FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30067

Plaintiff-Appellee, D.C. No.

v.  3:06-CR-00069-

RRB JOHN D. JEFFERSON,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Submitted January 23, 2009*

Seattle, Washington

Filed May 26, 2009

Before: Robert R. Beezer, Richard C. Tallman and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Beezer

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

6121
COUNSEL

Louis James Menendez, Menendez Law Office, Juneau,

Alaska, and Marcia E. Holland, contract attorney, Juneau,

Alaska, for the defendant-appellant. 

Daniel R. Cooper, Jr., Assistant United States Attorney,

Anchorage, Alaska, for the plaintiff-appellee. 

6124 UNITED STATES v. JEFFERSON
OPINION

BEEZER, Circuit Judge: 

John Jefferson appeals from a final judgment entered in the

district court upon his conditional guilty plea to the charge of

attempted possession of methamphetamine with intent to distribute. Jefferson challenges the district court’s denial of his

motion to suppress by arguing that the detainment of his

express mail package, which had a contractually guaranteed

time of delivery, violated the Fourth Amendment. Jefferson

also challenges, as a violation of the Double Jeopardy Clause

of the Fifth Amendment, his retrial after the first jury indicated that it was “unable to come to a decision” on the intent

to distribute offense but convicted him of the lesser-included

offense of attempted possession. 

The district court had jurisdiction under 21 U.S.C.

§§ 841(b)(1)(A) and 846. We have jurisdiction under 28

U.S.C. § 1291. We affirm. 

I

On the morning of April 6, 2006, an express mail package

addressed to John Jefferson arrived at the United States Post

Office in Juneau, Alaska. The package was sent from Oregon

on April 5 and delivery was guaranteed by 3:00 p.m. on April

7. The postal clerk processing the package telephoned a postal

inspector in Anchorage. The inspector had previously

instructed clerks to notify him if any packages arrived that

were to be delivered to Jefferson’s address. The inspector told

the clerk to detain the package overnight. 

The inspector arrived in Juneau the morning of April 7

along with a law enforcement team and a narcotics-detection

canine. The inspector visually inspected the outside of the

package and submitted it to a canine sniff. The canine alerted

to narcotics. Law enforcement applied for a search warrant,

UNITED STATES v. JEFFERSON 6125
which the magistrate judge granted at 11:55 a.m. Law

enforcement opened the package and discovered 253 grams of

methamphetamine. At approximately 1:30 p.m., law enforcement obtained a beeper warrant and placed a beeper inside the

package. Around 5:00 p.m., law enforcement made a controlled delivery of the package to Jefferson’s address. The

beeper soon went off and law enforcement arrested Jefferson.

The government prosecuted Jefferson for attempted possession of methamphetamine with intent to distribute and the

lesser-included offense of attempted possession. Jefferson

moved the district court to suppress the methamphetamine.

The district court denied the suppression motion. 

At trial, the district court provided the jury with a verdict

form for the intent to distribute offense and a verdict form for

the attempted possession offense. The jury instructions provided that “if after all reasonable efforts you are unable to

reach a verdict [on the intent to distribute offense], you should

record the decision on the verdict form and go on to consider

whether defendant is guilty or not of the lesser included

offense of Attempted Possession of a Methamphetamine.”

After deliberating, the jury informed the district court that it

had reached a verdict. 

The verdict form for the intent to distribute offense originally read, in pertinent part: “We, the Jury . . . do find the

Defendant, JOHN D. JEFFERSON, ___________ (Guilty or

Not Guilty) of the crime of Attempted Possession of a Controlled Substance with Intent to Distribute . . . .” The jury

crossed out the word “do” and wrote in “were unable to.” The

jury also wrote the following on the verdict form: “The jury

was unable to come to a decision on this verdict.” On the verdict form for the attempted possession offense, the jury found

Jefferson “Guilty.” 

Jefferson requested the district court to order continued

deliberations, which the court did after reading the jury a

6126 UNITED STATES v. JEFFERSON
modified Allen charge.1

 After continued deliberations, the jury

sent the court a note, which the court read into the record:

“We were under the impression that if we were unable to

come to a decision on verdict 1, we would record the decision

on the verdict form and go (indiscernible) the defendant’s

guilty or not unless—if we cannot come to a unanimous verdict on 1, are we able to vote yes?” The district court, upon

the agreement of Jefferson and the government, answered the

jury’s question affirmatively. 

Upon further deliberations, the jury indicated that it had

reached a verdict and again gave the court the interlineated

verdict forms. The district court decided “to go ahead and

publish the verdict. Nothing has changed.” The court polled

the jurors as to whether further deliberations might produce a

verdict on the intent to distribute offense, all of whom indicated that further deliberations would be unavailing. Neither

the government nor Jefferson objected to the district court

declaring a mistrial because of the hung jury. 

After the court dismissed the jury, the government

announced that it would retry Jefferson on the intent to distribute offense. Jefferson moved to dismiss his retrial based

on double jeopardy, which the district court summarily

denied. Jefferson entered a conditional guilty plea on the

intent to distribute offense, preserving for appeal the denial of

his suppression motion and double jeopardy motion. 

II

“We review de novo the denial of a motion to suppress.”

United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.

2004) (en banc). “Whether the exclusionary rule applies to a

given case is reviewed de novo, while the underlying factual

findings are reviewed for clear error.” Id.

1An “Allen charge” is a supplemental instruction typically given to the

jury after it indicates that it is having trouble reaching unanimity. Allen v.

United States, 164 U.S. 492, 501 (1896). 

UNITED STATES v. JEFFERSON 6127
“We review de novo the denial of a motion to dismiss on

double jeopardy grounds.” United States v. Bhatia, 545 F.3d

757, 759 n.1 (9th Cir. 2008). 

III

[1] Jefferson argues that the district court erred in denying

his suppression motion because the postal inspector’s detainment of his package on April 6 violated the Fourth Amendment. The first clause of the Fourth Amendment safeguards

“[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.”2

 U.S. Const. amend. IV. “This text protects two types

of expectations, one involving ‘searches,’ the other ‘seizures.’

A ‘search’ occurs when an expectation of privacy that society

is prepared to consider reasonable is infringed. A ‘seizure’ of

property occurs when there is some meaningful interference

with an individual’s possessory interests in that property.”

United States v. Jacobsen, 466 U.S. 109, 113 (1984) (footnotes omitted). “It has long been established that an addressee

has both a possessory and a privacy interest in a mailed package.” United States v. Hernandez, 313 F.3d 1206, 1209 (9th

Cir. 2002). 

[2] Our case law expressly forecloses any assertion by Jefferson that his privacy interests in the package were implicated. The postal inspector’s visual inspection of the package

did not implicate the Fourth Amendment because “[w]hat a

person knowingly exposes to the public . . . is not a subject

of Fourth Amendment protection.” United States v. Hoang,

486 F.3d 1156, 1159 (9th Cir. 2007) (quoting Katz v. United

States, 389 U.S. 347, 351 (1967)). Likewise, the postal

inspector’s “use of a well-trained narcotics-detection dog . . .

[did] not implicate legitimate privacy interests.” Illinois v.

2

“Letters and other sealed packages are in the general class of effects

in which the public at large has a legitimate expectation of privacy[.]”

United States v. Jacobsen, 466 U.S. 109, 114 (1984). 

6128 UNITED STATES v. JEFFERSON
Caballes, 543 U.S. 405, 409 (2005); see also Hoang, 486 F.3d

at 1160.

[3] Because Jefferson’s privacy interests were not implicated, “the only constitutional interest potentially implicated

is [his] possessory interest in the package.” See Hoang, 486

F.3d at 1160. “We have characterized the possessory interest

in a mailed package as being solely in the package’s timely

delivery.” Id. (citing United States v. England, 971 F.2d 419,

420-21 (9th Cir. 1992)). “In other words, an addressee’s possessory interest is in the timely delivery of a package, not in

having his package routed on a particular conveyor belt,

sorted in a particular area, or stored in any particular sorting

bin for a particular amount of time.” Id. (citation and internal

quotation marks omitted). 

[4] Jefferson argues that his possessory interest in “timely”

delivery arose on April 6, “[a]t the time the package was

removed from the mail stream and not delivered in the normal

fashion along with the other Express Mail packages.” In

United States v. Hoang, we explicitly left unanswered

whether a contractually guaranteed delivery time affects the

Fourth Amendment possessory interest of a package’s sender

or recipient. See id. at 1162 n.5 (“We observe that the terms

of service in the contract between the sender and FedEx may

also alter the expectations of the sender or the recipient and

may very well affect a subsequent court’s analysis of the propriety of any FedEx-approved inspection and diversion of packages.”).3

 The United States Court of Appeals for the First

Circuit answered this question almost twenty years ago in

United States v. LaFrance, 879 F.2d 1 (1st Cir. 1989). 

In LaFrance, per the instructions of law enforcement, a

Federal Express employee alerted law enforcement that a

package had arrived addressed to LaFrance. Id. at 2-3. The

3

In this case, we observe no Fourth Amendment distinction between

public and private package carriers. 

UNITED STATES v. JEFFERSON 6129
package had arrived in the morning and delivery was guaranteed by 12:00 p.m. that day. Id. at 3. Law enforcement

directed the employee to deliver the package to the police

department instead of LaFrance. Id. The package arrived at

the police department around 12:45 p.m., hence 45 minutes

after the guaranteed delivery time. Id. At about 1:15 p.m., the

package was subjected to a narcotics-detection canine sniff

and the canine alerted to contraband. Id. LaFrance presented

essentially the same arguments for suppression as those Jefferson now advances.

The First Circuit observed that “a possessory interest

derives from rights in property delineated by the parameters

of law, in this case, contract law.” Id. at 7; see also Rakas v.

Illinois, 439 U.S. 128, 143 n.12 (“Legitimation of expectations of privacy by law must have a source outside of the

Fourth Amendment, either by reference to concepts of real or

personal property law or to understandings that are recognized

and permitted by society.”). The First Circuit noted the hornbook contract law principle “that where a delivery time is

agreed upon, a court should not intrude to imply a (different)

reasonable time for delivery.” LaFrance, 879 F.2d at 7. 

The First Circuit held that “the only possessory interest at

stake before Thursday noon was the contract-based expectancy that the package would be delivered to the designated

address by morning’s end. FedEx obligated itself to no more

than that.” Id. In addressing the time period “[f]rom noon

until 2:15 p.m.,” during which time LaFrance had a possessory interest in the package but law enforcement had yet to

establish probable cause, the First Circuit concluded that the

detention was reasonable based on the circumstances. Id. at

10; see also Hoang, 486 F.3d at 1159 (“Once a search or seizure that implicates the Fourth Amendment has occurred, the

reasonableness of that act must be determined by weighing

the public interest against the protected private interest.”). 

[5] The reasoning of LaFrance is convincing. We hold that

an addressee has no Fourth Amendment possessory interest in

6130 UNITED STATES v. JEFFERSON
a package that has a guaranteed delivery time until such delivery time has passed. Before the guaranteed delivery time, law

enforcement may detain such a package for inspection purposes without any Fourth Amendment curtailment. See United

States v. Gill, 280 F.3d 923, 932-33 (9th Cir. 2002) (Gould,

J., concurring) (“Investigators may inspect mail as they wish

without any Fourth Amendment curtailment, so long as the

inspection does not amount to a ‘search,’ and so long as it is

conducted quickly enough so that it does not become a seizure

by significantly delaying the date of delivery.”). Once the

guaranteed delivery time passes, however, law enforcement

must have a “reasonable and articulable suspicion” that the

package contains contraband or evidence of illegal activity for

further detainment. See Hoang, 486 F.3d at 1160. 

[6] In this case, the post office guaranteed that Jefferson

would receive his package by 3:00 p.m. on April 7. Any

expectation that Jefferson or the post office may have had that

the package could arrive earlier is irrelevant. See LaFrance,

879 F.2d at 7. The postal inspector did not need any suspicion

to detain Jefferson’s package overnight on April 6 because

Jefferson did not yet have a possessory interest in the package. By the time “the constitutional chemistry was altered” at

3:00 p.m. on April 7, see id., law enforcement had already

established probable cause to seize Jefferson’s package. See

Hoang, 486 F.3d at 1160 n.1. Thus, law enforcement acted

well within the bounds of the Fourth Amendment in detaining, seizing and then searching Jefferson’s package. 

[7] In sum, we hold that a package addressee does not have

a Fourth Amendment possessory interest in a package that has

a guaranteed delivery time until the guaranteed delivery time

has passed. Jefferson had no Fourth Amendment possessory

interest in the “timely” delivery of his package until 3:00 p.m.

on April 7. We need not weigh the public interest in the package’s detainment against the protected private interest because

probable cause was established before Jefferson gained a possessory interest in the package. See id. at 1159. 

UNITED STATES v. JEFFERSON 6131
We affirm the district court’s denial of Jefferson’s suppression motion.

IV

Jefferson argues that permitting his retrial violated the Double Jeopardy Clause of the Fifth Amendment. The Double

Jeopardy Clause guarantees that no person shall “be subject

for the same offense to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. The Double Jeopardy Clause is

not an absolute bar to successive trials. Justices of Boston

Mun. Court v. Lydon, 466 U.S. 294, 308 (1984). 

[8] Jefferson first argues that the first jury impliedly acquitted him. “The Fifth Amendment’s Double Jeopardy Clause

prohibits retrial after an acquittal, whether express or implied

by jury silence.” Brazzel v. Washington, 491 F.3d 976, 981

(9th Cir. 2007) (citing Green v. United States, 355 U.S. 184,

191 (1957)). “An implied acquittal occurs when a jury returns

a guilty verdict as to a lesser included or lesser alternate

charge, but remains silent as to other charges, without

announcing any signs of hopeless deadlock.” Id. 

[9] The first jury did not impliedly acquit Jefferson because

it was not “silent” on the issue of Jefferson’s intent to distribute. Rather, the first jury indicated that it was hopelessly

deadlocked on that offense. On the interlineated verdict form

for the intent to distribute offense, the jury indicated that it

was “unable to” find Jefferson guilty or not guilty. To make

their position abundantly clear, the jury also wrote that it was

“unable to come to a decision on this verdict.” Each juror confirmed the hopeless deadlock when polled by the district

court. The jury was anything but “silent” in this case; in fact,

it was almost as “loud” as a jury can be. 

[10] Jefferson next argues that the Double Jeopardy Clause

prohibits his retrial because “manifest necessity” did not exist

for the district court to declare a mistrial. “In contrast to an

6132 UNITED STATES v. JEFFERSON
implied acquittal, retrial is permitted where there is a mistrial

declared due to the ‘manifest necessity’ presented by a hung

jury.” Id. at 982 (citing United States v. Perez, 22 U.S. 579,

580 (1824)). “A hung jury occurs when there is an irreconcilable disagreement among the jury members.” Id. The record

should reflect that the jury is “genuinely deadlocked.” Richardson v. United States, 468 U.S. 317, 324 (1984). “The trial

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

jury deadlocked is therefore accorded great deference by a

reviewing court.” Arizona v. Washington, 434 U.S. 497, 510

(1978). 

[11] In this case, as shown above, the jury repeatedly indicated that it was genuinely deadlocked. When the jury first

returned the interlineated verdict forms, the jury told the district court that it had reached a verdict. Instead of accepting

the jury’s verdict on the attempted possession offense and

deadlock on the intent to distribute offense, the district court,

upon the request of Jefferson, ordered continued deliberations. The district court also read the jury a modified Allen

charge. In the midst of the jury’s continued deliberations, the

jury sent a note which sought to confirm the jury’s “impression that if we were unable to come to a decision on verdict

1, we would record the decision on the verdict form.” The district court confirmed the jury’s understanding that it could

find Jefferson guilty on the attempted possession offense

without finding him guilty, or not guilty, on the intent to distribute offense. As such, the jury soon returned the same interlineated verdict forms to the district court. 

[12] There can be no serious dispute as to whether the jury

was genuinely deadlocked because the jury notified the district court as such on several occasions. A district court need

not, and indeed should not, order continued deliberations once

it becomes apparent that hopeless deadlock exists. The district

court appropriately exercised its discretion in declaring a mistrial based on the manifest necessity that confronted it. 

UNITED STATES v. JEFFERSON 6133
We affirm the district court’s denial of Jefferson’s double

jeopardy motion. 

V

The district court correctly denied Jefferson’s motion to

suppress and motion to dismiss based on double jeopardy. 

AFFIRMED.

6134 UNITED STATES v. JEFFERSON