United States v. Barbioni

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 95-1555



                                    UNITED STATES,



                                      Appellee,



                                          v.



                               JOSEPH EUGENE BARBIONI,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                          Boudin and Stahl, Circuit Judges.
                                            ______________



                                _____________________



               William Maselli for appellant.
               _______________

               F. Mark Terison, Assistant United States Attorney, with whom
               _______________

          Jay  P. McCloskey,  United  States  Attorney,  and  Elizabeth  C.
          _________________                                   _____________

          Woodcock, Assistant  United States  Attorney, were  on brief  for
          ________

          appellee.


____________________



                                    August 7, 1995

                                 ____________________



TORRUELLA,  Chief  Judge.   Defendant-appellant  Joseph
                    TORRUELLA,  Chief  Judge.
                                ____________



          Barbioni  appeals on double jeopardy grounds the district court's



          denial of his motion to dismiss.  The district court had declared



          a mistrial  after  the jury  announced  that it  was  deadlocked.



          Finding no abuse of discretion, we affirm.



                                      BACKGROUND
                                      BACKGROUND



                    Appellant   Barbioni  was   indicted   and  tried   for



          deliberately  making   false  statements  to  the  United  States



          Department of Labor  Workers' Compensation Program, and  for mail



          fraud, in violation of 18  U.S.C.    1001 and 1341, respectively.



          After a  trial that lasted  almost four days, the  jury was given



          instructions by the  district court and began  its deliberations.



          After  approximately seven  hours, the  jury sent  a note  to the



          district court, saying  that it could  not reach a verdict.   The



          district court judge then brought  the jury back to the courtroom



          and  gave it  some general  instructions,  such as  reminding the



          jurors that the verdict must be unanimous.  The court then stated



          to the jury  that it did not  intend to keep them  there "against



          your will and beat a verdict out of you one way or the other, but



          I want to  make one more effort  to attempt to reach  a unanimous



          verdict if we can."  The court continued, "[I]f that's impossible



          in  your collective  judgment, then  advise  me of  that fact  in



          writing . . . and we'll respond accordingly."



                    The jury then retired again.  After three more hours of



          further deliberations,  the jury again  sent a note to  the court



          saying that it could not reach  a unanimous decision.  The  judge


-2-



then called counsel  for the government and  defense counsel into



          chambers and explained that he was going to inquire of the jurors



          individually whether they all agreed  that they could not reach a



          verdict.  If  they all agreed, the court stated, it would declare



          a  mistrial.   The defense  objected  to this  course of  action,



          requesting that the jury be given more time to deliberate after a



          weekend's rest.



                    Nevertheless, the court polled the jurors  individually



          in open court.   Each juror stated  that he or she  was satisfied



          that the  jury was deadlocked,  and that further  instructions or



          deliberations   were   not  likely   to  resolve   the  deadlock.



          Accordingly, the district court declared a mistrial and dismissed



          the jury over defense counsel's objections.



                                       ANALYSIS
                                       ANALYSIS



                    Barbioni  now claims that the district court abused its



          discretion in declaring a mistrial, and that retrial is barred by



          the Double Jeopardy Clause of  the United States Constitution.  A



          decision  to  declare  a  mistrial  is  committed  to  the  sound



          discretion of  the trial court,  Arizona v. Washington,  434 U.S.
                                           _______    __________



          497, 506  (1978), and we  therefore review only  for an abuse  of



          this discretion.  After carefully reviewing the record, we see no



          such abuse here.



                    While  it is  certainly  true that  a  defendant has  a



          "valued  right  to  have  his  trial completed  by  a  particular



          tribunal,"  Wade v. Hunter, 336 U.S. 684, 689 (1949),  this right
                      ____    ______



          is  not absolute.   Rather,  it  is subject  to  the doctrine  of


-3-



"manifest necessity."   United States v. Ram rez,  884 F.2d 1524,
                                  _____________    _______



          1528 (1st Cir.  1989) (citing United States v. P rez,  22 U.S. (9
                                        _____________    _____



          Wheat.) 579, 580  (1824).  Under this doctrine,  a district court



          may declare a mistrial over  the defendant's objection only if it



          determines that there is  a "manifest necessity" for a  mistrial,



          or the ends of public justice would otherwise be defeated.   Id.;
                                                                       __



          see  also United  States v.  DiPietro, 936  F.2d 6,  9  (1st Cir.
          _________ ______________     ________



          1991).   Moreover,  a  district  court must  find,  based on  the



          particular  circumstances surrounding  the trial  and the  jury's



          deliberations, that there exists a "high degree" of necessity for



          a mistrial before  making such a declaration.   Ram rez, 884 F.2d
                                                          _______



          at 1528-29 (citing Arizona v. Washington, 434 U.S. at 506).
                             _______    __________



                    Examining  the circumstances  of  the instant  case, we



          think that  the district  court did not  abuse its  discretion in



          finding "manifest necessity" for declaring a  mistrial.  The jury



          deliberated for  almost ten  hours, after  which each  individual



          juror unequivocally expressed the opinion that the jury could not



          reach a unanimous decision.   The court polled the jurors on this



          point with great care before concluding that further deliberation



          would be  futile.1   Moreover, the trial  was a  relatively short

                              
          ____________________



          1  Barbioni also contends that the court should have instead sent

          the  jurors  home  and  reconvened  them  for  deliberations  the

          following Monday.  Under the circumstances, we cannot find  error

          in  the court's  rejection of  this suggestion.   The  jurors had

          unanimously declared to the court  that they did not believe that

          further deliberations  would be  fruitful.   By disregarding  the

          jurors  on this  point and  demanding  further deliberation,  the

          court might  have risked  pressuring the  jurors into  abandoning

          good faith opinions  merely for the  sake of reaching  unanimity.

          We do not mean that the  district court was obliged to take  this

          view, but it was a pertinent consideration.



                                         -4-



one,  and   the  legal   issues  at   stake  were   not  complex.



          Nevertheless,  the jurors  could  not reach  a verdict  after ten



          hours  of  deliberation.    We  think  that  these  circumstances



          rationally permitted the district court to conclude that manifest



          necessity justified the declaration of a mistrial.



                    It is well settled  that an appeal  from a denial of  a



          motion to  dismiss  following a  "hung  jury" does  not  normally



          present  a valid  Double Jeopardy  claim.   Richardson v.  United
                                                      __________     ______



          States, 468  U.S. 317, 324  (1984); United States v.  Porter, 807
          ______                              _____________     ______



          F.2d 21, 22 (1st Cir. 1986),  cert. denied, 481 U.S. 1048 (1987).
                                        _____ ______



          Given the  district court's sound  exercise of its  discretion in



          declaring a mistrial, we see  no reason here to depart  from this



          rule.    Accordingly,  the  district  court's  declaration  of  a



          mistrial and denial of  Barbioni's motion to dismiss the  charges



          are affirmed.2 
              ________


____________________



          2  Barbioni also contends on appeal that the district court erred

          in its  modified Allen  instruction to  the jury.   See  Allen v.
                           _____                              ___  _____

          United States, 164 U.S. 492 (1896).   At the time the charge  was
          _____________

          given,  however,  defense  counsel raised  no  objections  to the

          instruction.  Even when the district court had finished and asked

          counsel if they had anything to add to the modified Allen charge,
                                                              _____

          defense counsel  stated, "No, your  Honor.  Thank you."   Because

          Barbioni  did  not  object  to  the instruction,  and  raised  no

          arguments or suggestions  when given the opportunity to  do so by

          the district  court,  we deem  this  argument waived  on  appeal.

          Windsor Mount Joy v. Giragosian,  53  F.3d __, __ (1st Cir. 1995)
          _________________    __________

          (arguments  not  properly  raised  below  are  deemed  waived  on

          appeal).



                                         -5-