NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,

Plaintiff

- Appellee ,

v. RUBEN RODRIGUEZ and JAIME MAYORGA , Defendants

- Appellants

. No. 17

- 1 0452 17

- 10456
D.C. No s
. 2:11

- cr - 00296

- JAM

- 3 2:11

- cr - 00296

- JAM

- 4
MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California John A. Mendez , District Judge, Presiding Submitted August 16, 2018 ** San Francisco, California Before: O’ SCANNLAIN and BEA, Circuit Judges, and McLAUGHLIN, *** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. S ee Fed. R. App. P. 34(a)(2).

*** The Honorable Mary A. McLaughlin, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 

# FILED

AUG 20 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 17

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Defendants

- Appellants Jaime Mayorga and Ruben Rodriguez (together, “Defendants”) bring this interlocutory appeal from the district court’s denial of their motion to dismiss the indictm ent on double jeopardy grounds. We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. United States v.
Bates , 917 F.2d 388, 392 (9th Cir. 1990). We review the denial of a motion to dismiss the indictment de novo , id. , but the distr ict court’s underlying finding of manifest necessity is reviewed only for abuse of discretion, United States v. Bonas , 344 F.3d 945, 947

– 48 (9th Cir. 2003). We affirm.
O n abuse of discretion review, the proper inquiry is “whether the trial
court’s application of the correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences that may be drawn from the facts in the record

. ’” United States v. Hinkson , 585 F.3d 1247, 1262 (9th Cir. 2009) . The district court’s finding of manifest necessity for a mistrial was neither illogical, implausible, nor without support in the record. In evaluating a finding of manifest necessity for abuse of discretion, this
court has considered whether the factual record shows that “the district court ‘(1) heard the opinions of the parties about the propriety of the mistrial, (2) considered the alternatives to a mistrial and chose[] the alternative least harmful to a defendant’s rights, [and/or] (3) acted deliberately instead of abruptly .’” United States v. Chapman , 524 F.3d 1073, 1082 (9th Cir. 2008) (quoting Bates , 917 F. 2 d3 17

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at 396). The narrow goal of this court’s review is to “weed out ‘irrational or irresponsible behavior by the trial judge.’” Id. (quoting Bates , 917 F.2d at 395). Here, the record shows

— and Defendants concede

— that the district court (1) heard the parties on the issu e of mistrial, (2) solicited, considered, and investigated possible alternatives to mistrial , including substitution of another district judge, 1 and (3) acted “deliberately instead of abruptly” in ordering the mistrial

. According to Defendants, the district court nevertheless abused its discretion in declaring a “manifest necessity” without finding, on the record, t hat it was not possible to (1) ask the jury whether they would be able to hear the case to conclusion if a further continuance o f one or two weeks was granted, (2) ask other Eastern District judges besides those based in Sacramento, such as those based in
Fresno , California , to step in or seek to have a visiting judge from another district preside over the remainder of the case, or (3) make further inquiries about Judge

1 T he district court’s attempts to find an alternative to mistrial through internal court communications are sufficiently supported in the factual record. See Bonas , 344 F.3d at 949 (“There may well be peripheral factual matters a district judge may rely on without making a formal record

— for example, matters pertaining to the internal operati on of the court.”).4 17

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Shubb’s availability to hear the case again. 2 The district court did not abuse its discretion in determining that these altern atives would not be practical or adequate. With regard to Defendants’ first proposal , the timing of Judge Mendez’s return was inherently uncertain, as evidenced by Judge England’s statements at the mistrial hearing. The district court had a reasonable basis to worry that an indefinite continuance would impair jurors’ ability to remember evidence already presented. Thus, the district court did not abuse its discretion in determining that an indefinite continuance of trial was not a viable alternative to mistrial. With regard to Defendants’ second proposal , i t is undisputed that Judge England made inquiries of the other Sacramento

- based district judges, and Defendants concede that those inquiries “may be put informally on the record.” Defendants cite no precedent to support their argument that this effort was insufficient because the district court did not make a formal finding on the record that no federal district judge could take over the case. Far from presenting an “obvious and ad equate alternative[] to aborting the trial,” such an exhaustive requirement would place an unreasonably onerous burden on the judge tasked with

2 Defendants also argue that because this appeal concerns the second mistrial in Defendants’ case, the panel should be particularly solicitous about protecting the rights secured by the Double Jeopardy Clause. Whatever the merits of th at point, however, it does not alter the standard for showing that a “manifest necessity” actually existed on this particular occasion. T he determination of whether a “manifest necessity” to declare a mistrial has arisen at any given time is left to the d iscretion of the district court. Bonas , 344 F.3d at 948.5 17

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dealing with the sudden illness of the presiding judge. Defendants argue that Judge England should have at leas t contacted Eastern

- D istrict judges based in Fresno, but even Fresno is 170 miles from the courthouse in Sacramento. Indeed, Defendants themselves did not suggest substitution by a non

- Sacramento based judge when given an opportunity to propose alternativ es at the mistrial hearing. In the circumstances, the district court did not abuse its discretion in finding a manifest necessity for mistrial after looking for a replacement judge among the other district judges in the Sacramento area. Finally, upon D efendants’ request, Judge England specifically asked Judge Shubb, who had presided over Defendants’ first trial, if he was available to step in again. Judge England took a brief recess to contact Judge Shubb, and then reported t hat Judge Shubb was unavail able, which fact was placed in the record on the transcript of the hearing. With no authority to compel Judge Shubb to hear the case, he had no choice but to accept Judge Shubb’s abstention. Therefore, the district court did not abuse its discretion in d etermining that substitution by Judge Shubb was not a viable alternative to mistrial. In sum, the record does not reveal any “ irrational or irresponsib le behavior by the trial judge. ” Chapman , 524 F.3d at 1082 (quoting Bates , 917 F.2d at 395).
T he dis trict court did not abuse its discretion in finding a manifest necessity to6 17

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declare mistrial. Therefore, it properly denied Defendants’ motion to dismiss the indictment.
AFFIRMED.