United States v. Toribio-Lugo

United States Court of Appeals
For the First Circuit
No. 01-2565
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ TORIBIO-LUGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Joannie Plaza-Martinez, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, was on
brief, for appellant.
Irene C. Feldman, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, Jorge E. Vega-Pacheco, Chief,
Criminal Division, and Thomas F. Klumper, Assistant United States
Attorney, were on brief, for appellee.
July 21, 2004
SELYA, Circuit Judge. Four days into a criminal trial,
the district court discovered that a juror had been absent for some
time and, having previously discharged the lone alternate, declared
a mistrial sua sponte. Defendant-appellant José Toribio-Lugo
thereafter moved to dismiss the indictment on double jeopardy
grounds. The district court denied that motion. This appeal
ensued. After careful review, we conclude that the lower court
erred in refusing to dismiss the indictment.
I. BACKGROUND
On June 6, 2001, a federal grand jury indicted the
appellant for various narcotics offenses. See, e.g., 21 U.S.C. §§
841(a)(1), 952(a). The court empaneled a jury of twelve, plus one
alternate. Trial commenced on August 13, 2001. The alternate
juror experienced a personal problem and the judge excused her on
the second day of trial.
At the start of the fourth day, the courtroom deputy
informed the judge that only eleven jurors were present. The judge
immediately consulted with both the prosecutor and the appellant's
lawyers. He outlined two options: either postpone the trial until
the twelfth juror could be located or proceed with a jury of
eleven. See Fed. R. Crim. P. 23(b)(2)(A) (permitting the parties
in a criminal case to stipulate to trial by a jury of fewer than
twelve at any time before the verdict). Defense counsel asked why
the juror was missing and, in virtually the same breath, began to
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express her viewpoint. She stated: "The thing is I'm thinking
about --". That was as far as she got. The district judge
interrupted, declaring: "This is very simple. [The missing
juror's] not here. She's not here. She might be dead. She may
be ill. It doesn't make any difference." Chastened, defense
counsel conferred with her client and informed the judge that the
appellant did not wish to proceed at that moment with eleven
jurors, but, rather, would "like to wait for twelve jurors, a
twelve-member jury." The judge then terminated the sidebar
conference, announcing that the trial would be postponed until the
twelfth juror could be found.
Almost immediately thereafter, the judge learned that the
problem was more complex than he initially had thought. Thus, he
excused the jury and told the attorneys what he had learned: that
the missing juror had been absent during some or all of the earlier
portions of the trial. The judge then announced that he was going
to declare a mistrial because only eleven jurors had heard the
evidence and he did not believe that there was any way to cure that
defect. The prosecutor promptly asked for a new trial date, but
the judge, seemingly anticipating a double jeopardy challenge,
declined the request. Defense counsel tried to articulate her
client's position. She stated: "Our position is that --". The
judge once again cut her off mid-sentence, saying: "Counsel.
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Wait." He then began questioning the courtroom deputy about the
number of jurors originally empaneled.
The shape of the fiasco soon emerged. On the morning of
August 13 (the first day of trial), twelve jurors and one alternate
were sworn. For reasons that remain obscure, one of the empaneled
jurors vanished later that morning. No one — neither the
prosecutor, nor defense counsel, nor the courtroom deputy, nor the
judge — noticed the juror's absence, and the trial proceeded apace.
This state of blissful ignorance still existed when, on the second
trial day, the judge, with the assent of both parties, dismissed
the alternate juror. The upshot was that only twelve jurors had
begun to hear evidence in the case and only eleven of them had been
present from the second day forward.
After recounting this bizarre sequence of events, the
district judge expressed some uncertainty about whether, in the
event of a mistrial, the Double Jeopardy Clause would bar retrial
of the appellant. The judge invited the attorneys to brief the
issue. Defense counsel again endeavored to be heard, but the judge
again thwarted her attempt. He then reconvened the jury and,
acting sua sponte, declared a mistrial.
When thereafter the government moved for a new trial
date, the appellant objected and cross-moved for dismissal of the
indictment on double jeopardy grounds. Briefs were submitted. On
September 24, 2001, the district judge denied the motion to
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dismiss.1 United States v. Toribio-Lugo, 164 F. Supp. 2d 251(D.P.R. 2001). The judge predicated his ruling on two alternative
grounds. First, he concluded that a mistrial was required by
manifest necessity because only eleven jurors remained and the
appellant had refused to proceed with fewer than twelve. Id. at
253-54. Second, he concluded that the appellant had, in all
events, consented to the declaration of a mistrial. Id. at 254-55.
This appeal followed.
II. ANALYSIS
In the ordinary course, a defendant cannot pursue an
immediate appeal from an interlocutory order in a criminal case.
Like virtually every general rule, this rule admits of various
exceptions — and one such exception allows immediate appeals from
denials of motions to dismiss premised on colorable double jeopardy
grounds. See Abney v. United States, 431 U.S. 651, 662 (1977);
United States v. Keene, 287 F.3d 229, 232 (1st Cir. 2002). This
case comes within that exception. We turn, then, to the merits of
the appeal.
A. Background Principles.
The Double Jeopardy Clause ensures that no person shall
"be subject for the same offence to be twice put in jeopardy of
1
On the same date, the district judge rescheduled the trial.
The judge thereafter denied the appellant's motion to stay retrial
pending appeal. The appellant has since been retried, convicted,
and sentenced. He is presently serving that sentence.
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life or limb." U.S. Const. amend. V. In a jury trial, jeopardy
attaches when the jury is sworn. Crist v. Bretz, 437 U.S. 28, 35
(1978). That jeopardy attaches at this early stage, rather than at
final judgment, is a recognition of the defendant's prized right to
have his trial, once under way, completed by a particular trier.
Arizona v. Washington, 434 U.S. 497, 503 (1978).
The prophylaxis of the Double Jeopardy Clause is
threefold. See United States v. Ortiz-Alarcon, 917 F.2d 651, 653
(1st Cir. 1990) (delineating the three main types of protection
conferred). One such protection restrains the government from
using its power and resources to subject a defendant to serial
prosecutions, thus prolonging his ordeal and unfairly enhancing the
prospect of his ultimate conviction. Green v. United States, 355
U.S. 184, 187-88 (1957). Despite its importance, however, the
protection against serial prosecutions is not absolute.
Mistrials exemplify the need for exceptions. When a
mistrial is declared before the jury returns its verdict, jeopardy
may or may not attach. In other words, double jeopardy principles
do not automatically bar reprosecution, Washington, 434 U.S. at
505, and the circumstances of each case must be examined to
determine where that case falls along the double jeopardy
continuum. If, say, the defendant has consented to a mistrial or
manifest necessity has precipitated it, the prosecution ordinarily
may proceed anew. See United States v. Dinitz, 424 U.S. 600, 611-
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12 (1976) (finding no double jeopardy bar where the defendant had
moved for a mistrial); United States v. Perez, 22 U.S. (9 Wheat.)
579, 579-80 (1824) (finding no double jeopardy bar where the
existence of a deadlocked jury made a mistrial manifestly
necessary). These outcomes reflect an understanding that "a
defendant's valued right to have his trial completed by a
particular tribunal must in some instances be subordinated to the
public's interest in fair trials designed to end in just
judgments." Wade v. Hunter, 336 U.S. 684, 689 (1949).
B. Standard of Review.
The baseline standard of review applicable to a denial of
a motion to dismiss on double jeopardy grounds following the
declaration of a mistrial is abuse of discretion. See, e.g.,
Washington, 434 U.S. at 514; Keene, 287 F.3d at 233. In light of
the important constitutional right involved, appellate review must
ensure that the trial court indulged in a "scrupulous exercise of
judicial discretion." United States v. Jorn, 400 U.S. 470, 485
(1971) (plurality op.). This entails accepting the trial court's
factual findings unless they are clearly erroneous. United States
v. Bradshaw, 281 F.3d 278, 291 (1st Cir.), cert. denied, 537 U.S.
1049 (2002). Articulations of law engender de novo review. Keene,
287 F.3d at 233. A mistake of law is, a fortiori, an abuse of
discretion. United States v. Snyder, 136 F.3d 65, 67 (1st Cir.
1998).
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Here, the threshold determination that the appellant
consented to the declaration of a mistrial has both factual and
legal components. Consistent with the paradigm limned above, we
review the district court's factual findings for clear error.
Whether the facts as found add up to consent is a legal
determination that we review de novo. Cf. Ornelas v. United
States, 517 U.S. 690, 696-98 (1996) (applying this multifaceted
standard of review to determinations of probable cause).
C. Manifest Necessity.
Like the district court, we first inquire into the
existence vel non of manifest necessity (after all, if a mistrial
was occasioned by manifest necessity, then the question of consent
becomes immaterial). The Supreme Court initially coined the phrase
"manifest necessity" in the early nineteenth century. In Perez,
Justice Story wrote:
[T]he law has invested Courts of justice with
the authority to discharge a jury from giving
any verdict, whenever, in their opinion,
taking all the circumstances into
consideration, there is a manifest necessity
for the act, or the ends of public justice
would otherwise be defeated. They are to
exercise a sound discretion on the subject;
and it is impossible to define all the
circumstances, which would render it proper to
interfere. To be sure, the power ought to be
used with the greatest caution, under urgent
circumstances, and for very plain and obvious
causes; . . . .
22 U.S. (9 Wheat.) at 580. Attempts to define the term more
precisely — beyond tautological acknowledgments that manifest
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necessity demands a "high degree" of necessity, Washington, 434
U.S. at 506 — have not been helpful. Experience teaches that there
is no mechanical rule for determining whether a mistrial is (or is
not) supported by manifest necessity. Illinois v. Somerville, 410
U.S. 458, 462 (1973). Consequently, "an appellate court's inquiry
inevitably reduces to whether the district judge's declaration of
a mistrial was reasonably necessary under all the circumstances."
Keene, 287 F.3d at 234. Typically, this inquiry is informed by a
triumvirate of interrelated factors: (i) whether alternatives to
a mistrial were explored and exhausted; (ii) whether counsel had an
opportunity to be heard; and (iii) whether the judge's decision was
made after sufficient reflection. See id.; see also United States
v. Simonetti, 998 F.2d 39, 41 (1st Cir. 1993).
In the case at hand, there was a clear alternative to a
mistrial: proceeding with eleven jurors. Although the Criminal
Rules normally require a twelve-member jury in a criminal case, see
Fed. R. Crim. P. 23(b)(1), the parties may by agreement proceed
with fewer than twelve, see Fed. R. Crim. P. 23(b)(2)(A). Thus, it
was within the power of the district court to continue with eleven
jurors as long as the parties consented to doing so.
The district court only tentatively explored — and never
exhausted — that possibility. Instead, the court mistakenly
concluded that the alternative was foreclosed by the appellant's
initial expression of a preference to wait and see if the twelfth
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juror could be found. Toribio-Lugo, 164 F. Supp. 2d at 254. As we
explain below, the record does not support the court's conclusion
that the expression of that preference slammed the door on the
"jury of eleven" alternative.
When the district court discovered that a juror was
missing, it presented the lawyers with two options: either to
postpone the proceedings until the vanished juror could be located
or to proceed with a jury of eleven. As between these two
alternatives, the appellant chose the former. The court never
offered the appellant a choice between proceeding with eleven
jurors or accepting a mistrial. To cinch matters, the court,
during the pertinent time frame, made no effort to ascertain the
appellant's attitude or wishes with regard to the possibility of a
mistrial. In view of these omissions, the record compels a
conclusion that the "jury of eleven" alternative was not adequately
explored.
That conclusion is dispositive on this point. Where
there is a viable alternative to a mistrial and the district court
fails adequately to explore it, a finding of manifest necessity
cannot stand. See, e.g., United States v. Ramirez, 884 F.2d 1524,
1529-30 (1st Cir. 1989); Brady v. Samaha, 667 F.2d 224, 229-30 (1st
Cir. 1981). This is such a case. Accordingly, we reject the lower
court's holding that its declaration of a mistrial was supported by
manifest necessity.
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D. Consent.
In the absence of manifest necessity, double jeopardy
principles require that a defendant retain primary control over
whether or not to abort an ongoing trial. See Dinitz, 424 U.S. at
609. Withal, the protections of the Double Jeopardy Clause are at
most a series of personal defenses, so they may be waived or
vitiated by consent. Id. at 607; United States v. DiPietro, 936
F.2d 6, 9 (1st Cir. 1991). This brings us to the district court's
alternate holding: that the appellant consented to the declaration
of a mistrial.
In this context, consent may be express, such as where
the defendant himself moves for a mistrial without having been
goaded into doing so by misconduct attributable to the government.
E.g., Dinitz, 424 U.S. at 607-12. The requisite consent may also
be implied from a defendant's acts or failures to act, such as
where the defendant sits silently by and does not object to the
declaration of a mistrial even though he has a fair opportunity to
do so. E.g., DiPietro, 936 F.2d at 9-11. Even so, the implication
of consent is not lightly to be indulged. Any such finding must be
consistent with the defendant's valued right to trial before a
particular jury and his concomitant interest in deciding whether to
take the case from that jury.
In this instance, the district court concluded that the
appellant consented to the declaration of a mistrial twice over.
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The court first extrapolated consent from the appellant's refusal
to proceed with eleven jurors. Toribio-Lugo, 164 F. Supp. 2d at
254. For the reasons previously discussed, see supra Part II(C),
we reject this extrapolation. Choosing to await the return of a
missing juror over proceeding with a jury of eleven cannot
reasonably be construed as consent to the declaration of a
mistrial.
There is, however, more to this case. The district court
also held that the appellant impliedly consented to the declaration
of a mistrial by his silence when the court announced its intention
to abort the proceedings. Id. The integrity of this finding
presents a close question: as the district court correctly
observed, defense counsel was present throughout and did not object
to the declaration of a mistrial at any point.
Under most circumstances, such silence might well permit
a finding of implied consent. See, e.g., United States v. Nichols,
977 F.2d 972, 974-75 (5th Cir. 1992) (per curiam); DiPietro, 936
F.2d at 11; Camden v. Circuit Court, 892 F.2d 610, 612-18 (7th Cir.
1989). But this case is different. Implying consent from a
failure to object requires, at a bare minimum, that the defendant
has had an adequate opportunity to register an effective objection.
Compare DiPietro, 936 F.2d at 11 (implying consent where defense
counsel sat in the courtroom for several minutes during the
announcement of a mistrial without objecting), with Love v. Morton,
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112 F.3d 131, 138-39 (3d Cir. 1997) (rejecting a finding of implied
consent where the trial judge, in a state of grief after learning
of a death in his family, abruptly ordered a mistrial and left the
bench). Thus, the question reduces to whether defense counsel had
a fair opportunity to object here.
The district court answered this question in the
affirmative. The court found that defense counsel had several
chances to voice an objection:
For several minutes after the Court announced
its decision to declare a mistrial, both
defense counsel and government counsel
remained in the courtroom. Defense counsel
was present as the Court questioned the
courtroom deputy as to the whereabouts of the
missing juror. Next, defense counsel was
present while the Court expressed its concern
over [the] government's motion to set a new
trial date. Finally, defense counsel was
present as the Court explained the reason for
the mistrial to the jury before discharging
them. At no timefrom [sic] the moment the
Court declared a mistrial to the moment it
discharged the jury did defense counsel object
to the mistrial.
Toribio-Lugo, 164 F. Supp. 2d at 254-55. We accept the court's
factual findings that defense counsel was present at all relevant
times and lodged no formal objection. In the circumstances of this
case, however, those facts tell only a part of the story. And when
the full panoply of facts is taken into account, the district
court's conclusion that counsel had an adequate opportunity to
object becomes insupportable.
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The dynamics of a trial are important to its outcome. To
do her job, a lawyer must be forceful, but she also must handle her
relationship with the presiding judge with care. "Nothing goes
further to disturb the proper atmosphere of a trial than [a
lawyer's] reiterated insistence upon a position which the judge has
once considered and decided." Keen v. Overseas Tankship Corp., 194
F.2d 515, 519 (2d Cir. 1952) (L. Hand, J.). It follows that when
a lawyer repeatedly attempts to state her position but is
repeatedly rebuffed, there will come a point at which further
insistence can have deleterious consequences. A lawyer ought not
to be required to persist stubbornly when the judge has made it
perfectly clear that he does not wish to hear what the lawyer has
to say. Cf. Douglas v. Alabama, 380 U.S. 415, 422 (1965) ("No
legitimate state interest would have been served by requiring
repetition of a patently futile objection, already thrice rejected,
in a situation in which repeated objection might well affront the
court or prejudice the jury beyond repair.").
In this case, defense counsel made either two or three
attempts to be heard during the district court's sua sponte
consideration of whether or not to declare a mistrial.2 On each
occasion, the court stopped counsel in her tracks, cutting her off
2
The parties spar over whether the first attempt was part of
that colloquy. For present purposes, that is a distinction without
a difference. What counts is that the judge set the tone for the
proceedings that followed by interrupting the lawyer in mid-
sentence as she tried to state her client's position.
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once when the court was addressing the issue of whether to wait for
the missing juror and twice more when the court was addressing the
issue of manifest necessity. It was only after these three
attempts to state her position had been firmly rebuffed that
defense counsel lapsed into silence. To hold, under these
circumstances, that the appellant freely, albeit tacitly, consented
to the discharging of the jury would mock reality and at the same
time condone an unfortunate curtness on the part of the district
court. We do not think that consent to a mistrial fairly can be
inferred from enforced silence.
Let us be perfectly clear. We do not mean to say that
being silenced by a judge always correlates with a lack of
opportunity to object. See generally United States v. Mejia, 909
F.2d 242, 248 (7th Cir. 1990) (explaining that counsel "has a duty
to object, and even at the risk of incurring the displeasure of the
trial court, to insist upon his objection") (citations omitted).
Here, however, a confluence of factors, especially the number of
times that defense counsel was stymied and the relatively brief
period of time that elapsed, militates strongly in favor of a
conclusion that consent should not be implied.3
3
In fairness, it seems quite likely that the court was
laboring under the assumption that the appellant's earlier decision
to wait for the missing juror and, concomitantly, to eschew
proceeding with a jury of eleven at that point was an absolute
rejection of the "jury of eleven" alternative. Ordinarily, counsel
would bear some responsibility for clearing up this sort of
confusion — and we might hesitate to find an abuse of discretion
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With all due respect for the good faith of the district
judge (which we do not doubt), we conclude that a fundamental
constitutional right of an accused should not be snatched away in
such uncertain circumstances. Consequently, we hold that the
district court's second basis for its finding of consent is, like
its first, untenable.
That ends the matter. In the absence of either manifest
necessity or binding consent, jeopardy attached. Thus, the
appellant's reprosecution was not constitutionally permissible.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we reverse the order appealed from and remand the case to the
district court with directions to vacate the defendant's
conviction. See supra note 1. The district court should thereupon
dismiss the indictment.
Reversed and remanded.
had the lawyer sat idly by and lackadaisically allowed the court to
proceed under a false assumption. Here, however, defense counsel
thrice attempted to be heard — and on all three occasions the court
cut her off.
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