UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

TERRY J. MCINTYRE, JR., a/k/a T-Mac, 

a/k/a Florida, 

 Defendant - Appellant. 

Nos. 08-3304 & 09-3173 

 (D.C. No. 2:06-CR-20047-CM-JPO-3) 

 (D. Kan.) 

ORDER AND JUDGMENT*

Before O'BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and GORSUCH, 

Circuit Judge.

Following a second trial, Terry J. McIntyre, Jr. was convicted of various offenses 

arising out of his involvement in a drug distribution conspiracy in Lawrence, Kansas. 

Prompted by what it concluded to be manifest necessity, the district court declared a 

mistrial during his first trial after his counsel reported that a former client might have 

purchased drugs from McIntyre and his co-defendants and might be called to testify. 

 *

 This order and judgment is an unpublished decision, not binding precedent. 10th 

Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. 

It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. 

Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). 

Citation to an order and judgment must be accompanied by an appropriate parenthetical 

notation B (unpublished). Id. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 29, 2010

Elisabeth A. Shumaker 

Clerk of Court

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McIntyre later moved to dismiss the indictment which formed the basis of the second trial 

on double jeopardy grounds. The court denied the motion, again concluding the mistrial 

was warranted by manifest necessity. McIntyre appeals from that decision and also from 

the court’s denial of his pre-trial motion to suppress. We affirm. 

I. BACKGROUND 

In May 2005, the Lawrence Police Department obtained information from a 

confidential informant (CI) regarding crack cocaine dealers in Lawrence, Kansas. The CI 

assisted the police in ten controlled purchases. Upon further investigation, the police 

identified McIntyre and his co-defendants as belonging to a group of drug dealers known 

as the “Blue Crew.” (R. Vol. II at 47.) The police also obtained evidence against 

McIntyre during a traffic stop on September 28, 2005, which was unrelated to the larger 

investigation. On March 31, 2006, McIntyre was charged, along with four other 

defendants, in a seventeen-count indictment. Specifically, McIntyre was charged with 

seven counts relating to his involvement in distributing crack cocaine from 2004 to 2006. 

Zachary L.K. Williams and Johnnie K. Williams, III, were charged in the same 

indictment and were tried jointly with McIntyre. 

A. Motion to Suppress

Prior to the first trial, McIntyre filed a motion to suppress evidence from the 

September 28, 2005 vehicle stop arguing Officer Branson Star lacked reasonable 

suspicion for the stop. Star testified to the following at the suppression hearing. 

At approximately 2:30 a.m. on September 28, 2005, he was on routine patrol when 

he observed a vehicle “moving very slowly through the parking lot [of a hotel] with its 

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[head]lights off.” (R. Supp. Vol. I at 49.) He thought the vehicle “was suspicious” and 

decided he “needed to investigate.” (Id. at 47, 49.) He turned his patrol car around and 

observed the vehicle, now with its lights on, pull out of the hotel parking lot. As he 

pulled up to the vehicle, he observed two people inside, neither of whom turned towards 

him; they continued on their way.

Star followed. He ran a registration check and learned the vehicle was not listed 

as stolen and was registered to Deborah Garrett at a local address. He knew two of 

Garrett’s relatives—“a son [and a] nephew”—had previously been involved in “[g]uns, 

drugs, other crimes, alcohol-related crimes.” (Id. at 51.) He was suspicious because the 

vehicle was associated with these individuals and was located at a hotel, even though it 

was registered locally. According to Star, automobile burglaries and narcotic-related 

activity frequently take place at hotels and he had been involved in a number of 

investigations involving hotels. More specifically, he had been involved in a drug 

investigation at this particular hotel involving one of the co-defendants in this case, 

Michael Beal, just a few month earlier. Star “made the decision to stop the vehicle” 

because he wanted to “identify the occupants” and “see if their story was plausible for 

driving through the parking . . . lot with no lights on . . . .” (Id. at 52-53.) 

After gathering the above information, Star stopped the vehicle approximately six 

blocks from the hotel. He approached the driver’s side door and asked the driver and 

passenger for their identification. The passenger stated he had no identification but said 

his name was Terry McIntyre. The officer explained why he stopped the vehicle. He 

then walked to the passenger side of the car to ask McIntyre for his personal information. 

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During that interaction, Star observed “a white substance wrapped in plastic between 

[McIntyre’s] legs.” (Id. at 57.) He believed the substance to be crack cocaine so he 

waited until another officer arrived and then asked McIntyre to step out of the vehicle and 

placed him under arrest. McIntyre volunteered that there was a gun in his pocket. The 

officers recovered the weapon, a package of a white substance and $620 in cash from 

McIntyre’s person. From the vehicle, they recovered a digital scale and two bags 

containing a white powder. All of the bags were found to contain cocaine.

After hearing this evidence and considering the arguments of counsel, the court 

denied McIntyre’s motion to suppress concluding “Officer Star acted reasonably in 

stopping [McIntyre].” (Id. at 129.)

B. First Trial

McIntyre’s first trial commenced on April 1, 2008. He was tried along with two 

co-defendants, Zachary Williams and Johnnie Williams. On the sixth day of trial, April 

10, 2008, McIntyre’s counsel, Jacquelyn Rokusek, advised the court she had withdrawn 

from representing Stephen Barbee in another case.1

 Rokusek had contacted the 

government approximately six weeks prior to trial to ask whether there was a conflict of 

interest arising out of her representation of both McIntyre and Barbee. The government 

stated it was not aware of any conflict and Barbee apparently advised Rokusek he was 

not familiar with any of the individuals involved in this case. Rokusek later learned both 

cases involved the same CI and Barbee’s phone number appeared on phone records in 

 1

 At this point, the jury had heard the testimony of five prosecution witnesses and 

118 exhibits had been admitted into evidence.

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this case, indicating he may have purchased drugs from the Blue Crew.

Rokusek informed the court she had contacted the Kansas Disciplinary 

Administrator’s Office who advised her she had a conflict as to her representation of 

Barbee but not as to McIntyre. According to Rokusek, she told McIntyre about the 

potential conflict; nevertheless, he wanted her to continue to represent him. The 

government was not satisfied McIntyre could waive the conflict and expressed concern 

that Rokusek might be a witness based on the apparently conflicting statements given to 

her by Barbee. After further questioning by the court, Rokusek acknowledged McIntyre 

might not be able to waive the conflict of interest. She stated: “I can’t tell you 

definitively that . . . it would be a knowing and intelligently made waiver, simply because 

I’m limited in what I can discuss with [McIntyre] regarding this issue as it is protected by 

the attorney/client privilege, my conversation with my other client.” (Id. at 732.) 

The court asked counsel to submit briefs regarding whether there was a basis for a 

mistrial as to McIntyre and, if so, how that would affect his co-defendants, the Williams 

brothers. The court stated it was “leaning towards” finding a mistrial and asked counsel 

to state whether they believed there were any alternatives. (R. Vol. II at 752.) Rokusek 

requested the court “order that the government be prohibited from calling Mr. Barbee as a 

witness in this case” so that “no conflict would exist.” (Id. at 753.) Counsel for the codefendants and the government suggested three other alternatives: (1) obtaining a waiver 

of attorney/client privilege from Barbee; (2) severing McIntyre from the trial and 

proceeding against the Williams brothers; and (3) delaying the trial for 30 to 60 days to 

allow a new attorney to represent McIntyre.

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On April 14, the court proposed its ruling and then asked the attorneys to state any 

objections on the record. It concluded Rokusek could not proceed as McIntyre’s counsel 

because there was an actual conflict of interest regarding her representation of McIntyre

and “a wavier could not cure the present problems” because McIntyre “is unable to give a 

knowing waiver.” (Id. at 789-90.) It then said: “In considering whether declaring a 

mistrial is appropriate, this court uses discretion to determine whether such declaration is 

compelled by manifest necessity. Federal Rule of Criminal Procedure 26.3 requires this 

court to solicit alternatives from counsel before ordering a mistrial.” (Id. at 790.) 

The court considered—and rejected—each of the alternatives counsel proposed. It 

rejected the alternative of prohibiting Barbee from testifying because Barbee “may serve 

as a witness for the government or for [co-]defendants” and “[t]he court will not prohibit 

the other defendants from calling witnesses that may have potentially beneficial 

information.” (Id. at 791.) In addition, the court noted “[t]his alternative [prohibiting 

Barbee from testifying] does not solve the problem that Miss Rokusek may have learned 

information related to the confidential informant through her representation of Mr. 

Barbee, and may therefore be unable to effectively cross-examine the confidential 

informant.” Id.

Because the court concluded “there [were] no viable alternatives to remedy the 

problems created by Miss Rokusek’s conflict” it held “a mistrial for Terry McIntyre 

[was] a manifest necessity.” (Id. at 793.) It declared mistrials as to all defendants,

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overruling the objections of all three.2

 Rokusek again requested the court prohibit Barbee 

from testifying at trial. It overruled the objection and announced its final ruling: 

First, the court finds that Miss Rokusek has an unwaivable conflict of 

interest. Miss Rokusek is unable to continue to represent defendant Terry 

McIntyre in this trial. Requiring defendant Terry McIntyre to proceed 

without counsel or with new counsel would significantly hinder his Sixth 

Amendment right . . . to effective assistance of counsel and his right[] to a 

fair trial. Without any viable alternatives, the court finds a mistrial for 

defendant Terry McIntyre necessary. Second, because defendant Terry 

McIntyre cannot proceed in the current trial, the court severs his trial from 

the remaining defendants. Third, [the] court finds that the resulting trial 

could also violate the rights of defendant Johnnie Williams and defendant 

Zachary Williams. Without any viable alternatives, the court finds that 

mistrials for defendants Johnnie Williams and Zachary Williams are 

necessary. 

(Id. at 811-12.) 

C. Motion to Dismiss and Second Trial

The government filed a third superseding indictment on April 24, 2008, which 

expanded the time period for the conspiracy and alleged two additional counts against 

McIntyre.3

 McIntyre moved to dismiss the indictment based on double jeopardy. After a 

hearing the court denied the motion, explaining “it went to great lengths to discover and 

evaluate all possible options for continuing [the first trial].” (R. Supp. Vol. II at 59.) 

“[T]here was no bad faith or intent to deceive on the part of the government.” (Id. at 60.) 

It “considered . . . carefully” the option of prohibiting Barbee from testifying but 

 2

 McIntyre’s rights are not co-extensive with the rights of Zachary Williams and 

Jonnie Williams. Rokusek’s representation of Barbee affected McIntyre and his codefendants in different ways. The Williams brothers have filed separate appeals, each 

challenging, inter alia, the necessity of a mistrial. We do not consider whether the 

mistrial was warranted as to them. 

3

 McIntyre does not complain about the broadened scope of this indictment. 

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concluded it was not “a viable alternative.” (Id.) The court “affirm[ed] its finding that a 

mistrial for Terry McIntyre was a manifest necessity.” (Id. at 61.) 

McIntyre’s second trial commenced in November 2008. He was tried with 

Zachary Williams and Johnnie Williams. The jury convicted him of nine of ten counts;4

the court sentenced him to 322 months imprisonment. He moved for a new trial which 

the court denied. He appeals from his conviction and sentence complaining of the denial 

of (1) his motion to dismiss and (2) his motion to suppress.5

II. DISCUSSION 

A. Motion to Dismiss

“When a mistrial has been declared, the Double Jeopardy Clause precludes a 

retrial of the defendant unless the defendant consented to the mistrial, or unless the 

mistrial was compelled by manifest necessity.” United States v. Crotwell, 896 F.2d 437, 

439 (10th Cir. 1990) (quotations, citation and footnote omitted). The district court 

concluded the mistrial was compelled by manifest necessity. We review this decision for 

an abuse of discretion. United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992). 

“[T]he Supreme Court has refused to adopt a mechanistic formula for the presence of 

manifest necessity, and has repeatedly reiterated that trial judges must be accorded broad 

discretion to declare a mistrial.” Walck v. Edmondson, 472 F.3d 1227, 1236 (10th Cir. 

 4

 Barbee did not testify in the second trial.

5

 On October 30, 2008, McIntyre appealed from the district court’s denial of his 

motion to dismiss the third superseding indictment. His appeal was assigned Case No. 

08-3304. It was abated on December 2, 2008. McIntyre appealed from the final 

judgment on June 17, 2009. On June 26, 2009, the order abating his appeal was vacated. 

His current appeal (Case No. 09-3173) has been consolidated with his prior appeal. 

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2007) (quotations and citations omitted). In considering whether a mistrial resulted from 

manifest necessity, we generally consider many factors,6

 but we focus our discussion 

here on McIntyre’s arguments. 

McIntyre contends the mistrial was not compelled by manifest necessity because 

the court could have proceeded with the trial if it had simply prohibited Barbee from 

testifying. We can certainly consider whether the possible prejudice created by 

Rokusek’s representation of Barbee could be “cured” by some action other than a mistrial 

 6

 One commentator has listed the factors relevant to the manifest necessity 

determination as follows: 

(1) the source of the difficulty that led to the mistrial—i.e., whether the 

difficulty was the product of the actions of the prosecutor, defense counsel, 

or trial judge, or were events over which the participants lacked control; (2) 

whether the difficulty could have been intentionally created or manipulated 

for the purpose of giving the prosecution an opportunity to strengthen its 

case; (3) whether the possible prejudice or other legal complications created 

by the difficulty could be “cured” by some alternative action that would 

preserve the fairness of the trial; (4) whether the record indicates that the 

trial judge considered such alternatives; (5) whether any conviction 

resulting from the trial would inevitably be subject to reversal on appeal; 

(6) whether the trial judge acted during the “heat of the trial confrontation”; 

(7) whether the trial judge’s determination rests on an evaluation of the 

demeanor of the participants, the “atmosphere” of the trial, or any other 

factors that similarly are not amenable to strict appellate review; (8) 

whether the trial judge granted the mistrial solely for the purpose of 

protecting the defendant against possible prejudice; (9) whether the 

evidence presented by the prosecution prior to the mistrial suggested a 

weakness in the prosecution’s case (e.g., a witness had failed to testify as 

anticipated); (10) whether the jurors had heard enough of the case to 

formulate some tentative opinions; (11) whether the case had proceeded so 

far as to give the prosecution a substantial preview of the defense’s tactics 

and evidence; and (12) whether the composition of the jury was unusual. 

Walck, 472 F.3d at 1236 n.5 (quoting 5 Wayne R. Lafave et al., Criminal Procedure 

25.2(c) n.18 (2d ed. 1999). 

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and, if so, whether the trial judge considered such alternative. See supra n.6. Here, 

Rokusek raised the alternative of prohibiting Barbee from testifying before the district 

court but the court rejected it because it did not want to prohibit McIntyre’s codefendants from calling Barbee as a witness. Notably, Rokusek advised the court she 

“was wanting to call [Barbee] as a witness in this case because I felt there was 

exculpatory information . . . .” (R. Vol. II at 716.) Even if the court had prohibited 

Barbee from testifying, it would not have solved the problem regarding Rokusek’s 

continued representation of McIntyre. The court concluded she had a conflict of interest 

that McIntyre could not waive because she could not tell him what she learned from 

Barbee. Thus, McIntyre would have had to proceed with new counsel, following a delay 

of sufficient length to allow the new counsel to become familiar with the case. This 

would have presented a significant hardship to the jury, who was originally advised the 

trial would last four to six weeks. We have explained, in a similar context: “[T]he court 

was not required to accept a solution which remedied only one of the problems or offered 

temporary relief.” United States v. Calabrese, 645 F.2d 1379, 1383 (10th Cir. 1981). 

McIntyre argues “[t]he government caused the situation leading to the mistrial.” 

(Appellant’s Br. at 17.) If this were true, it would certainly factor into our analysis. See 

supra n.6. But it is not. The court specifically found the government did not act in bad 

faith in failing to inform Rokusek of Barbee’s involvement prior to trial and we see no 

reason to doubt that finding. Indeed, McIntyre’s counsel conceded at oral argument that 

there was no bad faith here. McIntyre also contends the mistrial was “prematurely . . . 

granted” because Barbee was never actually called as a witness. (Id.) This argument 

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ignores the court’s conclusion that Rokusek could not continue to represent McIntyre 

because McIntyre could not waive the conflict of interest. 

McIntyre relies on Walck to support his position. In Walck, the state trial court 

declared a mistrial over the defendant’s objection when a key witness went into early 

labor and was taken to the hospital to deliver her child after the jury was sworn and heard 

testimony. 472 F.3d at 1231. We affirmed the district court’s grant of the defendant’s 

petition for habeas relief because we concluded “[the witness’s] absence did not give rise 

to manifest necessity.” Id. at 1238. We explained: (1) her testimony was not “absolutely 

necessary;” (2) “the prosecution proceeded to trial in the face of a known risk that [the 

witness] would be unavailable at trial;” (3) the reason for the mistrial—witness 

unavailability—“was not significant enough to give rise to manifest necessity;” and (4) 

“the state trial judge did not sufficiently consider the viable and reasonable alternatives to 

a mistrial.” Id. at 1238-40. 

Here, we are not reviewing a case of witness unavailability but instead, a case 

involving a conflict of interest between an attorney and a client. Thus, the first three 

considerations factoring into our decision in Walck are inapplicable here. And, unlike in 

Walck, the court here asked the parties to suggest alternatives to a mistrial, as required by 

Rule 26.3 of the Federal Rules of Criminal Procedure.7

 A more analogous case is 

Calabrese, 645 F.3d 1379. 

 7

 Fed. R. Crim. P. 26.3 states: “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.” 

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In Calabrese, the trial court sua sponte granted a mistrial as to all defendants after 

counsel for one of the co-defendants attempted to impeach a government witness by 

inquiring whether the witness had lied in an affidavit filed in an earlier criminal 

proceeding. “[T]he [same] attorney had represented the witness in the earlier proceeding 

and had prepared the affidavit he was using for impeachment.” Id. at 1382. We held the 

district court did not err in denying the defendant’s motion to dismiss the second 

indictment on double jeopardy grounds because the mistrial was compelled by manifest 

necessity. We explained: 

The court below was confronted with a kaleidoscope of problems, 

including a possible violation of the attorney-client privilege, the attorney’s 

role as both an advocate and a witness in the proceedings, and a 

controversy over the ethical propriety of the attorney’s prior representation 

of the witness. 

Id. at 1383. We noted “the mistrial declaration was not caused by prosecutorial or 

judicial overreaching.” Id. 

The district court here was presented with a similar “kaleidoscope of problems” 

and its decision to grant a mistrial did not result from “prosecutorial or judicial 

overreaching.” It considered various alternatives to declaring a mistrial and, after 

thorough consideration, concluded none were viable. Like the district court in Calabrese, 

the trial court here acted with the principal goal of protecting the interests of McIntyre 

and his co-defendants. In light of the “broad discretion” afforded trial judges to declare a 

mistrial, see Walck, 472 F.3d at 1236, we conclude the court did not abuse its discretion 

in denying McIntyre’s motion to dismiss. 

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B. Motion to Suppress

“When reviewing the denial of a motion to suppress, we view the evidence in the 

light most favorable to the government, accept the district court’s findings of fact unless 

clearly erroneous, and review de novo the ultimate determination of reasonableness under 

the Fourth Amendment.” United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004). 

In assessing the constitutionality of an investigatory stop, we ask whether 

the circumstances demonstrate that law enforcement officers had 

reasonable suspicion that criminal activity may have been afoot. In making 

this determination, we look at the totality of the circumstances to determine 

whether a particularized and objective basis, viewed from the standpoint of 

an objectively reasonable police officer, existed for suspecting legal 

wrongdoing. 

United States v. Lopez, 518 F.3d 790, 797 (10th Cir. 2008) (citations omitted). 

McIntyre contends the district court erred in denying his motion to suppress only 

because “there [was] . . . insufficient evidence of potential criminal activity . . . .” 

(Appellant’s Br. at 24.) He argues: “Driving without headlights for a few seconds at 

most does not qualify as even a minimally objective justification for a stop.” (Id.) 

However, he also acknowledges—as he must—that Star did not stop the vehicle in which 

he was traveling solely because he observed it being driven without headlights. Star also 

reasonably suspected criminal activity because the vehicle was traveling through the 

parking lot of a hotel at 2:30 a.m. even though it was registered to an individual with a 

local address—an individual whose relatives had been involved in “[g]uns, drugs, other 

crimes, alcohol-related crimes.” (R. Supp. Vol. I at 51.) 

Based upon his law enforcement experience, Star suspected the vehicle might have 

been involved in an automobile burglary or drug-related activity. Tellingly, he had been 

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involved in a drug investigation—involving one of McIntyre’s co-defendants—at the 

same location only a few months prior to this stop. “[O]fficers are not required to ignore 

the relevant characteristics of a location in determining whether the circumstances are 

sufficiently suspicious to warrant further investigation.” Illinois v. Wardlow, 528 U.S. 

119, 124 (2000). The stop here occurred in an area of expected criminal activity; a factor 

relevant to the reasonable suspicion analysis. See id. 

McIntyre argues there may have been an entirely innocent explanation for the 

conduct observed by Star. Though possibly true, it does not negate a finding of 

reasonable suspicion. “[O]fficers are permitted . . . to draw inferences and make 

deductions that might well elude an untrained person.” United States v. Moore, 22 F.3d 

241, 243 (10th Cir. 1994) (quotations omitted). 

In analyzing whether a given set of factors gives rise to the requisite 

reasonable suspicion, we . . . must be careful to judge the officer’s conduct 

in light of common sense and ordinary human experience but also to grant 

deference to a trained law enforcement officer’s ability to distinguish 

between innocent and suspicious circumstances. 

Lopez, 518 F.3d at 797 (quotations omitted). Viewed under this standard and accepting 

the trial court’s factual findings, we agree Star had reasonable suspicion to stop the 

vehicle. The court did not err in denying McIntyre’s motion to suppress. 

AFFIRMED.

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge 

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