2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

9-14-2004 

# U S A v . R i ve r a

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ocke t N o . 03-1658

F o l lo w thi s a nd a dd it ion al w ork s at : h tt p://d i g it alc ommon s .l a w
. v i l l a no va
. e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w
. v i l l a no va
. e du

. Re c omme nde d C it at ion

" U SA v . R ive r a " (2004). 2004 D e cisio n s
. P ape r 281. h tt p://d i g it alc ommon s .l a

w
. v i l l a no va
. e du/thir dc ir c uit_2004/281PRECEDENT IAL

IN THE UNI TED STATES COURT

OF APPEALS FO R T HE TH IRD CIR CU IT

Case No: 03-1658 UNITED S TATES OF AMERI CA

v. FELI PE RI VERA, Appellant

______________________ Case No: 03-1659 UNITED S TATES OF AMERI CA

v. HOMER WIL LI S KELL Y, Appellant

______________________ Case No: 03-1660 UNITED S TATES OF AMERI CA

v. LUDVI G DANIE LSON, Appellant

______________________ On A ppeal Fro m the D istrict Court of the Virgi n Islands Distri ct Judge: The Honorable Raymond

L. Finch (D.C. V.I. 02-cr- 00167-1; 3; 4) Argued May 6, 2004

______________________ Bef or e: BARRY, AMBRO, an d SMI TH,

Circuit Judges

(Fil ed: Septe mber 14, 2004 )
Jeffrey B. C. Moorhead (Argued) C.R.T. Brow Buildi ng 1132 King Street Ch ristiansted , St. Cro ix United States Virgi n Isla nds 00820 Counsel for Appellant Rivera Martial A. Webster 116 Queen Cross Stree t Fred eriksted , St. Cro ix United States Virgi n Islands 00840 Co unse l for Ap pellan t Kelly
BeverlyA. Edney P.O. Box 4958 Kin gshill, St. C roix United States Virgi n Islands 00851 Counsel for

Appellant

Danielson

David M. Nissman United States Attorney St. Cla ir Theodore (Argued) Assist ant Unite d States Attorney 1108 King Street , Suite 201 Ch ristiansted , St. Cro ix United States Virgi n Islands 00820 Counsel for

Appellee

______________________
OPINI ON OF THE COURT

______________________
SMIT H, Circuit

Judge.

This case invol ves the appl ication of the Double Jeopardy Clause wh ere a Distri ct Judge has sua s pon te declar ed a mistrial over a defense obj ect ion. The defe ndan ts were indicted for viol ations of 21 U.S .C. §§ 841 and 846 , a nd 1 8 U. S. C. § 2. N ear the close o f th e Gov ernmen t’s
case, a key witness i njured his l eg and was unab le to appear

in court as schedul ed. Befo re the w itn ess’ s prognosi s could be ascert ain ed by couns el or t he District Co urt, and over the ob je ction of defendants, the Dist

rict Judge d eclar ed a mi str ial, ordered t

he matter

reschedul ed for a new tria l and deni ed a m otion to2

dismiss the ind ictme nt. Th e def enda nts broughtthis tim ely ap pea l. W e conclude that the decl arati on of a mistrial was not

man ifestly necessary and, as such, rep rose cutio n is b arre d.

I. On December 3, 2002, t he United States Attorneyfor the D i stri ct of the Virg in Island s fil ed a n indictment against Felipe Rivera, Homer Willis Kellyand Lud vig Danielson, charging e ach with one count of conspiracy to possess w ith t he intent to dis tri bute more t han five ki lo gr ams of cocai ne in viol ation of 21 U.S .C. §§ 841 (a)(1), 841(b)(1) (a) and 846. The indictm ent a lso ch arged eac h defendantwith one count of atte mpting to possess with the i ntent to dist ribut e more than fi ve k il ogr ams of

cocaine i n violat

ion of 21 U.S.C. §§ 841(a ) ( 1), 841(b)(1)(a), and 846, and 18 U.S. C. § 2. 1

A jurywas empan e led and trial commenced on Monda y, February10, 2003. The tri al proce eded over the course of the week, wit

h the Gove rnment presenting its case. On F riday, February 14, the Government be gan the direct examinat ion of its las t witness , Christ opher Sc ho en ba um

. Wh e n the Fridaysess ion con clud ed, th e District Cou rt scheduled t

he resumpti on of

tri al for Tuesday , Fe bruary18, the day after

Presidents’ Da y. Schoe nbau m retu rned to Orlando, Fl orida for

the long weekend.

Befo re tria l re su m ed on Tu es da y, Fe b ruary 18, the Government informed the Cou rt that Sch oenbaum had bee n hospit aliz ed with a bro ken leg. According t o the G over nm ent’ s att orney , Schoenbaum had un dergon e surgery during w hi ch a plat e and severa l pins had been placed in his leg. The G overnm ent’s information wa s th at Schoe nbau m w as still in t he ho spital bu t that he wa s to b e dischar ged in the ne ar future . The trial

was recess ed un til Th ur sd ay, February20.

When c our t reconve ned on the morning of F ebru ary 20, th e attorney for the Go vern men t expla in ed that all t hat remained in the presentati on of its case

were tape re cordings that would be play ed to the juryand the rest of the direct test imony of Sch oen bau m. 2 T h e Government explai ned, however, tha t Schoenbaum wo uld n ot be a ble to tr avel until the fo llowing week. Upon learning this, co un s elfo r co

- de fe nd an t Mi r andaColon, state d: “[ Y] our Ho nor , fo r the record

. . . we’re go ing to mo ve for a

1 Tw o other individu als, Claude E arl Francis an d Da niel Miran da-Co lon, were charged i n the same i nformati on and went to trial wit

h the appel lants . They

are no t parties to the pre sent ap peal. 2 The exac t nature of the se tape s is unclear from the re cord. I t is clear that Schoenbaum was heard on at l east one tape, and that the rec ordings w ere lengthy . One of these tapes had be en play ed to the jury , but 20 ha d not as of the time trial was to resu me on Februa ry 18, 2 003

.3

mistria l .” Miranda-Colon’s counsel explai ned that he was concerned about the lapse of time between the juryhearing t he Gov ernmen t’s direct

examinati on and the eventual cross- examinati on o f Schoenbaum by the defend ants. Further, Miran da-Co lon’s attorney was concerned that, if Schoenbaum were required to use a whe elchair, th e j ury would b e more sympa thetic to his testimony. Counsel for the rema ining d efen dants joinedin suppo rt of t he mo tion. C oun sel for Ke lly

com mented that he had c once rns ab out t w o of his witness es go ing on vacation if t he tri al were to be postpon ed. Dan ielson’s counsel cite d scheduli ng confli cts i f the tri al we re to be p ostp one d. C ounse l for Rivera expressed his c once rn that he

wo uld look li ke “ s om e kind of an imal”

cross- examining Schoenba um while he

was recu per ating

. The Government opposed the defendant s’ moti on fo r a mistrial. The Di stri ctCo urt r uled p rom ptly and sum ma rily: “V ery w ell. M oti on for mistrial is de nied .” The Dist rict Judge

ma de no other s tate ments, nor did he provide the de fend ants the opp ortun ity t o
s eek reco nsid erati on o f his rulin g. T h e Cou rt rec essed the jury for the da y, and scheduled tr ial to re su m e o n M on da y, Feb rua ry 24.

When Fe bruary24th arrived, the attorney for the Governmentinformed the Cou rt that Sc hoen baum had a ttemp ted to board a plane t o return to the t rial , but was turnedback when narcoti c m e dications and syri nges were found in his l uggag e. According to the pr osecutor , the airl ine, after ques tioning Sch oenb aum as to h is reason for posses sing the medication, als o refused to all ow him to board the plane withouta doc tor’ s waiver. Government counsel noted that Schoe nba um was scheduledfor an appo intme nt wi th his doctorat 10:0 0 A. M. that very dayand advisedthe C ourt tha t “with in a few h ours
we [will] know whe ther o r not t he doctor will relea se [Schoenbaum] t o get on the plan e.”

The defendants request ed tha t the Government go forw ard or that the C ourt strike Schoe nbaum ’s testimony. Rivera’s attorney informed the Court that he did not

wa nt a mistrial. Counsel for Miranda

Colon inste ad suggeste d that “ perhaps [th ey] cou ld re sum e testimony tom orro w.” The Gov ernmen t pre ssed the Court f or
more time

. The following discuss ion then ensued:

THE COU RT: The fact of the matter is that i n th is case there is inconveni ence to eve ryone, C ourt,

coun sel, the Government. I have 140 people re ady to go in anothe r tri al in anti cipation of somethi ng li ke t his ha ppen ing. T he big problem for m e in this case is the way in which the cas e has unfolded. That is, with freq uen t inte rrupt ion s , numerou s interr upt ions, the juro rs hav ing to sit for long perio ds of ti me,
som et ime s for day s, as a matter of fact. Together with the fact that the large portion of the testi mony was recorded, and a large p ortio n of it, recordedt est imony, is stillto be4

present ed to the j urors. I find t hat the nature of the record in g particu larly is such that jurors are not likel y t o recal l pr operl y and fit into the pro per se quen ce of even ts and give proper

weight t o this recordedtestimony i n light of the continue d inter

rupti ons and the long delay. And I [am ] disp ose[d ] to declaring a m istri al, and will so declar e. I will de clare a mistr i al. Gentlemen a nd ladie s, wil l y ou proceed dow nstairs to M agistrate Resnick, and he will reschedul e the

m att er . I w ill d isc ha rg e th e ju ry.
[Counsel f or Miranda-Colon] : For the record, Defendant Colon wo uld like to objec t and a sk fo r a dism issal.

THE C OUR T: Denied.

[Counsel for Ri vera]: Denied?

[Co unse l for K elly]: I join in tha t.

THE C OUR T: Denied.

That s a me d ay, Febru ary 24, a M agistrate Judge issued an order r e-schedul ing trial fo r Monday, May 5, 2003. On March 5 , 2003, the D istrict C our t is sued a “noti ce” which re a d: “De fendan ts moved for a mistrial on Februa r y 24, 200 3. A t a he ari ng held on such moti on, for t he

reasons st ate d on the rec ord, the Co urt grantedDe fen dan ts’ m otio n.” This timely appeal fol lowed.

II. We have j uri sdiction over t he Distri ct Court’s r ejec tion of th e defendants’ motion to dis miss under Abney v. United State s , 431 U.S. 651, 662 (1977)

. Wh ile a n order deny ing a motion to dismis s an indi ctmenton d oub le jeopardy grounds “l acks the f i n ality tradition ally cons idered indisp ensa ble to appe llate rev iew ,” Abney counsels that such orders s atis fy t

he coll atera l order doctri ne arti culat ed in Cohen v. Benefi cial Industr ies Loan Corp. Id . at 659 (disc ussing Cohen v. Beneficial Industr ies Loan Corp. , 337 U .S. 541, 546 (1949)). Because th e Di str ict Court denied the defendants’ motion t o dismis s on what

were clearly do uble jeopardy grounds, the juri sdictional requis ites of § 1291 have bee n m et. Id . at

662.

III. The Double Jeopardy Clause forbids that “ any per son be subje ct for t he

sa me offence to be twice p ut in jeopardy of li fe orli mb. ” U. S. Con st . amen d. V. Under that cla us e, a defendant has a “value d right

to have hi s tri al completed by a parti cu l ar tribunal, ” Wade v. Hunter , 336 U.S. 684, 689 ( 1949), which i s a ri ght held bythe indi vidual, independent of the pub lic interest in co ndu cting “ fair trials designedto end in j us t jud gm ents ,” Arizona v. Washingt

on , 434 U. S. 497, 503 n.11 (1978) (i nternal quot ation and citation

om itted ).

Prote ctions against

double je o pard y5

are ancient 3 and w e in ter pret the Do uble JeopardyClause in l ight of “ its origi n and the l ine of i ts growth. ” Green v. Unite d States , 355 U.S . 184 , 19 9 (1957) (Frankfu rter, J., dissent ing ) (quoti ng Gom pers v. United State s , 233 U .S. 604, 610 (191 4)). Th e D oub le Jeo pardy Clause’s prohi bi tion of mu ltiple trials evolved in reac t i on to “a time when English judges se rved the Stuart monarchs by ex ercis ing a power to di scharge a j ur y whenever it a ppeared that the Crow n’s evidenc e wo uld be in suf ficie nt to con vict.” Washingt on , 434 U.S. at 507. 4 Accordi ngly , a defendant maynot be

re prose cuted where a firs t trial ha s ended with an im prop erly declar ed m istrial. United Statesv. Perez , 22 U .S. (9 Wh eat) 579 (18 24).

A m ist ria l “m ay b e grante d upon the initiati ve of

eithe r party or

upon the

co urt’s ow n in itiativ e.” United States v

. Scott , 437 U.S. 82, 92 (1978). 5 O rd in ar ily, whe re the defendant

seeks a m istrial, “[n]o interest protected by t

he Double Jeopardy Clause is i nvaded

. ” Id. at 100. The Go vernmentmay, theref ore, bring a subsequent reprose cution wit hou t offending the Consti tuti on. L ove v. Morton , 112 F.3d 131, 133 (3d Cir. 199 7). 6 3 The G reek orator, Demosthenes, exp la in ed t

hat “the l aws f

orbi d t he s ame
ma n to be tr ied tw ice o n th e sa me issu e.” Whalen v. United State s , 445 U.S. 684, 699 (1980) (Rehnqui st, J., dissent ing) (citing 1 Demosthenes 589 ( J. Vince trans ., 4t h ed. 1970)) . Roman law contai ned simil ar prohi biti ons, with the precept in the Dige st of Jus tini an that “the g ove rn orsho ul d no t p er mit th e s ame person t o be again acc used of a cri me of whi ch he ha d be en ac qui tted .” Ja y A. Sigler , Double Jeopardy: The Development of a Legal and Social Policy 2 (1 969 ); see also Bartkus v. Illinois , 359 U.S. 121, 152 n.3 (1959) (Bl ack , J., dis sen ting ).

4 Repeated attempts to convict fell out of favo r by the late Seventeen th Centu ry and the re ign of King James I I, when prosecutions which subj ected an indivi dual to doubl e jeopar dy began to be bar red

. Washington , 434 U.S. at 508 n.23 (ci ting State v . Garrigue s , 2 N.C. 188, 189 (1795)).

5 See Washington , 434 U.S. at 498 (holdi ng that de fense counsel ’s imprope r stat ements cre ated manife st neces sity for the st ate trialcourt t o grant t he prosecution ’s motion fo r a mistrial); United Stat

es v. Valadez-Camarena , 163 F.3d 1160, 1163 ( 10th Cir. 1998) (noting that reprosecution is usuall y bar red where the pros ecuti on request ed the mis trial).

6 We reject the Go vernm ent’s contention that

the defendant s requested the mist rialat is sue here. In it s March 5, 200 3 “no tice,” the Distric t Cou rt did state that the defen dants had mov ed for a mistrial and that t

he motion was granted at a sub sequ ent he aring. Y et def enda nts did not request t

he mistrial de clare d on February24, which provi des the bas is for6

A fundamentally

differe nt analysis appl ies where a mistrial i s sought by the Governmen t , or, as here, e ntered by the Cou rt sua s pon te . There i s an inher ent danger that the Go vern men t will“enter [] upon the trial of the case without s uffici ent evidence to conv ict” and request a mistrial simplyto marshala bette r cas e. Downum

v. Un ited S tates , 372 U .S. 734, 737 (1963). Si m ila rly, the Double Jeopardy Clause “prev ents a prosecut or or j udge from subjecting a defenda nt to a s econd pr o secuti on by di sconti nuing the t rial when it appe ars that the jurymight not

con vict.” Green , 3 55 U

. S . at 188. The power to decl are a mist rial“o ught to be

u sed with the greatest cauti on, under urgentci rcum stance s, and for v ery plain and obvious caus es.” Perez , 22 U.S. (9 Wh eat) at 580. Only where t he mistrial is requir ed by “ma nifest n ecess ity ” will reprose cution be permitted under the Do uble Je opa rdy C laus e. Scott , 437 U. S. at 92. 7 The reali ties of litigati on preclude a precise defini tion of

“manifest necessi ty ”: [A] crimina l trial i s, even in the best

o f circumst ances, a

complicated affa ir to manage. The pr oceedings

are dependent in the first inst ance on the most elem entary sort o f considerations, e.g. , the he alth of the various wit nes ses . . . . And when

on e add s the s che dul in g pr obl ems aris ing from case overloads , and the Sixth Amen dment’s r equirement that the single tria l to w hich th e dou ble jeopardy provisi on restrict s the G o vernmentbe co nd uc ted sp ee di ly, it bec om es read ily appare nt that a mecha n ical rule pr ohibiting ret rial whenever cir cumstances compel the dis charge of a ju ry witho ut t h e

the pres ent double jeopardy clai ms. The mistrial th ey had e arlier sou ght w as flatly denied b y the District Court on F ebruary 20. The recor d is cl ear on thi s, and t he Distri ct Court’ s statement on March 5, 2003 that t

he defendants sought the February24 mistrial i s plai nly wrong.

7 See also Unit

ed State s v. Stevens , 177 F.3d 579 (6th Cir. 1999) (rever sing the District Cou rt’s denial of def endan t’s motion t o dismis s on double j eopardy grounds aft er the Government moved for a dism issal w hen its k ey witne ss failed to testify); United Stat es v. Sammaripa , 55 F.3d 433 (9th Cir. 1995) (repr osecuti on barred w here gov ernmen t moved for a mistrial, which was subsequent ly granted by the dist

rict court, on the grounds that the defendant

had improperl y exercised peremp tory challenges during jury selectio n); Un ited Sta tes v. C oun cil , 973 F.2d 251, 256 ( 4th Cir. 1992) (where the prosecut on fail ed to show his request for mistrialwas based upo n a manifest necessity, reprosecution w as barred); United States v. Ruggiero , 846 F.2d 117, 123 (2d Cir. 1988) (“when the Governm ent moves for a mistrial, it must sho w a hig h de gre e of nec essit y, a ‘man ifest ne cessity,’ to av oid a d oub le jeopardy bar to a s ubsequent prosecution ”).7

defend ant’s co nse nt would be too hig h a p rice t o pa y . . . . Un it edStates v. Jorn, 400 U.S. 470, 479- 80 (197 1); see a lso Illinois v. Som erville , 410 U.S . 458 , 4 63 (“The int erest s of the pub lic in seei ng that

a crimina l prose cution proceed to v erd ict . . . need not be forsaken by the fo rmu la ti on o r app lication o f rigid rules that ne ces sari ly preclude the vindica tion of tha t in t e rest .”)

. Nev ertheless, “tri al judge s may decl are a
m ist rial witho ut barr ing rep rosec ution o nly in extraordinarycircumst ances

. ” United Statesex rel. Russo v. Super ior Court of N.J. , 483 F.2 d 7, 1 3 (3 d C ir. 19 73)

.
The questi on of w het her “manifest

ne ce ss ity” exist ed in the case before us is

a mixed questi on of

law and fact over which we ex erc ise plen ary rev iew

. Id . at 15 (citing Townsend v. Sain , 372 U.S. 293, 309 n.6 (1 963 )); Un ited Sta tes ex r el. Thomas v. St

ate of N. J. , 472 F.2d 735, 737-38 (3d Cir . 197 3). Reprosecuti on may be had w hen th e mistria l is necessi tate d by the jury’s inability to agre e upo n a ve rdict. Perez , 22 U.S. (9 Whea t) a t 580; Richardson v. United State s , 468 U.S. 317, 325 (1984) (“ the fa ilure of the jury to reach a verdict is no t an event which terminates jeop ard y”). Further, if a j uror is bias ed, Simmons v. United S tat es , 142 U.S. 148 (1891), or serve d on the indict ing grand jury , a trialjudge m ay declar e a mi str ial without pr ecludi ng a second prose cutio n , Thompson v. United St ates , 155 U.S. 271 (1894). Where, as here, the basis for the District Cou rt’s declar ation of

a mistrial i s the unavai lab ili ty of a prosecution witness, “the st rictest sc ruti ny is appropri ate. ” Washington , 434 U.S . a t

508; Crawford v. Fenton , 646 F.2d 810, 817 (3d Cir. 1981) (“I f, for e x ampl e, a mistrial has b een g ranted in orde r to allow the stat e t o achieve a t acti cal advant age, then the stri ctestscrutiny is appropriate.”).

C riti ca lly, a mis tri al must not be declar ed withoutprudentconsider ation of

rea sona ble alte rnati ves. Feder al Rule of Criminal Proc edur e 26.3 requ ires that, “[b]efo re ord ering a m istrial, t he cou rt must give ea ch defendant and t he governmentan opportuni ty to comment on the prop riety of the orde r, t o stat e whether that party con sents o r objec ts, and to suggest altern ati ves.” The di alogue f os teredby Ru le 26.3 ensu res tha t only those mistrials that are truly necessary are ultima tely granted. Crawford , 646 F.2d at 817-18; United

Statesv. McKoy , 591 F.2d 218, 223 (3d Cir. 1979). The Government bears the burden of dem onstra ting tha t, “under the circumstances c on fronti ng the tri al judg e, he h ad no alterna tive to th e declar ation of a mistrial. ” McKoy , 591 F.2d at 222 (citing Jorn , 400 U .S. at 487). U ltim ate ly, however, the Distri ct C ourt must ex ercis e prudence and care, gi ving due consider ation to rea sona bly availab le alte rnati ves to the dr asti c measure of a mistrial. Crawford , 646 F.2d at 818-19. Wh ere a District Cou rt sua sponte declar es
a mistrial i n haste, witho ut caref ully

cons iderin g alterna tives av ailable to it, it cannot be said to be acting under a manifest nec essit y. Morton, 112 F.3d at 134-35; accord Glover v. M cM ackin , 950 F.2d 123 6 (6th Cir. 19 91); Cherry v. Dir. St ate Bd. of Corr. , 635 F.2d 414 ( 5t h C ir

.8

1981) (en b anc); Brady v. Samaha , 667 F.2d 224, 229 (1st Cir. 1981 ). A ny subsequent

reprosecution under those circumst ances is barr e d by the D oub le JeopardyClause.

IV. Th e record i n this case demonstr ates that the D istric t Cou rt fai led to c onsider bo th t he consti tuti onal impl icat ion s atte ndant to the decla ration o f a m istrial, as
we ll as the r easonable alte rnati ves to a mistrial. Ordina rily, the Go vernm ent bears

a heavy bur den of demonstrat ing that there is no alte rnat iv e but to decla re a m istrial. McKoy , 591 F.2 d at 2 22. Here , howe ver, th e Go vern men t opp osed the m istrial, informing the Court t

hat Schoenbaum was meeting with his d octor t o obtain t he

nec ess ary release to trave l to the V irgin Islands. Ratherthan demonstrate manifest

ne ce ss ity, t he Government presented the Cou rt with a rea sonable al ternat ive to a mist rial, i.e

. , that the Court wait “a few hours [to] know whether or not the doctor will relea se [Schoenbaum] t o get on the plan e.”

The concerns identi fied bythe Dist rict Cou rt do n ot justify reje ction o f th i s alte rnati ve, nor d o they am oun t to manifest

ne ce ss ity. Firs t, the District Cou rt expresse d concern about the schedul ing diffi culti es Schoenb aum’ s absence created

. The judge expl ained that the tri al had provided a n “inconveni ence to everyone, Co urt, counsel, the Governm e nt.” The Cou rt further obse rv ed t hat it was scheduledto begin a nother t rialsoon. Scheduling consider ations , however, do no t o utweigh the Court’s dut y t o protect the defendants ’ constitutional right t o be requ i red to st and tri al only once and are, by themselve s, i nsuffici ent to s upport t he declar ation of a mis trial. Jorn, 400 U.S. at 479-80.

Second, th e Di str ict Court expresse d

concern that t

he deli berati ng juror s might have diffi culty

pi eci ng togethe r the evidence fol lowing a disjoin ted trial. Yet at the time the judg e dec lared th e mistria l, only three c alendar

days had passed si nce the Court had rejec ted th e d ef en da nt s’ own request for a mistria l. Fur ther , Schoenbaum had an appo intme nt w ith his doctorat th e very mom ent that the Co urt consider ed decla ring a m istr ial . The record prov ides n o bas is on w hich to conclude that the th ree prior days had signif icantly erod ed the jury’s ability to recall testimony, or t h at furt her eros ion

wo uld occu r in th e sh ort time need ed to determine Schoenbaum ’s prognosis.

What makes th is decl arati on of a mistrial parti cularl y t

roubli ng is that it was due to the a bsen ce of a pro secu ti o n witness. As th e Su pr eme Court expla ined above, the “stric test scru tiny is appro priate when the basi s for the mistr ial i s the

unav ailability of th e critical prosecution evid enc e.” Wa shin gton , 434 U.S. at 508. This is not to s ay t

hat the absence of a key witness can never con st itute manifest

ne ce ss ity. See, e. g., Downum , 372 U.S. at 737 (cauti on ing tha t, based on th e fac ts present ed, the absen ce of a w itness c ould

cons ti tute man ifest necessity for a mistrial). The Distri ct Court, ho weve r,9

must take gre at car e to ensur e that there

are no av ailable a lternati ves before declaring a mistrial in such circumstances. E.g
., United States e x r el. Gibson v. Zieg ele , 479 F .2d 773, 77 8 (3d C ir. 1973). 8 That the G over nm ent it sel f presented the Di stri ct Co urt wit

h a reasonabl e alt ernati ve to a mistrial pl aces theGovernment in a poor position to now argue t hat the Distri ct Court exerc ised suc h care.

The Gover nmen t’s atte mpt to anal ogize this case to t he u nfores eeabl e circumst ances that ne cessi tate d a mistrial in Wade misses t

he mark. 336 U.S. at 687. Wade arose out

of a cou rt martia l initially convened in Krov, Ge rman y during Wo rld War II. A mistri al was declare d after a key witness became illat the same time t hat the A rm y un it w as fo rc ed by t he ong oing confli ct to re loca te. Id

. at 689. The Distri ct Co urt her e w as ha rdly pre sented with the pros pect of advanci ng armies or the in va sio n o f h os tile ter rito ry. Inste ad, a pr ose cution witness s implybroke his leg wh ile away from the juri sdiction on a long weekend. Wade is com pletely in ap posite to the compa rati vel y trivial tria l inconveni ence that the District Cou rt faced.

Inste ad, the facts of this ca se are much closer to thos e in United Stat es v. Ti nn ey , 473 F.2d 1085 (3d Cir . 1973). Tinney was not present when the final day of his t rial began, and th e jud ge inq uired a s to his whereabouts. Tinney’s l awy er expla ined that he ha d ph oned his cli ent’s home and been assured t

hat the defendant had s et out for cou rt som e time befor e. The trial judge then stat ed that

“‘if Ti nney was not prese nt i n ‘ ten minut es, Iam going to have t he

mars hals pick h im up . I am g oing to revoke his b ail a nd commit him. ’” Id. at 10 8 7. The defendant’s counsel obj ected, and as ked f or a sh ort con tinuan ce to determi ne the wher ea bou ts of h is client. The motion was deni ed. Ap prox imate ly ten minutes af ter the jury entere d the ro om, Tinney appeared and expl aine d t hat his vehic le had broken dow n on th e drive to the courthous e. The judge ordered Tinney taken into custodyand d eclare d a m istrial. Id. Thi s Co urt was troubled t hat “the decisi on wa s ma de w ithout re gard to other

reaso nable possibi lities andwithout t aking all the c ircu ms tanc es in to co nsid erati on.” Id. a t 1089. We concl uded that the trial court’s decisio n to decla re a m istrial, after waiting only ten minutes for the defendant to arri ve, was unjus tifi ed and d id not displ ay the car e necessary t o ensure that the situation wa rranted such drastic acti on. See also Morton , 112 F.3d at 134-35 8 In Zieg ele , a key prosecuti on witness was too il l to testi fy after ini tial ly being pre sen t on the f irst d ay ofa m urd er tria l. Id. at 775. The Court declared a recess for the rema inder o f the d ay in orde r to ascertain the seve rity of the witness’s ill ness. The next daythe Court l earned that the witn ess w ould be un able to testify for se veral w eeks . It was only after gaining t

his i nformati on and conducti ng “consider able di scussi on” with the pa rties that the trial court dec lared a m istrial

. Zieg ele , 479 F.2d at 775-78.10

(barring r ep rosecution where the tri al judge decla red a m istr ial a lmos t immediate ly after

learni ng of the death of his mother-i n- law ; although this C ourt fou nd the tr ial j udge’ s dist res s underst andable, a decisio n as to the course of the trial co uld have been made at a l ater date whe n there had been ti me for careful consider ation o f the a ppropri at e alternatives).

We theref

ore concl ude that t

he District Judge did not exercise “‘sound discr etion’ in decl aring amistrial. ” Washington , 434 U.S. at 51 4. Ch oosing not to await

the final prognosis of

Sch oenb aum ’s ability to appearan d testify , the Distri ct Judge prem atu r ely declar ed a mistrial wit hout conside ring the constitutional i mport of h i s decisi on. Because the dec lar at ion of a mistrial was not manifestly necessary, any subsequent reprose cution o f the d efen dants is barred bythe Double Jeopardy Claus e

. The District Cou rt’s order d en yi ng the defendan ts’ motion t o dismis s will be

revers ed.