United States v. Fred M. Glover, AKA Blackbuster

PER CURIAM:

This appeal came before the motions panel of the court on the Government’s motion for summary affirmance. Defendant-appellant Fred M. Glover was tried by a jury on two drug-related counts and one count of possession of a prohibited weapon. When the members of the jury were unable to agree on a verdict, the trial court, over Glover’s objection, declared a mistrial. Glover claimed that the fifth amendment’s double jeopardy clause barred his subsequent retrial and he filed a motion to prohibit retrial and to dismiss the indictment. The trial court denied Glover’s motion and scheduled the case for retrial; Glover appealed.¹ We concluded that the merits of the appeal were “so clear as to justify expedited action” and to “make summary affirmance proper.” Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980). In order to permit Glover’s retrial to proceed without further delay, we issued an order affirming the district court’s denial of Glover’s motion to prohibit retrial. United States v. Glover, No. 83-2088 (Dec. 16, 1983). We write now to explain that decision.

I.

Fred M. Glover was arrested on March 12, 1983, and was charged by indictment on March 23, 1983, with one count each of possession with intent to distribute cocaine,² possession of cocaine,³ and possession of a prohibited weapon (a blackjack).⁴ Glover entered pleas of not guilty on all counts. At his trial, which began on September 19, 1983, Glover’s defense consisted of a denial of the charges and the assertion of an affirmative defense that the police officers involved in his arrest were trying to frame him with fabricated evidence.

The trial was completed on September 21, 1983, and the jury met for one hour that evening. After it reconvened on the morning of September 22, the jury sent three separate notes to the court, asking various evidentiary questions concerning lighting conditions, the preliminary drug field test, fingerprint examinations, and whether the jury could review portions of the transcript pertaining to the police officers’ seizure of the cocaine. The judge instructed the jury that the transcript was not available, that their recollections of the evidence controlled their deliberations, and that they could consider only evidence properly admitted during the trial. The jury resumed deliberations and, at 3:40 p.m. that afternoon, sent a fourth note to the court, signed by the foreman, stating: “We cannot reach a unanimous decision, so please advise.” In response, the judge read the United States v. Thomas⁵ charge pertaining to deadlocks to the jury and asked it to continue deliberating for another hour before recessing.

After the jury had reconvened on the morning of Friday, September 23, the jury requested the court to reread its instructions on “the definition of evidence, reasonable doubt, common sense, facts and the duties and responsibilities of a juror.” The court reread several instructions to the jury and gave the jury a second Thomas charge. The court denied, however, a request by Glover’s counsel that the jury be read the bracketed material in D.C. Criminal Jury Instructions No. 2.11, Credibility of Witness,⁶ pertaining to inconsistencies or discrepancies in witnesses’ testimony. The jury resumed deliberations and more than three hours later, at 3:02 p.m., it sent the court a note signed by the foreman, stating: “We, the jury, have come to the conclusion that we are irretrievably and irreconcilably deadlocked.” Although Glover's counsel suggested that the jury would resolve its deadlock if the court read the jury Instruction No. 2.11, including the bracketed language, the judge stated his intent to declare a mistrial. The court indicated in its memorandum opinion:

The Court expressed its concern to counsel that the jury had been deliberating a long time considering the drug and weapon charges at issue, that they had noted their inability to reach a unanimous verdict after being read the Thomas charge and, based on its finding that there was no satisfactory alternative, declared its intention to declare a mistrial. When the defendant objected to the declaration of a mistrial and asked the Court to once again instruct the jury to continue deliberating, the Court stated that it was not inclined to do so since an instruction to keep deliberating might pressure them and result in their subsequently finding the defendant guilty.

United States v. Glover, Crim. No. 83-55, slip op. at 2 (D.D.C. Oct. 13, 1983). When the jury was brought back into the courtroom, the court asked the foreman whether the jury was still “irretrievably and irreconcilably deadlocked,” and whether further deliberations would resolve the deadlock. After the foreman stated that further deliberations would not resolve the deadlock, the court declared a mistrial.

On September 27, 1983, Glover filed a motion to prohibit retrial and to dismiss the indictment on double jeopardy grounds. The district court denied the motion and scheduled the case for a second trial to commence on December 19, 1983. Glover appealed the district court’s denial of his motion to prohibit retrial, and the United States filed a motion for summary affirmance.

II.

A party who seeks summary disposition asks this court to dispose of an appeal on the merits, often before the court has had the benefit of full briefing and oral argument. Because of the serious consequences that flow from granting summary disposition, the court imposes on a party who requests summary affirmance or summary reversal a “heavy burden,” United States v. Allen, 408 F.2d 1287, 1288 (D.C. Cir.1969) (per curiam): the movant “must demonstrate that the merits of his claim are so clear as to justify expedited action,” Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980). Before it grants summary disposition of an appeal, the court must conclude that further briefing and argument are not necessary. See Ambach v. Bell, 686 F.2d 974, 979 (D.C.Cir.1982) (per curiam).

The circumstances of this appeal make it especially suited for expedited disposition. Although the district court’s order denying Glover’s motion to prohibit retrial is a “final decision” for purposes of 28 U.S.C. § 1291,⁷ see Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977), it “is obviously not ‘final’ in the sense that it terminates the criminal proceedings in the district court,” id. at 657, 97 S.Ct. at 2039. As long as Glover’s appeal remained pending before this court, his retrial would be delayed, thereby increasing the risks — both to Glover and to the Government — that witnesses’ memories would fade or that witnesses would become otherwise unavailable. This potential for delay was recognized by the Abney Court, which suggested that the “problems of delay can be obviated by rules or policies giving such appeals expedited treatment. It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.” Id. at 662 n. 8, 97 S.Ct. at 2042 n. 8. Similarly, the Court of Appeals for the Ninth Circuit’s recognition of the potential for “Abney appeals” to delay trials prompted that court to hold that the Government establishes irreparable injury for the purpose of invoking the court’s emergency procedures “upon a showing that the trial of criminal cases will be significantly delayed in the absence of such procedures.” United States.v. Miranda Parra, 637 F.2d 610, 613 (9th Cir.1980) (per curiam); cf. United States v. Yellow Freight Systems, Inc., 637 F.2d 1248, 1252 (9th Cir.1980), cert. denied, 454 U.S. 815, 102 S.Ct. 91, 70 L.Ed.2d 84 (1981) (“Because the filing of an appeal allowable under Abney deprives the trial court of jurisdiction to proceed with trial, ... defendants delay their trial when they pursue Abney appeals. So that defendants need not completely forego speedy trial to seek vindication of the rights protected by Abney, we must adopt procedures to dispose of these appeals as quickly as fair consideration permits.”).

Although the need for speedy resolution of this appeal so that Glover’s retrial — if not barred on former jeopardy grounds — may proceed is an important factor in a decision to grant summary affirmance, other factors also make this case an appropriate one for summary disposition. This appeal, which comes before the court on undisputed facts,⁸ presents a single,⁹ uncomplicated legal issue to be decided in an area where the case law is well developed. That issue was well briefed in the parties’ motion papers, and we determined that further briefing and argument “would not significantly aid the Court.” Walker v. Washington, 627 F.2d at 542. Our review of the controlling case law makes it clear that the double jeopardy clause does not bar Glover’s second trial, and we therefore grant the United States’ motion -for summary affirmance. ,

III.

When the trial court declares a mistrial over the defendant’s objection, as the trial court did in this case, the defendant is deprived of his “valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); see United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) — a right that is protected by the fifth amendment’s double jeopardy clause. See, e.g., Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 1073, 35 L.Ed.2d 425 (1973); United States v. Jorn, supra; Wade v. Hunter, supra.

Nevertheless, the defendant’s interest in having his trial completed by a particular tribunal is not absolute: the right “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. at 689, 91 S.Ct. at 837; see also Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978) (defendant’s “valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury”); United States v. Richardson, 702 F.2d 1079, 1085 (D.C.Cir.), cert. granted, — U.S. ——, 104 S.Ct. 231, 78 L.Ed.2d 224 (1983). The standard by which a court’s declaration of mistrial without the defendant’s consent is measured is one of “manifest necessity.”

The “manifest necessity” standard was enunciated in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), in which the defendant claimed that the trial court’s discharge of a hung jury barred his subsequent retrial for the same offense. The Court held that there was no legal bar to retrial of the defendant:

We think that in all cases of this nature, the 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____ But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests ... upon the responsibility of the Judges, under their oaths of office.

Id. at 580. Although the Court has consistently refused to pronounce “bright-line” rules delimiting when the manifest necessity standard has been met,¹⁰ see, e.g., Illinois v. Somerville, 410 U.S. at 462-64, 93 S.Ct. at 1069-70; United States v. Jorn, 400 U.S. at 485-86, 91 S.Ct. at 557-58; since Perez, the hung jury has remained “the prototypical example" of manifest necessity to declare a mistrial. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982); see, e.g., Logan v. United States, 144 U.S. 263, 297-98, 12 S.Ct. 617, 627-28, 36 L.Ed. 429 (1892); Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. at 837. (“There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.”); Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963) (“The classic example [of permissible retrials after a jury has been discharged without reaching a verdict and without the defendant’s consent] is a mistrial because the jury is unable to agree.”); United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17 (1976) (per curiam); Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832 (“[Wjithout exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial.”).

In United States v. Jorn, 400 U.S. at 485, 91 S.Ct. at 557, a plurality of the Court cautioned that, absent a motion by the defendant for a mistrial, “the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option [to have his case go to a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Subsequent cases, however, have emphasized the trial court’s “broad discretion” to declare a mistrial even over a defendant’s objections, see, e.g., Illinois v. Somerville, 410 U.S. at 462, 93 S.Ct. at 1069, especially when the trial judge’s decision is based on a belief that the jury is not able to reach a verdict, see Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832. In Arizona the Supreme Court, while stressing the “heavy burden” placed on the prosecutor to justify a declaration of mistrial over a defendant’s objections, id. at 505, 98 S.Ct. at 830, indicated that in the hung jury situation,

there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not “manifest necessity” justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his “valued right to have his trial completed by a particular tribunal.” But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the “necessity” for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would employ coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments. The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.

Id. at 509-10, 98 S.Ct. at 832 (footnotes omitted).

The reason for the great deference accorded a trial court’s declaration of mistrial in the deadlocked jury situation “is that the trial court is in the best position to assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate.” Id. at 510 n. 28, 98 S.Ct. at 833 n. 28; see also Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523,1526, 6 L.Ed.2d 901 (1961) (“the trial judge ... is, best situated intelligently to make ... a decision [whether] the ends of substantial justice cannot be attained without discontinuing the trial”). This does not mean that the trial judge’s discretion to declare a mistrial is untrammeled or that the decision to declare a mistrial is insulated from review: “If the record reveals that the trial judge has failed to exercise the ‘sound discretion’ entrusted to him, the reason for such deference by an appellate court disappears.” Arizona v. Washington, 434 U.S. at 510 n. 28, 98 S.Ct. at 833 n. 28. In the few cases in which appellate courts have held that a trial court’s declaration of mistrial in the hung jury situation barred retrial of the defendant, the determination appears to have been based on the trial judge’s failure to exercise an informed discretion, rather than his abuse of discretion. See, e.g., United States v. Lansdown, 460 F.2d 164 (4th Cir.1972) (retrial barred where trial judge, acting on his own motion, declared mistrial despite foreman’s statement that jury was “on the verge” of a verdict).¹¹

The trial court’s actions in the instant case are in marked contrast to the type of summary, sua sponte, actions that have been held to bar retrial. The court declared the mistrial only after receiving two notes from the jury stating that it was deadlocked, giving the jury two Thomas charges, and questioning the foreman to ascertain whether further deliberations might result in a unanimous verdict. Cf. United States v. See, 505 F.2d 845, 851 (9th Cir.1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975) (“The ‘crucial factor’ in determining the probability of agreement is a statement from the jury that it is ‘hopelessly deadlocked.’ ”). The court was properly concerned that requiring further deliberations might coerce the jurors into a verdict. See, e.g., Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832; cf. United States v. Lynch, 598 F.2d 132 (D.C.Cir.1978) (per curiam), cert. denied, 440 U.S. 939, 99 S.Ct. 1287, 59 L.Ed.2d 498 (1979) (affirming judge’s declaration of mistrial because presiding judge was ill and no other judge could take case —judge’s concern that jury might be subject to pressure to decide case expeditiously supported declaration of mistrial). We can perceive no basis for concluding that the trial court abused its discretion in determining that it was manifestly necessary that a mistrial be declared.¹² Therefore, we grant the motion for summary affirmance.¹³

Affirmed.

1 . In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court held that defendants may seek immediate appellate review of such pretrial orders rejecting defendants' double jeopardy claims.

2 . 21 U.S.C. § 841(a) (1982).

3 . 21 U.S.C. § 844 (1982). '

4 . D.C.Code § 22-3214(a) (1981).

5 . United. States v. Thomas, 449 F.2d 1177, 1184— 85 n. 46, 1187 (D.C.Cir.1971) (en banc). The Thomas charge instructs deadlocked juries that each member is to consult with other jurors and to be open to reexamination of his or her views, but that jurors should not surrender their honest beliefs solely to return a verdict.

6 . D.C. Criminal Jury Instructions No. 2.11, including the bracketed portion that Glover’s counsel requested, states:

In determining whether the government has established the charge against the defendant beyond a reasonable doubt, you must consider and weigh the testimony of all the witnesses who have appeared before you.

You are the sole judge of the credibility of the witnesses. In other words, you alone are to determine whether to believe any witness and the extent to which any witness should be believed. If there is any conflict in the testimony, it is your function to resolve the conflict and to determine where the truth lies.

In reaching a conclusion as to the credibility of any witness, and in weighing the testimony of any witness, you may consider any matter that may have a bearing on the subject. You may consider the demeanor and the behavior of the witness on the witness stand; the witness’ manner of testifying; whether the witness impresses you as a truthful individual; whether the witness impresses you as having an accurate memory and recollection; whether the witness has any motive for not telling the truth; whether the witness had a full opportunity to observe the matters concerning which he has testified; whether the witness has any interest in the outcome of this case, or friendship or animosity toward other persons concerned with this case.

[Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more persons witnessing an incident or transaction may see or hear it differently; an innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of the discrepancy, always consider whether it pertains to a matter of important or unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.]

You may consider the reasonableness or unreasonableness, the probability or improbability, of the testimony of a witness in determining whether to accept it as true and accurate. You may consider whether he has been contradicted or corroborated by other credible evidence.

If you believe that any witness has shown himself to be biased or prejudiced, for or against either side in this trial, you may consider and determine whether such bias or prejudice has colored the testimony of such witness so as to affect the desire and capability of that witness to tell the truth.

You should give the testimony of each witness such weight as in your judgment it is fairly entitled to receive.

7 . 28 U.S.C. § 1291 gives the United States Courts of Appeals jurisdiction of appeals "from all final decisions of the district courts of the United States, ... except where a direct review may be had in the Supreme Court.”

8 . Glover adopted the statement of facts set forth in the United States’ motion for summary af-firmance.

9 . Appeals from pretrial orders denying motions to bar retrial on former jeopardy grounds are permitted under the "collateral order” exception to the final judgment rule that was first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034,. 52 L.Ed.2d 651 (1977). Defendants appealing such pretrial orders may raise other claims only if they also fall within the Cohen exception. See Abney, 431 U.S. at 663, 97 S.Ct. at 2042.

10 . The dissent cautions that double jeopardy questions must be resolved on a case-by-case approach. We agree, and have decided this case on its facts. That the Supreme Court "abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial,” Illinois v. Somerville, 410 U.S. at 462, 93 S.Ct. at 1069, does not mean that double jeopardy questions can never be disposed of summarily; nor does it mean that this court should ignore previous cases outlining the breadth of a trial judge’s discretion to declare a mistrial in the hung jury situation.

11 . Like Lansdown, other cases cited by Glover in which appellate courts have held a trial judge’s declaration of mistrial erroneous have involved sua sponte action by the trial court. See, e.g., United States v. Gordy, 526 F.2d 631 (5th Cir.1976) (in trial pervaded by hurried atmosphere, 5/4 hours after jury began deliberations on charges of conspiracy to possess and possession of marijuana, trial court sua sponte called jury in and asked foreman whether there was a "hung jury" — foreman gave unanimous not guilty verdict on conspiracy charge and stated at the bench that jury was split 6-6 on possession charge and court declared mistrial); United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034 (3d Cir.1975) (trial court, on its own motion, called jury in after approxi-mateiy 6'A hours of deliberation, asked foreman whether jury could arrive at a unanimous verdict, and declared mistrial when foreman indicated that jurors could not reach unanimous verdict); United States ex rel. Russo v. Superior Court, 483 F.2d 7 (3d Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973) (trial judge, without any warning or consultation with either counsel, called the jury back to the courtroom after they had been deliberating for 15 hours in a murder trial, and asked the foreman whether the jury had arrived at a unanimous verdict — foreman responded that the jury had “not yet” reached a unanimous verdict and the judge declared a mistrial after deciding that the jury was too exhausted to be asked to deliberate longer).

12 . The dissent focuses on the trial court’s decision not to read the jury one paragraph of a seven-paragraph instruction on witness credibility. We believe this is precisely the kind of situation contemplated by the Supreme Court when it observed that the trial court is best situated to determine whether further deliberations will produce a just verdict. See Arizona v. Washington, 434 U.S. at 510 n. 28, 98 S.Ct. at 832 n. 28. It should also be noted that this court has cited with approval the predecessor of the witness credibility instruction. See United States v. Gaither, 440 F.2d 262, 264 & n. 3 (D.C.Cir.1971); United States v. Porter, 429 F.2d 203 n. 1 (D.C.Cir.1970); Stone v. United States, 379 F.2d 146, 147 (D.C.Cir.1967). That predecessor instruction — like the instruction that the trial judge read to the jury in this case — did not contain the paragraph on which the dissent focuses. See Young Lawyers Section of D.C. Bar Ass’n Criminal Jury Instructions, Instruction 2.11 Comment (1978) (“This instruction modified instruction 2.11 in the 1972 edition to add an additional paragraph admonishing the jury concerning the evaluation of inconsistencies and discrepancies in witness testimony.’’).

13 . Although the dissent expresses reservations about the merits of this appeal, the dissent focuses for the most part on the procedures established by this court for the consideration and disposition of motions. These latter concerns are more appropriately addressed to, and considered by, the full court meeting in conference to reexamine its existing procedures.