United States Court of Appeals For the First Circuit
No. 25-1257
KAREN READ,
Petitioner, Appellant,
v.
NORFOLK COUNTY SUPERIOR COURT; ANDREA J. CAMPBELL, Massachusetts Attorney General,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Gelpí, Montecalvo, and Aframe, Circuit Judges.
Martin G. Weinberg and Michael Pabian on brief for appellant.
Caleb J. Schillinger, Special Assistant Attorney General, Assistant Norfolk District Attorney, and Andrea Joy Campbell, Attorney General of Massachusetts, on brief for appellees.
March 27, 2025 MONTECALVO, Circuit Judge. On April 16, 2024, Karen
Read's trial began in Norfolk County Superior Court in
Massachusetts on charges of murder in the second degree, Mass.
Gen. Laws ch. 265, § 1 (Count One); manslaughter while operating
under the influence of alcohol, Mass. Gen. Laws ch. 265, § 13 1/2
(Count Two); and leaving the scene of personal injury resulting in
death, Mass. Gen. Laws ch. 90, § 24(2)(a 1/2)(2) (Count Three).
After thirty-seven days of trial, the charges were submitted to
the jury for deliberation. During approximately twenty-eight
hours of deliberations, the jury sent three notes to the trial
judge, informing the court that the jury was increasingly
deadlocked. On July 1, 2024, after receiving the third note, the
trial judge declared a mistrial. A retrial is scheduled to start
on April 1, 2025.
After the mistrial, Read moved to dismiss Counts One and
Three on the basis that the Double Jeopardy Clause barred retrial.
The trial judge denied that motion, and the Massachusetts Supreme
Judicial Court (SJC) affirmed.1 Read then filed a habeas petition
1 Read filed her petition to the SJC under chapter 211, section 3 of the Massachusetts General Laws, which confers upon the SJC a "general superintendence" power that permits, among other things, review of "interlocutory matters in criminal cases only when substantial claims of irremediable error are presented . . . and only in exceptional circumstances, . . . where it becomes necessary to protect substantive rights." Garcia v. Commonwealth, 158 N.E.3d 452, 458 (Mass. 2020) (alterations in original) (citations omitted).
- 2 - in federal court under 28 U.S.C. § 2241 to prevent the state court
from retrying her on those counts, arguing that a retrial would
violate her constitutional double jeopardy rights. The United
States District Court for the District of Massachusetts denied her
habeas petition, and Read now appeals that decision. For the
reasons that follow, we affirm.
I. Background
We focus here only on those facts relevant to the issues
before us.
Following the close of evidence, the trial court
instructed the jury to consider each of the three charges against
Read listed above as well as two lesser offenses that were included
in Count Two: involuntary manslaughter and motor vehicle homicide.
The jury began its deliberations on Tuesday, June 25,
2024, the thirty-seventh day of trial. Three days later, on
Friday, June 28, the jury sent a note to the trial judge stating
that they were "unable to reach a unanimous verdict."2 The court
discussed with the parties how to respond. Read's counsel argued
that the court should give what is called a Tuey-Rodriquez
instruction under Massachusetts law -- a standard instruction
encouraging the jury to reach agreement by seriously considering
The first note reads: "I am writing to inform you, on behalf 2
of the jury, that despite our exhaustive review of the evidence and our diligent consideration of all disputed evidence, we have been unable to reach a unanimous verdict."
- 3 - other jurors' points of view. Commonwealth v. Rodriquez, 300
N.E.2d 192, 202-03 (Mass. 1973). The Commonwealth disagreed,
arguing that it was too soon to give such an instruction. The
court agreed with the Commonwealth, finding that there had not yet
been sufficient time for "due and thorough deliberations." The
court directed the jury to continue deliberating.
In the late morning of Monday, July 1, the jury sent a
second note to the judge, explaining that they were "commit[ted]
to the duty entrusted to [them]" but were "deeply divided by
fundamental differences" and had reached "a point where consensus
[was] unattainable."3 The court again discussed the jury note and
potential responses with the parties. As they had previously,
Read's counsel argued that the court should give the Tuey-Rodriquez
instruction, and the Commonwealth argued that it was still too
soon. This time, however, the court agreed with Read's counsel
3 The second note reads: Despite our commitment to the duty entrusted to us, we find ourselves deeply divided by fundamental differences in our opinions and state of mind. The divergence in our views are [sic] not rooted in a lack of understanding or effort, but deeply held convictions that each of us carry ultimately leading to a point where consensus is unattainable. We recognize the weight of this admission and the implications it holds.
- 4 - and gave the instruction before directing the jury to continue
deliberating.4
Later that day, the jury sent a third note, stating that
they "continue[d] to find [them]selves at an impasse" despite
"rigorous efforts" and that "continu[ing] to deliberate would be
futile."5 Upon receiving the note, the court told the parties that
4 Inthe Tuey-Rodriquez instruction, the court reminded jurors of their "duty to decide this case if [they] can do so conscientiously" and stated, in part: Where there is disagreement, those jurors who would find the defendant not guilty should consider whether the doubt in their own minds is a reasonable one if it makes no impression upon the minds of the other jurors . . . . At the same time, those jurors who would find the defendant guilty ought seriously to ask themselves whether they may not reasonably doubt the correctness of their judgment if it is not shared by other members of the jury. 5 The third note reads: Despite our rigorous efforts, we continue to find ourselves at an impasse. Our perspectives on the evidence are starkly divided. Some members of the jury firmly believe that the evidence surpasses the burden of proof[,] establishing the elements of the charges beyond a reasonable doubt. Convers[e]ly, others find the evidence fails to meet this standard[] and does not sufficiently establish the necessary elements of the charges. The deep division is not due to a lack of effort or diligence, but rather a sincere adherence to our individual principles and moral convictions. To continue to deliberate would be futile and only serve to force us to compromise these deeply held beliefs.
- 5 - "the jury is at an impasse," and then called the jury back into
the courtroom. The judge read the note out loud and immediately
declared a mistrial, dismissing the jury. Unlike with the prior
two jury notes, the judge did not first read the note to counsel
or ask them for input.
Read's counsel report that shortly after trial
concluded, they were contacted by several people. First, a juror
told one of Read's attorneys that the jury had unanimously agreed
that Read was not guilty of Counts One and Three. A second juror
called another of Read's attorneys and relayed the same
information. Then a third party reported to Read's counsel that
a third juror had told a mutual friend that there was "no
consideration for [second-degree] murder" -- Count One -- and that
the jury was deadlocked on the manslaughter charge -- Count Two.
After Read filed a motion to dismiss based on these
reports, a fourth juror contacted her counsel to express their
view "that it was very troubling that the entire case ended without
the jury being asked about each count, especially Count [One] and
Count [Three]." That juror added that "the jury actually discussed
telling the judge that they had agreed unanimously on NOT GUILTY
verdicts for Counts [One] and [Three], but they were not sure if
they were allowed to say so." Finally, a fifth juror contacted
Read's counsel and informed them that the jury was "unanimous"
that Read was not guilty on Counts One and Three and was
- 6 - "deadlocked" only "in relation to the 'lower charges' on Count
[Two]."
The Commonwealth likewise received communications from
individuals identifying themselves as jurors after Read filed her
motion to dismiss. One left a voicemail stating, "it is true what
has come out recently about the jury being unanimous on [Counts
One and Three]." Three individuals sent emails to the
Commonwealth, expressing that they wished to speak anonymously.
They later declined to communicate further once the Commonwealth
informed them that it could not promise confidentiality.
The trial court denied Read's motion to dismiss, holding
that double jeopardy did not bar Read's retrial on Counts One and
Three and that conducting a post-trial inquiry with the jurors
would impermissibly delve into the substance of jury
deliberations. Read appealed but the SJC affirmed, holding that
the trial court had acted within its discretion in declaring a
mistrial and that no acquittal had occurred because the jury had
not publicly affirmed that Read was not guilty of the charges.
Read v. Commonwealth, 250 N.E.3d 551, 559, 565-66 (Mass. 2025).
Read then petitioned for habeas relief before the district court,
which also rejected her arguments that double jeopardy should
preclude her retrial and declined to order or conduct a post-trial
hearing. Read v. Norfolk Cnty. Super. Ct., No. 25-cv-10399, 2025
- 7 - WL 815048, at *1, 15 (D. Mass. Mar. 13, 2025). We now consider
her arguments to this court.
II. Standard of Review and Legal Issues
A federal court may grant a writ of habeas corpus to a
person who is "in custody" in violation of the Constitution or
federal laws. 28 U.S.C. § 2241(a), (c)(3); see also Justs. of
Bos. Mun. Ct. v. Lydon, 466 U.S. 294, 300-01 (1984) (holding that
a person on pretrial release is considered to be "in custody" for
the purposes of habeas relief). "[W]e, as a federal habeas court
reviewing a petition under section 2241, must defer to the SJC's
findings of fact but must undertake plenary review of that court's
resolution of issues of law." Marshall v. Bristol Super. Ct., 753
F.3d 10, 16 (1st Cir. 2014) (alteration in original) (quoting
Gonzalez v. Justs. of Mun. Ct. of Bos., 382 F.3d 1, 7 (1st Cir.
2004), judgment vacated on other grounds, 544 U.S. 918 (2005), and
reinstated, 420 F.3d 5 (1st Cir. 2005)). "We review a district
court's disposition of a section 2241 petition de novo." Id.
The issues before us all stem from Read's claim that the
Constitution's Double Jeopardy Clause bars her retrial for Counts
One and Three. The Double Jeopardy Clause provides that "[n]o
person shall . . . be subject for the same offence to be twice put
in jeopardy of life or limb." U.S. Const. amend. V; see also
Benton v. Maryland, 395 U.S. 784, 794 (1969) (applying the Double
Jeopardy Clause to the States through the Fourteenth Amendment).
- 8 - To succeed on a double jeopardy challenge, the defendant must show
that (1) jeopardy attached in the original state court proceeding
and (2) "the state court terminated jeopardy in a way that prevents
reprosecution." Gonzalez, 382 F.3d at 8.
In this case, there is no dispute that jeopardy attached
when the jury was empaneled and sworn. See Martinez v. Illinois,
572 U.S. 833, 839 (2014) (per curiam). Rather, the question is
whether the court terminated jeopardy (i.e., whether the trial
ended) in a way that prevents a second trial. Read offers two
alternative arguments: first, that the court erred because there
was no "manifest necessity" to declare a mistrial on two counts
and, second, that the jury effectively acquitted her on those two
counts.
III. Discussion
A. Manifest Necessity
We begin by summarizing the legal principles relevant to
Read's "manifest necessity" claim. Under our constitutional
framework, a defendant generally may not be retried for a charge
if, after trial begins, the court discharges the jury without the
defendant's consent. United States v. Ramirez, 884 F.2d 1524,
1528 (1st Cir. 1989). This stems from a defendant's "valued right
to have [her] trial completed by a particular tribunal." Id.
(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). But this right
"is not absolute; it is subject to the rule of 'manifest
- 9 - necessity.'" Id. (quoting United States v. Perez, 22 U.S. 579,
580 (1824)).
Under the doctrine of manifest necessity, trial judges
may not foreclose the defendant's right to have that particular
jury reach a verdict "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." Id.
(quoting United States v. Jorn, 400 U.S. 470, 485 (1971)). The
Supreme Court has defined "manifest necessity" as meaning a "high
degree" of necessity. Renico v. Lett, 559 U.S. 766, 774 (2010)
(quoting Arizona v. Washington, 434 U.S. 497, 506 (1978)). A
deadlocked jury is the "classic example" of a situation where
declaring a mistrial is manifestly necessary. Id. (quoting Downum
v. United States, 372 U.S. 734, 736 (1963)). The government may
then retry the defendant for the charge, or charges, on which the
jury deadlocked. Id.
Relatedly, while a trial court's decision to declare a
mistrial based on "manifest necessity" is "accorded great
deference," that deference does not "end the inquiry" and can be
overcome. Washington, 434 U.S. at 510, 514. Because the decision
affects a defendant's constitutionally protected interest "to
conclude [her] confrontation with society through the verdict of
a tribunal [she] might believe to be favorably disposed to [her]
fate," id. at 514 (quoting Jorn, 400 U.S. at 486), "reviewing
- 10 - courts have an obligation to satisfy themselves that . . . the
trial judge exercised 'sound discretion' in declaring a mistrial,"
id. For example, a trial court has not exercised "sound
discretion" if it "acts irrationally or irresponsibly," id., or
"for reasons completely unrelated to the trial problem which
purports to be the basis for the mistrial ruling," id. at 510 n.28.
Read argues that the trial judge made a "precipitous
decision" in declaring a mistrial, emphasizing that only two
minutes passed between the trial court announcing that it had
received a third jury note -- by stating, "the jury is at an
impasse" -- and discharging the jury. Read also argues that the
record suggests that the court did not consider alternatives to
declaring a mistrial or even discuss the possibility of a mistrial
with the parties.
In response, the Commonwealth counsels that we take a
broader view of the relevant timeline. It argues that the trial
court took careful steps throughout deliberations in responding to
the jury's notes and only declared a mistrial when it was clear,
after the third such note, that the jury was truly deadlocked.
The Commonwealth further argues that federal courts have never
required a trial court to take any particular steps when confronted
with a deadlocked jury and that the judge exercised sound
discretion under these circumstances. In addition, the
Commonwealth argues that, contrary to Read's suggestion, the trial
- 11 - judge was not required to ask the jury about a partial verdict or
poll individual jurors, as doing so may have improperly risked
coercing a verdict.
In determining whether the declaration of a mistrial
reflected a trial judge's sound discretion and was "reasonably
necessary under all the circumstances," we consider "whether the
district court explored other options, gave counsel the
opportunity to object, and acted 'after sufficient reflection.'"
United States v. Candelario-Santana, 977 F.3d 146, 158 (1st Cir.
2020) (quoting United States v. Toribio-Lugo, 376 F.3d 33, 39 (1st
Cir. 2004)); see also Brady v. Samaha, 667 F.2d 224, 229 (1st Cir.
1981) (stating that whether the "record indicates [the judge] has
considered alternatives to a mistrial is significant," as is
"affording counsel an opportunity to be heard on the subject").
Among other factors, the amount of time that the judge takes with
the mistrial decision is relevant: "A precipitate decision,
reflected by a rapid sequence of events culminating in a
declaration of mistrial, would tend to indicate insufficient
concern for the defendant's constitutional protection." Brady,
667 F.2d at 229. But there is no "mechanical rule" or set of
"specific steps" that a trial court must follow before declaring
a mistrial due to deadlock. Candelario-Santana, 977 F.3d at 158.
Rather, the court must only take "some step" to ensure the jury is
actually deadlocked. Id.
- 12 - We agree with the Commonwealth and the district court
that we must consider the trial court's actions throughout jury
deliberations and not limit our review solely to the court's
response to the third jury note. See Read, 2025 WL 815048, at *8.
Thus, we return to the judge's actions during that period.
Recall that the trial judge received the first jury note
about its difficulty in reaching a unanimous verdict after the
jury had been deliberating for around nineteen hours. See id. at
*1. Upon receiving the note, the trial judge shared it with
counsel and heard their arguments on how to respond. As discussed,
Read's counsel urged the judge to give a Tuey-Rodriquez
instruction, arguing that the jurors had "exhausted all manner of
compromise" and were "at an impasse." In other words, Read's
counsel encouraged the court to find that the jury had failed to
reach a unanimous verdict following "due and thorough"
deliberations. See Commonwealth v. Jenkins, 625 N.E.2d 1344, 1345
(Mass. 1994) (holding that "the giving of a [Tuey-Rodriquez]
charge" generally reflects a conclusion by the court that "the
jury's deliberations were 'due and thorough'" within the meaning
of then-applicable Mass. Gen. Laws ch. 234, § 34). This is
particularly relevant because, under Massachusetts law, once a
"jury, after due and thorough deliberation, returns to court
without having agreed on a verdict" and is sent back out for
further deliberation, but then returns to once again report a
- 13 - deadlock, the court cannot require them to continue deliberating
unless the jury consents. Mass. Gen. Laws ch. 234A, § 68C.
However, after the first note, the court declined to give the
instruction and sent the jury back to keep deliberating because it
concluded that there had not yet been sufficient time for the jury
to have engaged in "due and thorough deliberations."
After the second jury note, Read's counsel pressed a
second time for the Tuey-Rodriquez instruction, arguing that the
jury was "hopelessly deadlocked." The Commonwealth again argued
it was premature, but the judge found that enough time had elapsed
to conclude that the jury's deliberations were "due and thorough,"
and thus proceeded to give the instruction. It was only after the
jury's third report of deadlock, when the court was statutorily
precluded from ordering the jury to continue deliberations without
their consent, that the trial court declared a mistrial. Mass.
Gen. Laws ch. 234A, § 68C; Read, 250 N.E.3d at 560.
Considering the court's actions throughout jury
deliberations, we find that the record, read as a whole, reflects
only that the court acted diligently to avoid a mistrial. After
the first note, and after consulting with the parties, it declined
to give the Tuey-Rodriquez instruction and sent the jury back to
deliberate. After the second note, the judge again consulted with
counsel before concluding that the jury had engaged in "due and
thorough deliberations" such that it was appropriate to give the
- 14 - instruction. The court then received a note in which the jury
made clear not only that unanimity remained unobtainable, but also
implied that the jury would not consent to further deliberations
because such deliberations "would be futile" and "only serve to
force [the jurors] to compromise [their] deeply held beliefs."
Without that consent, the court would have been bound by
statute -- the constitutionality of which Read does not
challenge -- from compelling the jury to continue deliberating.
Mass. Gen. Laws ch. 234A, § 68C. While we agree there is force to
the SJC's view that "the more prudent course" may have been to
read the third note to counsel and allow them to weigh in, as the
judge had done upon receiving the prior two notes, the court's
decision not to do so with the third note was within its
discretion, particularly when faced with the circumstances
described above. Read, 250 N.E.3d at 563.
Read further argues, with the benefit of hindsight and
the post-trial statements from some jurors, that the trial court
should have considered, as an alternative to declaring a mistrial,
asking the jury to specify on which charges it faced deadlock or
if its final note related to some or all of the charges. But our
point of reference is the court's knowledge at the time it declared
the mistrial. See Washington, 434 U.S. at 506 (A reviewing court
must consider "the particular problem confronting the trial
judge."); see also United States v. Elliot, 463 F.3d 858, 864 (9th
- 15 - Cir. 2006) ("A reviewing court must determine whether such a
manifest necessity existed at the time a mistrial was declared by
the district court."); United States v. Cameron, 953 F.2d 240, 244
(6th Cir. 1992) (same). We cannot say that a "clear alternative,"
Toribio-Lugo, 376 F.3d at 39, was available to the court at the
time of its decision, for the following reasons.
At that time, the only juror statements that the court
had were the jury notes in front of it. The notes stated that the
jury was "unable to reach a unanimous verdict" (first note); that
the jury was "deeply divided by fundamental differences in [their]
opinions and state of mind" and that "consensus [was] unattainable"
(second note); and that the jurors' perspectives were "starkly
divided," with some believing the evidence "establish[ed] the
elements of the charges beyond a reasonable doubt" and others
finding the evidence "[did] not sufficiently establish the
necessary elements of the charges" (third note). (Emphases added).
The emphasized portions were the only time that the charges were
mentioned, and the jury notes contained no indication that the
jury might have reached unanimous agreement on any individual
count.
Read now argues that the court should have considered
that "charges" might refer only to the lesser-included offenses
embedded within Count Two, and, accordingly, the court should have
inquired into the possibility of a partial verdict pursuant to
- 16 - Massachusetts Rule of Criminal Procedure 27(b). Mass. R. Crim. P.
27(b) (providing that the court "may first require the jury to
return verdicts on . . . charges upon which the jury can agree"
before "declar[ing] a mistrial as to any charges upon which the
jury cannot agree"). But the interpretation of the notes that
Read now advances only seems plausible in light of the post-trial
statements that did not exist and were therefore unavailable to
the court when it had to make its decision. On their face, the
notes appear to make a series of definite assertions that the jury
could not reach any unanimous verdict. Thus, while it would have
been within the court's discretion under Massachusetts Rule of
Criminal Procedure 27(b) to inquire into the existence of a partial
verdict, there was no apparent need to do so here. Nor was this
alternative proposed by Read's counsel during the two
opportunities counsel was given to consult with the court regarding
the jury's reported deadlock or upon learning that the jury had
returned to report an impasse for the third time.6 It follows that
at the time of the court's decision, considering the information
the court had before it, there was no readily apparent alternative
to declaring a mistrial. For these reasons, we are satisfied that
6 We note that there is nothing in the third note that changes the calculus. Indeed, the third note -- which says that the jury remained divided on the "charges" -- is the note that is most facially inconsistent with the possibility of there being a partial verdict.
- 17 - the trial court exercised "sound discretion" in declaring a
mistrial.7 See Washington, 434 U.S. at 514.
B. Post-Trial Statements
Next, Read argues that several jurors' post-trial
statements establish that the jury actually acquitted her on two
counts, such that she may not be re-prosecuted on those counts.
As an alternative remedy, she requests a hearing to ask the
original jurors whether they acquitted her on Counts One and Three.
1. Whether an Acquittal Occurred
"[A] verdict of acquittal is final, ending a defendant's
jeopardy, and . . . bar[ring] a subsequent prosecution for the
same offence." McElrath v. Georgia, 601 U.S. 87, 94 (2024)
(quoting Green v. United States, 355 U.S. 184, 188 (1957)).
"[W]hether an acquittal has occurred for purposes of the Double
Jeopardy Clause is a question of federal, not state, law." Id. at
96.
Under the Double Jeopardy Clause, an
"acquittal . . . encompass[es] any ruling that the prosecution's
proof is insufficient to establish criminal liability for an
offense." Id. at 94 (quoting Evans v. Michigan, 568 U.S. 313, 318
(2013)). "[A]n acquittal has occurred if the factfinder 'acted on
7Given our conclusion that the trial court exercised sound discretion in granting a mistrial, we need not address the Commonwealth's alternative argument that Read's counsel impliedly consented to a mistrial.
- 18 - its view that the prosecution had failed to prove its case.'" Id.
at 96 (quoting Evans, 568 U.S. at 325). In deciding whether a
defendant was acquitted, we "focus on substance over labels," and
"look to whether the ruling's substance relates to the ultimate
question of guilt or innocence." Id. at 94, 96 (cleaned up)
(quoting United States v. Scott, 437 U.S. 82, 98 n.11 (1978)). In
addition to a jury's formal verdict, a ruling that precludes
retrial can include, for example, a judge's order granting a motion
of acquittal, even if that order is mistaken or based on legal
error. See, e.g., Smith v. Massachusetts, 543 U.S. 462, 467-69
(2005); United States v. Martin Linen Supply Co., 430 U.S. 564,
571-72 (1977).
Read argues that there was an acquittal because "[t]he
'ruling' here was the jury's unanimous and final decision,
reflected in the post-trial affidavits, that Read is not guilty."
She offers no case law that directly supports her argument.
Instead, she points to cases where the jury returned a verdict,
and the verdict form was later amended to fix an error. See United
States v. Dotson, 817 F.2d 1127, 1129 (5th Cir.), vacated in part
on other grounds, 821 F.2d 1034 (5th Cir. 1987); United States v.
Stauffer, 922 F.2d 508, 511 (9th Cir. 1990).
The Commonwealth counters that there was no valid jury
verdict here under Massachusetts law. In particular, the
Commonwealth emphasizes that under state law, "a criminal verdict
- 19 - is effective only when affirmed by jurors in open court." (Quoting
Read, 250 N.E.3d at 565). The Commonwealth also notes that federal
law accords with this principle. See, e.g., Blueford v. Arkansas,
566 U.S. 599, 601 (2012).
Here, binding precedent is dispositive. In Blueford v.
Arkansas, the Supreme Court considered whether an acquittal had
occurred where, before a mistrial was declared, the jury foreperson
reported in open court that the jury had voted unanimously against
guilt on two of four charges but then returned to deliberating.
566 U.S. at 601, 610. The Court held that the defendant was not
acquitted of those two charges based on the possibility that jurors
could have changed their minds during the time they continued
deliberating but before a mistrial was declared. Id. at 606-08.
In other words, even where the jury foreperson had reported in
court a unanimous vote to acquit on two charges, that was
insufficient because deliberations were ongoing and the verdict
was not final. See id.
Read's evidence is far weaker than the facts in Blueford.
The statements here do not describe when any votes were taken or
whether such votes were preliminary or formal. Like Blueford,
there is no sign that a final vote was taken, meaning that if any
deliberations continued after a vote, jurors could have changed
their minds. See id. at 606, 608. Nor did the jury announce its
verdict in open court. Cf. id. at 603-04. Instead, the only
- 20 - communications the jury made were about its inability to reach a
consensus. Therefore, even if we assume that the jury unanimously
voted in private that the prosecution had failed to prove its case
on Counts One and Three, the jury did not "act[] on [that] view."
McElrath, 601 U.S. at 96 (quoting Evans, 568 U.S. at 325). There
was simply no act here that could be considered a "ruling" or
characterized as an acquittal.
2. Post-Trial Hearing
Read requests a post-trial hearing to question the
original jurors as to whether they acquitted her on Counts One and
Three during their deliberations. But on the facts here, we agree
with the district court that there was no final "ruling" of
acquittal that would trigger double jeopardy concerns such that
post-trial inquiry of the jurors would be appropriate. See Read,
2025 WL 815048, at *11. We also share the district court's
concerns about conducting such a hearing. Typically, the content
of jury deliberations is kept secret to enable jurors to discuss
their views freely and frankly and to protect them from harassment.
See Tanner v. United States, 483 U.S. 107, 120 (1987). The
district court found that these concerns -- the "freedom of juror
deliberations and the protection of jurors against
harassment" -- were "unquestionably implicated" in this case.
Read, 2025 WL 815048, at *15. We agree with the district court
that such a hearing would not be appropriate here.
- 21 - IV. Conclusion
The district court's decision is affirmed. Read's
motion to stay the state court proceedings pending appeal is denied
as moot.
- 22 -