial was a deadlocked

jury; we therefore turn to the record to determine whether it

supports the District Court’s conclusion that the jury was

hopelessly deadlocked. Although the question of manifest

necessity “abjures the application of any mechanical formula,”

Illinois v. Somerville, 410 U.S. 458, 462 (1973), the following

non-exhaustive, fact-intensive factors aid our appellate review
30

of the District Court’s determination of manifest necessity in the

context of deadlocked juries:

“1. a timely objection by the defendant;

2. the jury’s collective opinion that it cannot

agree;

3. the length of jury deliberations;

4. the length of the trial;

5. the complexity of the issues presented to

the jury;

6. any proper communications between the

judge and jury;

7. the effects of exhaustion and the impact of

coercion of further deliberations on the

jury[;]

8. whether the court provided counsel an

opportunity to be heard;

9. whether the court considered alternatives

to a mistrial; and

10. whether the court’s decision was made

after adequate reflection.”
31

Comment 9.06 (factors one through seven); United States v.

Byrski, 854 F.2d 955, 961 (7th Cir. 1988) (factors one through

seven); United States v. Brown, 426 F.3d 32, 36-37 (1st Cir.

2005) (factors eight through ten); see also United States v.

Razmilovic, 507 F.3d 130, 137-39 (2d Cir. 2007) (all ten

factors). Again, our enumeration of these factors is meant to

guide district courts and our appellate review in a clear fashion;

we do not mean to suggest that all factors are relevant in all

cases or that some other appropriate consideration might not

animate a district court’s determination.

We address each factor in turn, beginning with factors

eight through ten because they focus on the District Court’s

procedures (and hence sound discretion) in rendering its

decision and impact the degree of deference we otherwise would

accord under Washington. We note preliminarily that factor

eight mirrors Rule 26.3, and we equate them for purposes of this

discussion. Next, we already have stated that the District Court

fell short of the ideal with respect to its decisionmaking process;

not only did it ignore Comment 9.06, it also violated Rule 26.3.

But we have also held that these failures do not automatically

result in the remedy of dismissal of the indictment. In Berroa,

the Eleventh Circuit explained:

“Although Rule 26.3 now mandates that which

was previously strongly advised, the failure to

hear from the parties has invariably been a factor

to be considered when applying the manifest

necessity test. Consistent with the adoption of

Rule 26.3, a trial court’s failure to hear from the

parties remains as one of several factors to be
32

considered in determining whether the trial court

exercised sound discretion. Consistent with the

manifest necessity test, the extent to which a Rule

26.3 violation indicates a lack of sound discretion

must be considered and resolved based upon the

individual and varying circumstances of each

case. As Rule 26.3 mandates that a trial court

provide the parties an opportunity to be heard, the

failure to comply with that mandate necessarily

creates a strong suggestion that a trial judge did

not exercise sound discretion.”

374 F.3d at 1058; see also Rivera, 384 F.3d at 56 (“[t]he

dialogue fostered by Rule 26.3 ensures that only those mistrials

that are truly necessary are ultimately granted”); United States

v. Bates, 917 F.2d 388, 396 (9th Cir. 1990) (“trial courts are

much more likely to have exercised sound discretion when they

listen to the parties before declaring a mistrial”).

Today we hold, in accordance with our sister circuit, that

a violation of Rule 26.3 lessens the degree of deference we

accord to a district court’s finding of manifest necessity. Under

Washington, we generally give the highest degree of deference

to a district court’s judgment that a deadlocked jury manifestly

necessitates a mistrial. 434 U.S. at 508-10. But “the deference

accorded the trial judge’s finding of manifest necessity can

disappear, even in the classic case of a hung jury, when the trial

judge has not exercised sound discretion.” Berroa, 374 F.3d at

1057 (citing Washington, 434 U.S. at 510 n.28). Exactly how

much deference is lessened is not an exact science: we still are

much more likely to sustain a mistrial declaration based on a
33

genuinely deadlocked jury than on any other basis, but our

review will be somewhat more rigorous when we perceive

procedural flaws in a district court’s decision.

Our deference to the District Court’s determination of

manifest necessity in this case is further decreased by factors

nine and ten – whether the court considered alternatives to a

mistrial and whether it made its decision after adequate

reflection. See Bates, 917 F.2d at 396 (“A trial court’s abrupt

declaration of a mistrial suggests that it failed to exercise sound

discretion.”). Although the District Court gave Instruction 9.05

as an alternative to mistrial on April 3, 2008, it did not consider

whether it might be fruitful to give it or another supplemental

instruction again on April 8, 2008. We acknowledge that it is

possible that the District Court might have considered

alternatives or given additional reflection to the matter in its

subjective mind. But we decline to credit these private thoughts

– assuming arguendo that they existed – under factors nine and

ten of our review when they do not manifest themselves on the

record. See id. at 395 (“Determining that a mistrial was proper

and retrial permissible because reversal was certain is an

objective, not subjective, inquiry to be based on the record as it

existed at the time of the mistrial.”).

Some loss of deference due to district court procedures

indicative of a lack of sound discretion, however, does not

necessarily mean that there was no manifest necessity to declare

a mistrial as a matter of substantive fact. See Brown, 426 F.3d

at 37 (“The overarching question on appeal is whether the

district judge’s declaration of a mistrial was [manifest]ly

necessary under all the circumstances.” (internal quotation
34

marks omitted)). As we previewed in the jurisdictional section

of this opinion, see II, supra, our standard of review is impacted

by a district court’s exercise of sound discretion. A district

court still could have come to a correct conclusion based on the

record facts; we simply elevate our appellate scrutiny when a

district court violates Rule 26.3 or makes other significant

procedural errors in reaching that conclusion.

This is precisely what happened in Berroa. There, the

defendant appealed the district court’s allegedly improper

declaration of a mistrial under procedural circumstances similar

to the case at bar. The defendant was tried on various drug,

firearm, and conspiracy charges. 374 F.3d at 1055. After a day

or so of deliberations, the jury sent a note to the district court

stating: “We have agreed on some counts. However, we are

unable to come to a decision on others.” Id. At that point

(May 29th), the district court consulted counsel for all parties

and then gave a modified Allen charge (akin to our Instruction

9.05), and the jury continued its deliberations. Id. A day later

(May 30th), the jury informed the court: “We again have made

some decisions. However we can not [sic] come to an

agreement on others.” Id. The district court declared a mistrial

on each of the undecided counts, without providing the parties

an additional opportunity to comment or recommend

alternatives, as required by Rule 26.3. Id.

In analyzing whether this procedural history exhibited

manifest necessity for a mistrial, the Court of Appeals for the

Eleventh Circuit stated:
35

“[T]he events leading to the decision to declare a

mistrial were not rapid, and we cannot say that the

trial judge’s decision was precipitous. Without

dispute, after receiving the jury’s note on the

afternoon of May 30 declaring that it could not

agree on some counts, the district court convened

counsel and the jury, took the verdict and

immediately declared a mistrial as to the other

counts. Significantly, before declaring the

mistrial, the district court consulted neither the

defense attorneys nor the government.

The events of the afternoon of May 30, however,

do not stand in isolation. The jury’s note on that

date was the second such note from the jury. In

response to the first note, sent on May 29, the

court gave the jury a modified Allen charge.

Additionally, the second note was not sent shortly

after the jury began deliberations, but on the third

day of deliberations and the day after receiving

the modified Allen charge. Considered as a

whole, the circumstances reveal that the court’s

decision was not an abrupt, precipitous response

to a single note from the jury, but was a deliberate

decision made subsequent to three days of

deliberations, a prior note declaring an inability to

agree, and the jury’s prior receipt of a modified

Allen charge.

. . .
36

On balance, we find that the district court erred in

failing to consult with the parties prior to

declaring a mistrial after receiving the second

note from the jury stating its inability to reach a

decision. While this error weighs in favor of a

finding that the trial judge did not exercise sound

discretion, the remainder of the record is to the

contrary. Accordingly, we find that the trial judge

exercised sound discretion and defer to his finding

of manifest necessity to declare a mistrial.”

Id. at 1059-60. The facts relevant to manifest necessity in our

case – two jury notes, the district court’s consultation with

counsel after the first jury note but violation of Rule 26.3 after

the second jury note – parallel Berroa almost exactly.

Therefore, our own analysis of manifest necessity appropriately

conforms with Berroa’s.

Returning, then, to the Comment 9.06 factors that aid in

our appellate review of a district court’s finding of manifest

necessity, we do not believe that the first factor – a timely

objection by the defendant – carries much weight in this case.

On the one hand, it was Wecht who argued rather vigorously for

a mistrial on April 4, 2008, explaining that his written motion

was filed “in light of the jury’s unqualified individual

declarations that they are hopelessly deadlocked and that further

deliberations would not lead to unanimous verdicts.” On the

other hand, we have already explained why the District Court’s

course of action on April 8, 2008, rendered difficult the ability

of defense counsel to object at that time. Hence, the first
Even more accurately, we have three such notes. The 7

jury’s March 27, 2008 note, though phrased as a question about

hung juries, already hinted at the emergence of an impasse. For

the sake of clarity, however, the remainder of the discussion in

the principal text will refer to the April 3, 2008 note as the first

note and the April 7 (or 8), 2008 note as the second note.

37

“manifest necessity” factor of whether the defendant timely

objected does not weigh in favor of or against a mistrial.

What carries far more weight in this case is the second

factor: the jury’s collective opinion that it cannot agree. Here,

we have two notes expressing jury deadlock. The first note – 7

and Wecht’s motion of April 4, 2008 confirms this interpretation

– clearly expresses that the jury was hopelessly deadlocked and

that no additional deliberations would help the jury reach a

unanimous verdict on any of the counts. See Byrski, 854 F.2d

at 962 (earlier determination by district court that additional

deliberations would be helpful “does not, however, expunge the

record of all prior evidence of deadlock,” when prior notes sent

by jury indicated deadlock). Wecht argues on appeal that the

second note expressing jury deadlock detracts from, rather than

reaffirms, the first note. We disagree.

In this regard, Wecht argues first that the jury might have

been close to a verdict because the second note uses the phrase

“essentially deadlocked” rather than “hopelessly deadlocked.”

However, we are unwilling to hold the jury to Webster’s

Dictionary’s precise definition of adverbs and thereby read a

material distinction between “essentially” and “hopelessly,” or

more specifically, that “essentially deadlocked” might somehow
We further note that Wecht himself had objected 8

vigorously to a partial verdict instruction on April 3 and 4, 2008.

38

indicate an imminent break in the deadlock. See United States

v. Vaiseta, 333 F.3d 815, 819 (7th Cir. 2003) (defendant’s

“‘might have’ argument, without any evidence that his rights

and interests were compromised by the declaration of a mistrial,

cannot prevail against the specific facts and circumstances of

this case”). We thus doubt that the jury intended to water down

its expression of deadlock by using a different adverb in the

second instance. Instead, any clear movement toward a

unanimous verdict between the two notes is perceptible only if

one reads the second note in a highly counterintuitive manner.

Second, Wecht argues that the second note states that the

jury was unable to reach a verdict “on all 41 counts,” which

implies that it could reach or was close to reaching a verdict on

some subset of those counts. We believe that the likelihood of

this misunderstanding is low. The District Court’s March 27,

2008 response to the jury, which stated that the inability to reach

a unanimous verdict on only some of the counts does not

constitute a hung jury, should have cleared up any confusion,

especially in light of the Court’s abundantly clear partial verdict

instruction on March 17, 2008. Even assuming arguendo that 8

any confusion lingered, we simply do not agree that it offsets the

jury’s repeated expression of genuine deadlock.

We move on, then, to the third through fifth factors

dealing with the length and complexity of trial and length of

deliberations, noting preliminarily that “[t]here is no uniform

minimum period during which a jury must deliberate before the
We contrast our case, for example, with the Second 9

Circuit’s decision in Razmilovic, in which the court barred

retrial. There, the district court decided “that a single jury note

indicating deadlock created a ‘manifest necessity’ to declare a

mistrial.” 507 F.3d at 133. Also, the jury had deliberated for

only three days after a six-week trial involving three defendants,

twenty-one separate counts, and forty witnesses. Id. at 139.

There was also no individual polling of jurors. Id. By stark

contrast, the District Court here received two jury notes, polled

the jurors individually after the first, and gave them Instruction

9.05 after nine days of deliberation over one defendant after a

six-week trial. There was then an additional half-day of

deliberation on April 7, 2008. This completely different record

does not contain facts akin to the ones that prompted the Second

Circuit to reverse in Razmilovic.

39

court may declare a hung jury.” United States ex rel. Webb v.

Court of Common Pleas, 516 F.2d 1034, 1044 (3d Cir. 1975).

Here, the trial lasted for twenty-three days, and the jury

deliberated for a total of 54.5 hours over a period of ten days.

On the one hand, the issues were relatively complex in that there

were forty-one counts. On the other hand, there was only one

defendant. See Byrski, 854 F.2d at 963 (“Although the length of

the jury’s deliberation [approximately thirty hours over thirteen

days] was not excessive considering the complexity and length

of the trial [seven defendants and multiple charges against each

defendant tried for thirty-two days over an eight-week period],

neither was it so insubstantial as to cast doubt on the correctness

of the judge’s mistrial declaration.”). We believe that, on this 9

record, the amount of deliberation time corresponded

sufficiently to the length and complexity of the trial, such that
As for the seventh factor relating to the danger of a 10

coerced verdict, we need not dwell on it. There was obviously

40

these factors weigh in favor of the District Court’s finding of

manifest necessity.

The sixth factor – any proper communications between

the judge and jury – also weighs in favor of the District Court’s

finding because the Court individually polled the jurors, asking

whether they were “hopelessly deadlocked,” and each juror

confirmed what the collective note stated. Although the timing

of this polling was not ideal, see III.B, supra, the District Court

nonetheless performed it at a sufficiently informative juncture

to reveal that each juror believed that further deliberations

would not help him in reaching a unanimous verdict. The

issuance of Instruction 9.05 also constituted a proper

communication from the judge back to the jury (as well as an

alternative to mistrial) to give the jury one more opportunity to

reach a unanimous verdict. See United States v. Joyner, 201

F.3d 61, 83 (2d Cir. 2000) (proper mistrial declaration following

protracted deliberations, Allen charge, and polling of jurors,

even though defendants claimed that they “were not given the

opportunity to be heard on the issue”); United States v. Simpson,

94 F.3d 1373, 1377 (10th Cir. 1996) (proper mistrial declaration

following jury’s repeated expression of deadlock and jury

foreman’s confirmation, even though “the court did not provide

the parties with a hearing on the necessity of a mistrial”). The

communications between the District Court and the jurors both

individually and collectively thus buttress the conclusion that

the eventual second note expressing jury deadlock represented

a genuine deadlock that could not be broken.10
a possibility that the jury might be coerced into a verdict had it

been sent back for further deliberations. Yet, the District Court

made no finding to this effect on the record, and we do not

presume to know how exhausted the jury was at the point of

mistrial declaration. Again, had the District Court made explicit

findings for each factor under Comment 9.06, we would be in a

much better position to assess this factor. Nonetheless, as in

Berroa, the balance of the factors, even under a less deferential

standard of review, weigh strongly in favor of the District

Court’s finding of manifest necessity.

41

In sum, the record as a whole in this case supports the

District Court’s conclusion that there was “manifest necessity”

to declare a mistrial without Wecht’s consent. As a result, the

District Court may retry Wecht without violating the Double

Jeopardy Clause, and so it did not err in denying Wecht’s

motion to dismiss the indictment.

IV.

Our holding today that there is no constitutional bar to

retrying Dr. Wecht does not stand for the proposition that he

must be retried. That is a decision that rests with the

Government. Indeed, Wecht’s prosecution is one that already

has spanned more than thirty months. It has resulted in

numerous appeals and emergency motions to this Court and,

with the filing of this opinion, three lengthy precedential

opinions.

If the Government chooses to proceed with a retrial, our

view is that both sides and the interest of justice would benefit
42

from a reduced level of rancor in the courtroom, fresh eyes on

the case, and fewer forays to this Court by the parties, including

intervening parties. This has been a highly charged, lengthy,

and complex case involving serious criminal charges brought

against a prominent public figure. The trial judge has been the

referee in a heavyweight fight, and, as we have ruled, has

generally made the correct calls, with some exceptions. Wecht

II, for example, noted that the District Court initially failed to

follow our mandate from an earlier order. See --- F.3d at ----,

2008 WL 2940375, at *1 n.1. And in today’s decision, even

though there was manifest necessity to declare a mistrial in

satisfaction of the Fifth Amendment, the District Court reached

that conclusion through a highly flawed set of procedures. See

III.B, supra.

Therefore, in the exercise of our supervisory powers

under 28 U.S.C. § 2106, see, e.g., Gov’t of the Virgin Islands v.

Walker, 261 F.3d 370, 376 (3d Cir. 2001), see also Liteky v.

United States, 510 U.S. 540, 554 (1994), we will direct that

Judge Schwab be relieved of further duties on this case and that

the Chief Judge of the District Court assign a new judge to

handle any future matters in the case including any retrial.

Although we tread cautiously because “[t]he decision to remove

a judge from an ongoing trial should be considered seriously and

made only rarely,” Huber v. Taylor, 532 F.3d 237, 251 (3d Cir.

2008), this case has progressed so unusually as to become sui

generis. See, e.g., Living Designs, Inc. v. E.I. Dupont de

Nemours and Co., 431 F.3d 353, 372-73 (9th Cir. 2005)

(concluding under 28 U.S.C. § 2106 that, even absent

allegations of bias, because of the highly unusual procedures the

trial judge employed, “the appearance of justice requires
Certainly Wecht should be pleased with our 11

reassignment of the case. Not only did he move for Judge

Schwab’s recusal at issue in Wecht I, he did so again under

§ 455 in the form of a petition for writ of mandamus to our

Court, which we denied on January 2, 2008. Wecht then moved

for recusal again under § 455 more recently on April 21, 2008.

Judge Schwab denied the motion on May 8, 2008.

43

reassignment on remand”); Sobel v. Yeshiva Univ., 839 F.2d 18,

37 (2d Cir. 1988) (concluding “that it is necessary to remand the

case to a different district judge” because court of appeals was

“disturbed by the manner in which the district court treated this

case on our initial remand”).

We thus end this chapter in the Wecht appellate saga by

coming full circle. In Wecht I, the issue of whether Judge

Schwab should be recused for bias figured prominently in the

appeal. In that opinion our dissenting colleague concluded

under 28 U.S.C. § 455 “that another judge should preside over

the trial of Wecht.” 484 F.3d at 236 (Bright, J., dissenting).11

As we have just described, the problem today is not so much the

appearance of bias as it is the appearance of litigation at a

combative tenor that likely will not abate were Judge Schwab to

stay on the case. We therefore direct that a less invested

adjudicator take over from here.

V.

For the foregoing reasons, we will affirm the District

Court’s order denying Wecht’s motion to dismiss the

indictment. We nonetheless will exercise our supervisory power
44

and remand this case to the Chief Judge of the District Court to

reassign the case to a different judge.