United States v. Roy Brewley

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-1089
_____________
UNITED STATES OF AMERICA
v.
ROY BREWLEY,
Appellant
______________
On Appeal from the
District Court of the Virgin Islands
No. 3-04-cr-00154-003
District Judge: Honorable James T. Giles
Argued May 3, 2010
Before: SMITH, CHAGARES, and JORDAN, Circuit Judges.
(Filed: June 1, 2010)
_______________
Delia L. Smith, Esq. [ARGUED]
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924
Attorney for Appellee
Leslie L. Payton, Esq. [ARGUED]
P.O. Box 305272
Charlotte Amalie, St. Thomas
USVI, 00803-0000
Attorney for Appellant
OPINION
CHAGARES, Circuit Judge.
Roy Brewley challenges his conviction for conspiracy to possess with intent to
distribute cocaine. After Brewley’s first trial culminated in a mistrial, the Government
retried him and obtained a conviction. Brewley now argues, inter alia, that the Double
Jeopardy Clause barred reprosecution because there was no “manifest necessity” for the
mistrial. We hold, however, that the reprosecution did not violate the Double Jeopardy
Clause. Brewley impliedly consented to the mistrial, and we therefore have no occasion to
examine the manifest need for it. We reject Brewley’s other claims and will affirm the
judgment of conviction.
I.
We write for the parties’ benefit and set forth only those facts necessary to resolve
the appeal. Brewley was employed as a baggage handler at the Cyril E. King Airport in St.
Thomas. In that capacity, he assisted in a smuggling operation designed to import cocaine
into the United States mainland. Brewley and eleven of his cohorts were charged in an
eleven-count superseding indictment on January 13, 2005. Count One alleged a
conspiracy to distribute and/or possess with intent to distribute cocaine, in violation of 21
2
U.S.C. §§ 841(a) and 846. The other ten counts charged substantive counts of possession
(and aiding and abetting such possession) with intent to distribute cocaine, in violation of
21 U.S.C. § 841(a), (b)(1) and 18 U.S.C. § 2. Brewley was named in Counts One and
Eight of the superseding indictment. He and seven of the named defendants pleaded not
guilty and were jointly tried; the other four pleaded guilty and testified at trial.
Trial commenced on November 6, 2006, and the District Court thereafter dismissed
Counts Two, Three, Four, and Five. On December 1, 2006, the jury began its
deliberations on the remaining counts with respect to the substantive crimes and, if
necessary, would consider drug amount separately. On December 5, 2006, the jury sent a
note advising that it had “come to a decision on all verdicts, all defendants, all counts.”
Appendix (“App.”) II.4.1 The District Court questioned the foreperson whether the jury
had “reach[ed] a unanimous decision with respect to all counts and all defendants,” and
the foreperson answered that it had. App. II.5. When asked for the jury’s verdict, the
foreperson announced “guilty” on each count against each defendant. App. II.5-6. The
District Court then conducted a general poll of the jury, and apparently discerned no
dissent. App. II.7. It then recorded the verdict and instructed the jury to continue their
deliberations on drug amount.
Moments later, the District Judge was informed that Juror Six had asked to speak
1
Citations to the Appendix are referenced by the corresponding volume and page
number.
3
with him. An off-the-record discussion then took place. App. II.15. Several moments
later, in open court, the District Court individually polled the jury members. The first
five jurors affirmed that they had voted guilty with respect to all defendants and all
remaining counts. App.II.15-28. Juror Six, however, answered negatively when asked
whether the verdict had been unanimous. She admitted to the District Court that she had
signed the verdict sheet but, when she attempted to explain, the District Court cut her off
and continued its poll of the other jurors. App.II.28-29. Each reaffirmed a guilty vote
for each defendant and each count. App.II.29-39. Without having learned how the
verdict had not been unanimous, the District Court instructed the jury simply to “return
to the jury room and report back to me, whether you have a unanimous decision, or you
do not.” App. II.39.
At that point, counsel for co-defendant Stefon Wilson objected, asserting that the
verdict had not been unanimous and was therefore in violation of Federal Rule of
Criminal Procedure 31. The District Court rebuffed these efforts, reminding counsel that
“the jury has reported in writing a unanimous decision.” App.II.39. After a short break,
the District Court put the following on the record:
This [is] the situation. There was a report of unanimous
decision by the foreperson, guilty as to all counts as to all
defendants charged. There was a general poll of the jury, and
my observation was that no one on the jury said no, and that all
said yes. I molded the verdict based upon the report of the
jurors, guilty as to all defendants as to all counts.
Subsequently, after the charge to the jury with respect to
amount, one of the jurors made it known that the decision was
4
not her individual decision. I’ve concluded that as a matter of
law, the verdict was taken, it was molded, and it was entered[,]
and it stands.
App.II.41. During a continuing debate with counsel over the propriety of the verdict, the
District Court abruptly decided to question Juror Six as to what she would have
answered had it polled her on her individual votes. As the jury was being summoned,
counsel for two of Brewley’s co-defendants stated that they joined in everything that
Wilson’s attorney had said, which included a motion for a mistrial. The District Court
responded, “I assume all defendants join in.” App. II.44. The transcript does not reveal
a response from Brewley’s counsel. Id.The District Court polled Juror Six, who affirmed that she had voted guilty with
respect to each defendant and each count save Brewley, whom she believed was not
guilty. App.II.45-48. Nonetheless, the District Court instructed the jury – over
Brewley’s objection – to continue its deliberations on drug amount as if it had reached a
unanimous verdict as to all defendants, Brewley included. App. II.48.
The next day the District Court instructed the jury to answer a series of
interrogatories regarding drug amount. Consistent with the court’s instruction the day
before, the questions assumed that the jury had reached a unanimous verdict as to all
defendants, including Brewley. The District Court explained that it recognized one juror
had represented Brewley was not guilty, and that depending on the jurors’ answers to the
interrogatories, it would pose separate questions addressing that issue. App.III.13-14.
5
These interrogatories thus appear to have been designed (at least in part) as a proxy for
gauging whether the jury truly had reached a unanimous verdict as to Brewley’s guilt.
The jurors soon returned with answers to the interrogatories. The foreperson
indicated that the jury had not been able unanimously to answer the questions as to
Counts One and Eight, but had been able to do so with respect to the remaining counts.
App. III.19-20. With respect to those remaining counts, the jury unanimously agreed
that the Government had proven beyond a reasonable doubt the amounts charged in the
superseding indictment. The District Court then instructed the jury to continue to
deliberate on the interrogatories with respect to Counts One and Eight, this time with
Brewley’s name removed. App. III.22. Minutes later, the jury returned with responses.
The foreperson indicated that the jury unanimously agreed that the Government had
proven beyond a reasonable doubt the drug amount charged in Counts One and Eight
when Brewley’s name was not considered. App. III.24. The District Court then
individually polled the jurors. App. III.25-35. Each juror – including Juror Six –
affirmed that, having excluded Brewley from consideration, the defendants charged in
Counts One and Eight had conspired to (and did) possess five kilograms or more of
cocaine. Id. The net effect was that Juror Six reaffirmed her belief that Brewley was not
guilty but that the other defendants were guilty of the charged offenses. Thus, with
respect to Brewley’s guilt or innocence, an 11-1 split was apparent.
The District Court then dismissed the jury for a moment to consult with counsel.
6
The following discussion ensued:
The Court: I’ve reconsidered my position as to
Mr. Roy Brewley, and he is
declared not guilty by virtue of the
responses of the jury.
[Defense]: Thank you, Your Honor. Your
Honor, we ask to leave at this
point.
The Court: The reason for this is that the
jurors were not unanimous with
respect to Roy Brewley . . . and
accordingly the charges against
Mr. Brewley are dismissed.
App. III.36-37. The court excused Brewley from the courtroom and he and his lawyer
left immediately. They did not get far. The Government attorney objected to an outright
acquittal, and the court called them back. We quote in full the subsequent discussion:
[Government]: Your Honor, can the government
be heard on the Court’s ruling as
to not guilty regarding Mr. Roy
Brewley?
The Court: Oh, I’m sorry. . . . Yes, you may
be heard. But first, Mr. Brewley
has to return to the Court.
[Government]: Yes, Your Honor.
(Pause)
[Defense]: Judge, you called me?
The Court: Yes, I did. I can’t excuse your
client and you yet. The
7
gov ern m ent is entitled to
argument, and I did not give the
government an opportunity.
[Government]: Your Honor, at best, the
information received from this
panel of jur[ors] is that there were
11 for guilty and . . . one juror for
not guilty. This would constitute a
mistrial as to those two counts
regarding Mr. Roy Brewley, and
not a not-guilty verdict.
The Court: Oh, I’m sorry. Well, you’re right.
[Government]: And – okay. So we would like to
have the opportunity, Your Honor,
to have the issues, those two
counts against Mr. Brewley tried
before . . . a jury that can [reach a
unanimous verdict].
The Court: Okay, okay. . . . Under law, I
can’t dismiss the charges against
your client. I can declare a
mistrial as to your client. And I
declare a mistrial as to your client.
[Defense]: We liked your earlier decision,
Your Honor.
The Court: Pardon?
[Defense]: We liked your earlier decision.
The Court: I’m sorry, sir, but I’m not the
Supreme Court. But mistrial is
declared as to your client, and your
client is subject to trial.
8
[Defense]: Yes, Your Honor. Can we be
excused?
The Court: Yes, sir, you may.
[Defense]: Thank you.
App. III.37.39. The District Court then went on to address other matters with the
remaining defendants for approximately forty-five minutes. App. III.39-71.
Brewley was retried in November 2007 and was convicted of conspiracy, but
acquitted of possession. The District Court sentenced him to 120 months in prison, and
this appeal followed.2
II.
The Double Jeopardy Clause “forbids that ‘any person be subject for the same
offence to be twice put in jeopardy of life or limb.’” United States v. Rivera, 384 F.3d
49, 53 (3d Cir. 2004) (quoting U.S. Const. amend. V). Relevant here, it protects “a
defendant’s valued right to have his trial completed by a particular tribunal.” Wade v.
Hunter, 336 U.S. 684, 689 (1949). But that right “must in some instances be
subordinated to the public’s interest in fair trials designed to end in just judgments.” Id.One such instance is when “manifest necessity” requires that a mistrial be declared
before the verdict is given. “[T]he classic basis for a proper mistrial,” in turn, is a
deadlocked jury. Arizona v. Washington, 434 U.S. 497, 509 (1978); see also United
2
The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. §
1612(a). We have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
9
States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). A trial court has broad discretion to
find that the jury is hopelessly deadlocked, and so long as it properly exercises that
discretion, its consequent determination of manifest necessity generally will not risk
barring reprosecution. See United States v. Wecht, 541 F.3d 493, 504-10 (3d Cir.), cert.
denied, 129 S. Ct. 658 (2008). If the trial court fails to exercise that discretion properly,
our appellate scrutiny tightens. See id.The manifest necessity doctrine only governs, however, if the mistrial is declared
over the defendant’s objection or without his consent. Where the defendant consents to
or requests the mistrial, manifest necessity is not required to enable reprosecution. See
United States v. Dinitz, 424 U.S. 600, 607 (1976); United States v. Tateo, 377 U.S. 463,
467 (1964); Love v. Morton, 112 F.3d 131, 133, 138 (3d Cir. 1997). Such circumstances
evince “a deliberate election on [the defendant’s] part to forgo his valued right to have
his guilt or innocence determined before the first trier of fact.” United States v. Scott,
437 U.S. 82, 93 (1978). Consent need not be express, but may be implied. Love, 112
F.3d at 138-39.
Brewley argues that the District Court abused its discretion when it precipitately
declared the mistrial. The Government, for its part, does not attempt to defend the
mistrial on grounds of manifest necessity. Instead, it argues that Brewley impliedly
consented to the mistrial and that a proper finding of manifest necessity was therefore
10
unnecessary. We agree.3 Accordingly, we address neither manifest necessity nor the
District Court’s procedures in declaring the mistrial.
In Love, we held that a defendant’s failure to object to a court’s mistrial
declaration may constitute implied consent to the mistrial, but that “we will not infer
consent from defense counsel’s silence unless there was some opportunity to object.”
112 F.3d at 138. We made clear that such an opportunity must be “meaningful.” Id.; see
also United States v. Lara-Ramirez, 519 F.3d 76, 83 (1st Cir. 2008) (“Consent may
sometimes ‘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.” (quoting United States v. Toribio-Lugo, 376 F.3d 33,
40 (1st Cir. 2004))). Moreover, because “close cases regarding the propriety of a
mistrial ‘should be resolved in favor of the liberty of a citizen,’” Love, 112 F.3d at 138(quoting United States ex. rel. Russo v. Superior Court of N.J., Law Div., 483 F.2d 7, 17
(3d Cir. 1973)), we explained that “we must proceed with caution in inferring consent
from counsel’s failure to object.” Id.We concluded for four reasons that the defendant in Love did not have a
meaningful opportunity to object, and that his failure to do so therefore did not constitute
implied consent: (1) “the judge made no inquiry of counsel regarding the propriety of a
3
Our review of implied consent is plenary. See United States v. Lara-Ramirez,
519 F.3d 76, 83 (1st Cir. 2008) (citation omitted).
11
mistrial”; (2) “the judge returned to the courtroom to declare a mistrial only five or ten
minutes after informing counsel of his intent to do so”; (3) “when the judge declared the
mistrial and dismissed the jury, he immediately returned to his chambers and quickly left
the courthouse,” precluding “a reasonable opportunity to raise an objection”; and (4) the
“emotionally charged” atmosphere in those circumstances made objecting a difficult
proposition. Id.Several considerations lead us to distinguish this case from Love and conclude
that Brewley had a meaningful opportunity to object.4 First, when the District Court
declared a mistrial and informed Brewley’s attorney that his client would be subject to
retrial, rather than objecting, counsel explicitly acquiesced, stating, “Yes, Your Honor.”
App. III.39. See Camden v. Circuit Court of Second Judicial Circuit, 892 F.2d 610, 615
(7th Cir. 1989) (“While the trial court’s contemplation of a new trial is not conclusive on
the issue of double jeopardy, the court’s comments about a mistrial and reference to a
second trial should have prompted defense counsel to object if he did not agree with the
need for a mistrial or the propriety of a retrial.”) (citation omitted). Moreover, counsel
was plainly aware of the implications a mistrial would have as opposed to an acquittal;
this is evidenced by his statement to the court that he “liked” the initial acquittal ruling
4
We reject the Government’s argument that Brewley affirmatively joined in
Wilson’s mistrial motion when the District Court stated that it “assume[d] all defendants
join[ed.]” App. II.44. The transcript does not reveal a response from Brewley or his
counsel to the District Court’s “assumption,” and we will not infer one.
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“better.” 5
Second, the record demonstrates that Brewley and his attorney were all too
anxious to vacate the courtroom the moment the first opportunity arose. It took but
seconds for them to request to leave when the District Court erroneously pronounced
Brewley not guilty.6 The transcript reveals an equal, if not greater, eagerness to leave
when the court informed them that a mistrial would be declared instead; indeed, counsel
instantaneously queried: “Can we be excused?” The Court of Appeals for the Fifth
Circuit has addressed a similar scenario:
[T]he trial court declared a mistrial as to Palmer on August 21,
1995. At that time, Palmer’s counsel made no objections to the
declaration of mistrial. Rather, her counsel’s only statement
before the court was a request to be excused from the
proceedings. After the trial court granted that request, Palmer’s
counsel left the courtroom. Not until November 30, 1995, long
after the first trial had concluded and just before her second
trial, did Palmer object to the mistrial that had been declared on
August 21. This fails to qualify as the “timely objection”
required by our Circuit.
5
We reject any notion that this statement constituted an objection. See United
States v. Palmer, 122 F.3d 215, 219 (5th Cir. 1997) (“Our precedents require that criminal
defendants make timely, explicit objections to a sua sponte declaration of a mistrial, lest
they be held to have impliedly consented to it.”). Counsel’s jocular comment clearly was
one of acquiescence rather than protest.
6
The District Court’s initial pronouncement from the bench that Brewley was not
guilty did not trigger the Double Jeopardy Clause’s protection. “An oral grant of a
motion for acquittal is no more than an interlocutory order, which the court has inherent
power to reconsider and modify . . . prior to the entry of judgment.” United States v.
Washington, 48 F.3d 73, 79 (2d Cir. 1995) (citation and quotation marks omitted). The
District Court here did not enter a judgment of acquittal, but instead immediately
corrected itself when the Government pointed out the oversight.
13
United States v. Palmer, 122 F.3d 215, 218-19 (5th Cir. 1997).
Third, whereas in Love the trial judge immediately left the bench (precluding an
opportunity for reflection and objection), the District Judge in this case continued to
address other matters with the remaining defendants for forty-five more minutes. Had he
wanted to, Brewley’s counsel could easily have stayed in court to lodge an objection, or
even returned to do so after “thoughtful and reflective decision-making.” Love, 112
F.2d at 138-39. Counsel did not avail himself of that very real opportunity.
Fourth, unlike Love, the circumstances here did not make objection awkward or
difficult. The mistrial ruling occurred outside the jury’s presence, and no unusual
circumstances existed to prevent counsel from objecting. To the contrary, the record
refutes any claim that the defense attorneys were reluctant at that time (or any other) to
object to the District Court’s rulings.
Fifth, given the obvious direction that the proceedings had taken – with an 11-1
jury split apparent, and several other defendants having already moved for a mistrial – it
is not unreasonable to require counsel to have anticipated a mistrial declaration and to
have been prepared to give a response. See United States v. Nichols, 977 F.2d 972,
974-75 (5th Cir. 1992) (per curiam) (stating that the record belied defendant’s claim that
a mistrial ruling came as a “total surprise,” and finding the failure to object to be implied
consent); Camden, 892 F.2d at 618 (finding implied consent where defendant did not
object to mistrial because “[d]efense counsel should have anticipated the possibility of a
14
mistrial and been prepared to object or suggest more acceptable alternatives when the
trial judge announced his ruling”).
Finally, we cannot ignore the circumstances under which the mistrial ruling was
made, and the strategic options available to Brewley at that time. Having learned that
eleven out of twelve jurors believed his client guilty, it is unsurprising that counsel did
not insist that deliberations continue. While Brewley of course had the prerogative to
insist on “his valued right to have his guilt or innocence determined before the first trier
of fact,” Scott, 437 U.S. at 93, the failure to object to the mistrial suggests that counsel
took into account the possibly dire consequences that invocation of that right might have
induced.
We recognize that the District Court did not consult with (or even alert) defense
counsel before abruptly declaring the mistrial. Cf. Love, 112 F.2d at 138. Nevertheless,
we conclude under the circumstances that Brewley had a meaningful opportunity to
register his objection to the mistrial after the court declared it, and that his failure to do
so resulted in his implied consent to it. Accordingly, the Double Jeopardy Clause did not
bar reprosecution.
III.
Brewley asserts three other claims 7 : (1) that the District Court improperly failed
7
In his statement of issues presented, Brewley also lists a fourth claim that the
prosecutor’s improper statements during summation warrant a new trial. Brewley Br. at
7. Besides mentioning it in passing in his Summary of the Argument, see id. at 12, he
15
to poll the jury after the verdict; (2) that the second trial violated his rights under the
Speedy Trial Act; and (3) that a defect in the verdict sheet warrants reversal. A thorough
review of the record convinces us that these claims are entirely without merit, and we
reject them without further discussion.
IV.
For the foregoing reasons, we will affirm the judgment of conviction.
does not argue the point in his brief, and it is therefore waived. See United States v.
Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“[F]ailure to . . . argue an issue in [the]
opening brief constitutes waiver of that issue on appeal.”) (citation omitted).
16