NOT FOR PUBLICATION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. 17-10452

17-10456

D.C. Nos.

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. See 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, CLERK

U.S. COURT OF APPEALS
2 17-10452, 17-10456

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 indictment 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 district 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.

On 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.2d 
3 17-10452, 17-10456

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 issue 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, that it was not 

possible to (1) ask the jury whether they would be able to hear the case to 

conclusion if a further continuance of 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 The 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 

operation of the court.”).
4 17-10452, 17-10456

Shubb’s availability to hear the case again.2 The district court did not abuse its 

discretion in determining that these alternatives 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, it 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 adequate 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 that point, 

however, it does not alter the standard for showing that a “manifest necessity” 

actually existed on this particular occasion. The determination of whether a 

“manifest necessity” to declare a mistrial has arisen at any given time is left to the 

discretion of the district court. Bonas, 344 F.3d at 948.
5 17-10452, 17-10456

dealing with the sudden illness of the presiding judge. Defendants argue that 

Judge England should have at least contacted Eastern-District 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 alternatives 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 Defendants’ 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 that Judge Shubb was unavailable, 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 determining that substitution by Judge 

Shubb was not a viable alternative to mistrial. 

In sum, the record does not reveal any “irrational or irresponsible behavior 

by the trial judge.” Chapman, 524 F.3d at 1082 (quoting Bates, 917 F.2d at 395). 

The district court did not abuse its discretion in finding a manifest necessity to 
6 17-10452, 17-10456

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

indictment.

AFFIRMED.