2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2004

USA v. Rivera

Precedential or Non-Precedential: Precedential

Docket No. 03-1658

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 PRECEDENTIAL

IN THE UNITED STATES COURT

 OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 03-1658

UNITED STATES OF AMERICA

 v.

FELIPE RIVERA,

 Appellant

______________________

Case No: 03-1659

UNITED STATES OF AMERICA

 v.

HOMER WILLIS KELLY,

 Appellant

______________________

Case No: 03-1660

UNITED STATES OF AMERICA

 v.

LUDVIG DANIELSON,

 Appellant

______________________

On Appeal From the District Court

of the Virgin Islands

District Judge: The Honorable Raymond

L. Finch

(D.C. V.I. 02-cr-00167-1; 3; 4)

Argued May 6, 2004

______________________

Before: BARRY, AMBRO, and SMITH,

Circuit Judges

(Filed: September 14, 2004 )

Jeffrey B. C. Moorhead (Argued)

C.R.T. Brow Building

1132 King Street

Christiansted, St. Croix

United States Virgin Islands 00820

Counsel for Appellant Rivera

Martial A. Webster

116 Queen Cross Street

Frederiksted, St. Croix

United States Virgin Islands 00840

Counsel for Appellant Kelly

Beverly A. Edney

P.O. Box 4958 

Kingshill, St. Croix

United States Virgin Islands 00851

Counsel for Appellant Danielson

David M. Nissman

United States Attorney

St. Clair Theodore (Argued)

Assistant United States Attorney

1108 King Street, Suite 201

Christiansted, St. Croix

United States Virgin Islands 00820

Counsel for Appellee

______________________

OPINION OF THE COURT

______________________

SMITH, Circuit Judge.

This case involves the application

of the Double Jeopardy Clause where a

District Judge has sua sponte declared a

mistrial over a defense objection. The

defendants were indicted for violations of

21 U.S.C. §§ 841 and 846, and 18 U.S.C.

§ 2. Near the close of the Government’s

case, a key witness injured his leg and was

unable to appear in court as scheduled.

Before the witness’s prognosis could be

ascertained by counsel or the District

Court, and over the objection of

defendants, the District Judge declared a

mistrial, ordered the matter rescheduled

for a new trial and denied a motion to
2

dismiss the indictment. The defendants

brought this timely appeal. We conclude

that the declaration of a mistrial was not

manifestly necessary and, as such,

reprosecution is barred. 

I.

On December 3, 2002, the United

States Attorney for the District of the

Virgin Islands filed an indictment against

Felipe Rivera, Homer Willis Kelly and

Ludvig Danielson, charging each with one

count of conspiracy to possess with the

intent to distribute more than five

kilograms of cocaine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(a) and 846.

The indictment also charged each

defendant with one count of attempting to

possess with the intent to distribute more

than five kilograms of cocaine in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a),

and 846, and 18 U.S.C. § 2.1

A jury was empaneled and trial

commenced on Monday, February 10,

2003. The trial proceeded over the course

of the week, with the Government

presenting its case. On Friday, February

14, the Government began the direct

examination of its last witness,

Christopher Schoenbaum. When the

Friday session concluded, the District

Court scheduled the resumption of trial for

Tuesday, February 18, the day after

Presidents’ Day. Schoenbaum returned to

Orlando, Florida for the long weekend.

Before trial resumed on Tuesday,

February 18, the Government informed the

Court that Schoenbaum had been

hospitalized with a broken leg. According

t o the G over nm ent’s attorney,

Schoenbaum had undergone surgery

during which a plate and several pins had

been placed in his leg. The Government’s

information was that Schoenbaum was still

in the hospital but that he was to be

discharged in the near future. The trial

was recessed until Thursday, February 20.

When court reconvened on the

morning of February 20, the attorney for

the Government explained that all that

remained in the presentation of its case

were tape recordings that would be played

to the jury and the rest of the direct

testimony of Schoenbaum.2 The

Government explained, however, that

Schoenbaum would not be able to travel

until the following week. Upon learning

this, counsel for co-defendant MirandaColon, stated: “[Y]our Honor, for the

record . . . we’re going to move for a

 

1

 Two other individuals, Claude Earl

Francis and Daniel Miranda-Colon, were

charged in the same information and

went to trial with the appellants. They

are not parties to the present appeal.

 

2

 The exact nature of these tapes is

unclear from the record. It is clear that

Schoenbaum was heard on at least one

tape, and that the recordings were

lengthy. One of these tapes had been

played to the jury, but 20 had not as of

the time trial was to resume on February

18, 2003. 
3

mistrial.” Miranda-Colon’s counsel

explained that he was concerned about the

lapse of time between the jury hearing the

Government’s direct examination and the

eventual cross- examination o f

Schoenbaum by the defendants. Further,

Miranda-Colon’s attorney was concerned

that, if Schoenbaum were required to use a

wheelchair, the jury would be more

sympathetic to his testimony. Counsel for

the remaining defendants joined in support

of the motion. Counsel for Kelly

commented that he had concerns about two

of his witnesses going on vacation if the

trial were to be postponed. Danielson’s

counsel cited scheduling conflicts if the

trial were to be postponed. Counsel for

Rivera expressed his concern that he

would look like “some kind of animal”

cross-examining Schoenbaum while he

was recuperating. The Government

opposed the defendants’ motion for a

mistrial. The District Court ruled promptly

and summarily: “Very well. Motion for

mistrial is denied.” The District Judge

made no other statements, nor did he

provide the defendants the opportunity to

seek reconsideration of his ruling. The

Court recessed the jury for the day, and

scheduled trial to resume on Monday,

February 24. 

When February 24th arrived, the

attorney for the Government informed the

Court that Schoenbaum had attempted to

board a plane to return to the trial, but was

turned back when narcotic medications

and syringes were found in his luggage.

According to the prosecutor, the airline,

after questioning Schoenbaum as to his

reason for possessing the medication, also

refused to allow him to board the plane

without a doctor’s waiver. Government

counsel noted that Schoenbaum was

scheduled for an appointment with his

doctor at 10:00 A.M. that very day and

advised the Court that “within a few hours

we [will] know whether or not the doctor

will release [Schoenbaum] to get on the

plane.”

The defendants requested that the

Government go forward or that the Court

strike Schoenbaum’s testimony. Rivera’s

attorney informed the Court that he did not

want a mistrial. Counsel for MirandaColon instead suggested that “perhaps

[they] could resume testimony tomorrow.”

The Government pressed the Court for

more time. The following discussion then

ensued:

THE COURT: The fact of the

matter is that in this case there is

inconvenience to everyone, Court,

counsel, the Government. I have

140 people ready to go in another

trial in anticipation of something

like this happening. The big

problem for me in this case is the

way in which the case has

unfolded. That is, with frequent

inte rrupt ion s , numerou s

interruptions, the jurors having to

sit for long periods of time,

sometimes for days, as a matter of

fact. Together with the fact that the

large portion of the testimony was

recorded, and a large portion of it,

recorded testimony, is still to be
4

presented to the jurors. I find that

the nature of the recording

particularly is such that jurors are

not likely to recall properly and fit

into the proper sequence of events

and give proper weight to this

recorded testimony in light of the

continued interruptions and the

long delay. And I [am] dispose[d]

to declaring a mistrial, and will so

declare. I will declare a mistrial.

Gentlemen and ladies, will you

proceed downstairs to Magistrate

Resnick, and he will reschedule the

matter. I will discharge the jury.

[Counsel for Miranda-Colon]: For the

record, Defendant Colon would like to

object and ask for a dismissal.

THE COURT: Denied.

[Counsel for Rivera]: Denied?

[Counsel for Kelly]: I join in that.

THE COURT: Denied.

That same day, February 24, a Magistrate

Judge issued an order re-scheduling trial

for Monday, May 5, 2003. On March 5,

2003, the District Court issued a “notice”

which read: “Defendants moved for a

mistrial on February 24, 2003. At a

hearing held on such motion, for the

reasons stated on the record, the Court

granted Defendants’ motion.” This timely

appeal followed.

II.

We have jurisdiction over the

District Court’s rejection of the

defendants’ motion to dismiss under

Abney v. United States, 431 U.S. 651, 662

(1977). While an order denying a

motion to dismiss an indictment on double

jeopardy grounds “lacks the finality

traditionally considered indispensable to

appellate review,” Abney counsels that

such orders satisfy the collateral order

doctrine articulated in Cohen v. Beneficial

Industries Loan Corp. Id. at 659

(discussing Cohen v. Beneficial Industries

Loan Corp., 337 U.S. 541, 546 (1949)).

Because the District Court denied the

defendants’ motion to dismiss on what

were clearly double jeopardy grounds, the

jurisdictional requisites of § 1291 have

been met. Id. at 662.

III.

The Double Jeopardy Clause

forbids that “any person be subject for the

same offence to be twice put in jeopardy

of life or limb.” U.S. Const. amend. V.

Under that clause, a defendant has a

“valued right to have his trial completed

by a particular tribunal,” Wade v. Hunter,

336 U.S. 684, 689 (1949), which is a right

held by the individual, independent of the

public interest in conducting “fair trials

designed to end in just judgments,”

Arizona v. Washington, 434 U.S. 497, 503

n.11 (1978) (internal quotation and citation

omitted). 

Protections against double jeopardy
5

are ancient3 and we interpret the Double

Jeopardy Clause in light of “its origin and

the line of its growth.” Green v. United

States, 355 U.S. 184, 199 (1957)

(Frankfurter, J., dissenting) (quoting

Gompers v. United States, 233 U.S. 604,

610 (1914)). The Double Jeopardy

Clause’s prohibition of multiple trials

evolved in reaction to “a time when

English judges served the Stuart monarchs

by exercising a power to discharge a jury

whenever it appeared that the Crown’s

evidence would be insufficient to convict.”

Washington, 434 U.S. at 507.4

Accordingly, a defendant may not be

reprosecuted where a first trial has ended

with an improperly declared mistrial.

United States v. Perez, 22 U.S. (9 Wheat)

579 (1824).

A mistrial “may be granted upon

the initiative of either party or upon the

court’s own initiative.” United States v.

Scott, 437 U.S. 82, 92 (1978).5 Ordinarily,

where the defendant seeks a mistrial, “[n]o

interest protected by the Double Jeopardy

Clause is invaded.” Id. at 100. The

Government may, therefore, bring a

subsequent reprosecution without

offending the Constitution. Love v.

Morton, 112 F.3d 131, 133 (3d Cir. 1997). 6

3

 The Greek orator, Demosthenes,

explained that “the laws forbid the same

man to be tried twice on the same issue.”

Whalen v. United States, 445 U.S. 684,

699 (1980) (Rehnquist, J., dissenting)

(citing 1 Demosthenes 589 (J. Vince

trans., 4th ed. 1970)). Roman law

contained similar prohibitions, with the

precept in the Digest of Justinian that

“the governor should not permit the same

person to be again accused of a crime of

which he had been acquitted.” Jay A.

Sigler, Double Jeopardy: The

Development of a Legal and Social

Policy 2 (1969); see also Bartkus v.

Illinois, 359 U.S. 121, 152 n.3 (1959)

(Black, J., dissenting). 

 

4

 Repeated attempts to convict fell out

of favor by the late Seventeenth Century

and the reign of King James II, when

prosecutions which subjected an

individual to double jeopardy began to be

barred. Washington, 434 U.S. at 508

n.23 (citing State v. Garrigues, 2 N.C.

188, 189 (1795)).

 

5

 See Washington, 434 U.S. at 498

(holding that defense counsel’s improper

statements created manifest necessity for

the state trial court to grant the

prosecution’s motion for a mistrial);

United States v. Valadez-Camarena, 163

F.3d 1160, 1163 (10th Cir. 1998) (noting

that reprosecution is usually barred

where the prosecution requested the

mistrial). 

 

6

 We reject the Government’s

contention that the defendants requested

the mistrial at issue here. In its March 5,

2003 “notice,” the District Court did

state that the defendants had moved for a

mistrial and that the motion was granted

at a subsequent hearing. Yet defendants

did not request the mistrial declared on

February 24, which provides the basis for
6

A fundamentally different analysis

applies where a mistrial is sought by the

Government, or, as here, entered by the

Court sua sponte. There is an inherent

danger that the Government will “enter[]

upon the trial of the case without sufficient

evidence to convict” and request a mistrial

simply to marshal a better case. Downum

v. United States, 372 U.S. 734, 737 (1963).

Similarly, the Double Jeopardy Clause

“prevents a prosecutor or judge from

subjecting a defendant to a second

prosecution by discontinuing the trial

when it appears that the jury might not

convict.” Green, 355 U.S. at 188. The

power to declare a mistrial “ought to be

used with the greatest caution, under

urgent circumstances, and for very plain

and obvious causes.” Perez, 22 U.S. (9

Wheat) at 580. Only where the mistrial is

required by “manifest necessity” will

reprosecution be permitted under the

Double Jeopardy Clause. Scott, 437 U.S.

at 92.7

The realities of litigation preclude a

precise definition of “manifest necessity”:

[A] criminal trial is, even in the best

of circumstances, a complicated

affair to manage. The proceedings

are dependent in the first instance on

the most elementary sort of

considerations, e.g., the health of the

various witnesses . . . . And when

one adds the scheduling problems

arising from case overloads, and the

Sixth Amendment’s requirement that

the single trial to which the double

jeopardy provision restricts the

Government be conducted speedily,

it becomes readily apparent that a

mechanical rule prohibiting retrial

whenever circumstances compel the

discharge of a jury without the

the present double jeopardy claims. The

mistrial they had earlier sought was flatly

denied by the District Court on February

20. The record is clear on this, and the

District Court’s statement on March 5,

2003 that the defendants sought the

February 24 mistrial is plainly wrong.

 

7

 See also United States v. Stevens,

177 F.3d 579 (6th Cir. 1999) (reversing

the District Court’s denial of defendant’s

motion to dismiss on double jeopardy

grounds after the Government moved for

a dismissal when its key witness failed to

testify); United States v. Sammaripa, 55

F.3d 433 (9th Cir. 1995) (reprosecution

barred where government moved for a

mistrial, which was subsequently granted

by the district court, on the grounds that

the defendant had improperly exercised

peremptory challenges during jury

selection); United States v. Council, 973

F.2d 251, 256 (4th Cir. 1992) (where the

prosecuton failed to show his request for

mistrial was based upon a manifest

necessity, reprosecution was barred);

United States v. Ruggiero, 846 F.2d 117,

123 (2d Cir. 1988) (“when the

Government moves for a mistrial, it must

show a high degree of necessity, a

‘manifest necessity,’ to avoid a double

jeopardy bar to a subsequent

prosecution”).
7

defendant’s consent would be too

high a price to pay . . . . 

United States v. Jorn, 400 U.S. 470, 479-

80 (1971); see also Illinois v. Somerville,

410 U.S. 458, 463 (“The interests of the

public in seeing that a criminal prosecution

proceed to verdict . . . need not be forsaken

by the formulation or application of rigid

rules that necessarily preclude the

vindication of tha t int e rest.”).

Nevertheless, “trial judges may declare a

mistrialwithout barring reprosecution only

in extraordinary circumstances.” United

States ex rel. Russo v. Superior Court of

N.J., 483 F.2d 7, 13 (3d Cir. 1973). 

The question of whether “manifest

necessity” existed in the case before us is

a mixed question of law and fact over

which we exercise plenary review. Id. at

15 (citing Townsend v. Sain, 372 U.S. 293,

309 n.6 (1963)); United States ex rel.

Thomas v. State of N.J., 472 F.2d 735,

737-38 (3d Cir. 1973). Reprosecution may

be had when the mistrial is necessitated by

the jury’s inability to agree upon a verdict.

Perez, 22 U.S. (9 Wheat) at 580;

Richardson v. United States, 468 U.S. 317,

325 (1984) (“the failure of the jury to

reach a verdict is not an event which

terminates jeopardy”). Further, if a juror

is biased, Simmons v. United States, 142

U.S. 148 (1891), or served on the indicting

grand jury, a trial judge may declare a

mistrial without precluding a second

prosecution, Thompson v. United States,

155 U.S. 271 (1894). Where, as here, the

basis for the District Court’s declaration of

a mistrial is the unavailability of a

prosecution witness, “the strictest scrutiny

is appropriate.” Washington, 434 U.S. at

508; Crawford v. Fenton, 646 F.2d 810,

817 (3d Cir. 1981) (“If, for example, a

mistrial has been granted in order to allow

the state to achieve a tactical advantage,

then the strictest scrutiny is appropriate.”).

Critically, a mistrial must not be

declared without prudent consideration of

reasonable alternatives. Federal Rule of

Criminal Procedure 26.3 requires that,

“[b]efore 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.” The dialogue

fostered by Rule 26.3 ensures that only

those mistrials that are truly necessary are

ultimately granted. Crawford, 646 F.2d at

817-18; United States v. McKoy, 591 F.2d

218, 223 (3d Cir. 1979). The Government

bears the burden of demonstrating that,

“under the circumstances confronting the

trial judge, he had no alternative to the

declaration of a mistrial.” McKoy, 591

F.2d at 222 (citing Jorn, 400 U.S. at 487).

Ultimately, however, the District Court

must exercise prudence and care, giving

due consideration to reasonably available

alternatives to the drastic measure of a

mistrial. Crawford, 646 F.2d at 818-19.

Where a District Court sua sponte declares

a mistrial in haste, without carefully

considering alternatives available to it, it

cannot be said to be acting under a

manifest necessity. Morton, 112 F.3d at

134-35; accord Glover v. McMackin, 950

F.2d 1236 (6th Cir. 1991); Cherry v. Dir.

State Bd. of Corr., 635 F.2d 414 (5th Cir.
8

1981) (en banc); Brady v. Samaha, 667

F.2d 224, 229 (1st Cir. 1981). Any

subsequent reprosecution under those

circumstances is barred by the Double

Jeopardy Clause.

IV.

The record in this case demonstrates

that the District Court failed to consider

both the constitutional implications

attendant to the declaration of a mistrial, as

well as the reasonable alternatives to a

mistrial. Ordinarily, the Government bears

a heavy burden of demonstrating that there

is no alternative but to declare a mistrial.

McKoy, 591 F.2d at 222. Here, however,

the Government opposed the mistrial,

informing the Court that Schoenbaum was

meeting with his doctor to obtain the

necessary release to travel to the Virgin

Islands. Rather than demonstrate manifest

necessity, the Government presented the

Court with a reasonable alternative to a

mistrial, i.e., that the Court wait “a few

hours [to] know whether or not the doctor

will release [Schoenbaum] to get on the

plane.”

The concerns identified by the District

Court do not justify rejection of this

alternative, nor do they amount to manifest

necessity. First, the District Court

expressed concern about the scheduling

difficulties Schoenbaum’s absence created.

The judge explained that the trial had

provided an “inconvenience to everyone,

Court, counsel, the Government.” The

Court further observed that it was

scheduled to begin another trial soon.

Scheduling considerations, however, do

not outweigh the Court’s duty to protect

the defendants’ constitutional right to be

required to stand trial only once and are,

by themselves, insufficient to support the

declaration of a mistrial. Jorn, 400 U.S. at

479-80.

Second, the District Court expressed

concern that the deliberating jurors might

have difficulty piecing together the

evidence following a disjointed trial. Yet

at the time the judge declared the mistrial,

only three calendar days had passed since

the Court had rejected the defendants’ own

request for a mistrial. Further,

Schoenbaum had an appointment with his

doctor at the very moment that the Court

considered declaring a mistrial. The

record provides no basis on which to

conclude that the three prior days had

significantly eroded the jury’s ability to

recall testimony, or that further erosion

would occur in the short time needed to

determine Schoenbaum’s prognosis.

What makes this declaration of a

mistrial particularly troubling is that it was

due to the absence of a prosecution

witness. As the Supreme Court explained

above, the “strictest scrutiny is appropriate

when the basis for the mistrial is the

unavailability of the critical prosecution

evidence.” Washington, 434 U.S. at 508.

This is not to say that the absence of a key

witness can never constitute manifest

necessity. See, e.g., Downum, 372 U.S. at

737 (cautioning that, based on the facts

presented, the absence of a witness could

constitute manifest necessity for a

mistrial). The District Court, however,
9

must take great care to ensure that there

are no available alternatives before

declaring a mistrial in such circumstances.

E.g., United States ex rel. Gibson v.

Ziegele, 479 F.2d 773, 778 (3d Cir. 1973).8

That the Government itself presented the

District Court with a reasonable alternative

to a mistrial places the Government in a

poor position to now argue that the District

Court exercised such care.

The Government’s attempt to analogize

this case to the unforeseeable

circumstances that necessitated a mistrial

in Wade misses the mark. 336 U.S. at 687.

Wade arose out of a court martial initially

convened in Krov, Germany during World

War II. A mistrial was declared after a key

witness became ill at the same time that

the Army unit was forced by the ongoing

conflict to relocate. Id. at 689. The

District Court here was hardly presented

with the prospect of advancing armies or

the invasion of hostile territory. Instead, a

prosecution witness simply broke his leg

while away from the jurisdiction on a long

weekend. Wade is completely inapposite

to the comparatively trivial trial

inconvenience that the District Court

faced.

Instead, the facts of this case are much

closer to those in United States v. Tinney,

473 F.2d 1085 (3d Cir. 1973). Tinney was

not present when the final day of his trial

began, and the judge inquired as to his

whereabouts. Tinney’s lawyer explained

that he had phoned his client’s home and

been assured that the defendant had set out

for court some time before. The trial judge

then stated that “‘if Tinney was not present

in ‘ten minutes, I am going to have the

marshals pick him up. I am going to

revoke his bail and commit him.’” Id. at

1087. The defendant’s counsel objected,

and asked for a short continuance to

determine the whereabouts of his client.

The motion was denied. Approximately

ten minutes after the jury entered the room,

Tinney appeared and explained that his

vehicle had broken down on the drive to

the courthouse. The judge ordered Tinney

taken into custody and declared a mistrial.

Id. This Court was troubled that “the

decision was made without regard to other

reasonable possibilities and without taking

all the circumstances into consideration.”

Id. at 1089. We concluded that the trial

court’s decision to declare a mistrial, after

waiting only ten minutes for the defendant

to arrive, was unjustified and did not

display the care necessary to ensure that

the situation warranted such drastic action.

See also Morton, 112 F.3d at 134-35

 

8

 In Ziegele, a key prosecution witness

was too ill to testify after initially being

present on the first day of a murder trial. 

Id. at 775. The Court declared a recess

for the remainder of the day in order to

ascertain the severity of the witness’s

illness. The next day the Court learned

that the witness would be unable to

testify for several weeks. It was only

after gaining this information and

conducting “considerable discussion”

with the parties that the trial court

declared a mistrial. Ziegele, 479 F.2d at

775-78.
10

(barring reprosecution where the trial

judge declared a mistrial almost

immediately after learning of the death of

his mother-in-law; although this Court

found the trial judge’s distress

understandable, a decision as to the course

of the trial could have been made at a later

date when there had been time for careful

consideration of the appropriate

alternatives).

We therefore conclude that the District

Judge did not exercise “‘sound discretion’

in declaring a mistrial.” Washington, 434

U.S. at 514. Choosing not to await the

final prognosis of Schoenbaum’s ability to

appear and testify, the District Judge

prematurely declared a mistrial without

considering the constitutional import of his

decision. Because the declaration of a

mistrial was not manifestly necessary, any

subsequentreprosecution of the defendants

is barred by the Double Jeopardy Clause.

The District Court’s order denying the

defendants’ motion to dismiss will be

reversed.