United States Court of Appeals For the First Circuit
No. 22-1727
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN DENNISON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Kayatta, Selya, and Howard, Circuit Judges.
Thomas F. Hallett, with whom Hallett Whipple Weyrens was on brief, for appellant. Brian S. Kleinbord, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
July 13, 2023 SELYA, Circuit Judge. Managing a jury trial at a time
dominated by a pandemic poses difficult challenges for the
presiding judge. This case is emblematic of those challenges.
The tale follows.
Building on the foundational claim that the district
court's pandemic-driven declaration of a mistrial was not
predicated on manifest necessity, defendant-appellant Brian
Dennison alleges an infringement of his constitutional right not
to be twice put in jeopardy for the same offense. See U.S. Const.
amend. V. Concluding, as we do, that the district court's
declaration of a mistrial was within the encincture of its
discretion and that the defendant's Fifth Amendment right will not
be offended by further prosecution, we affirm the district court's
denial of the defendant's motion to dismiss.
I
In September of 2021, a federal grand jury sitting in
the District of Maine charged the defendant with a single count of
transmitting a threatening communication in interstate commerce.
See 18 U.S.C. § 875(c). After preliminary proceedings, a trial
was scheduled to start on May 23, 2022, and the district court
allotted three days for that purpose.
In the lead-up to the trial, the COVID-19 pandemic was
a continuing cause of concern. Responding to that concern, the
United States District Court for the District of Maine had — by
- 2 - way of a General Order — instituted measures to mitigate the risk
of contagion.1 Persons involved in jury trials were required to
wear facemasks, although those with speaking roles were permitted
to remove their masks before speaking, as long as they were fully
vaccinated and had tested negative for COVID-19 that same day.
Anyone who tested positive for COVID-19 within a ten-day period
was barred from the courthouse until satisfying the quarantine
requirements promulgated by the United States Centers for Disease
Control and Prevention (CDC). Throughout pretrial proceedings,
the parties were repeatedly reminded to familiarize themselves
with the General Order.
The court's pandemic response included altering its
operations in the Portland courthouse (where the defendant was to
be tried). Instead of using all three of the courtrooms for
trials, the district court reserved one courtroom for trials and
one for jury assembly and deliberations (seemingly to allow the
jurors more room to achieve social distancing). The third
courtroom was left vacant as a precautionary measure until the
General Services Administration had evaluated the courthouse's
air-filtration system.
1 The court's concern appears to have been especially acute at the time of trial as the judges of the district court amended the General Order on May 20, 2022, to respond (in the amendment's own words) "to a substantial increase in the spread of COVID-19."
- 3 - It was against this backdrop that the defendant's case
proceeded to trial. On May 22, 2022, the government sought to
postpone the presentation of evidence by a day because its lead-
off witness had been delayed at the airport by inclement weather.
The defendant consented to the postponement. The court, in turn,
reminded the parties that due to the restrictions under which the
courthouse was operating, it was imperative that the trial conclude
within the remaining two days that had been allotted. Counsel for
both parties assured the court that the case could be concluded
within that time span.
Trial commenced on May 24. The jury was sworn and given
preliminary instructions by the court, the lawyers delivered their
opening statements, and the government began to present its case.
Part way through that morning, the government called United States
Border Patrol Agent Jonathan Duquette as a witness. Agent Duquette
— assigned to a Federal Bureau of Investigation task force out of
the Boston field office — was not only the government's main
witness but also the case agent (a designation that entitled him
to assist the prosecution in the courtroom throughout the trial,
see Fed. R. Evid. 615(b)). He had taken the lead in investigating
the threat allegedly made by the defendant, and his testimony was
expected to introduce evidence essential to the government's case.
Agent Duquette wore a facemask at the outset of his
testimony. During the court's scheduled mid-morning recess,
- 4 - though, he took a rapid COVID-19 test so that he could continue
testifying without a facemask. The result of that test came back
positive for COVID-19. As the trial was set to resume, the court
was notified of that result.
The court alerted the parties and immediately initiated
a discussion as to whether it was feasible for the trial to
continue. The court suggested that the General Order had not
anticipated precisely such a situation and that it was inclined to
permit Agent Duquette to testify, despite having tested positive
for COVID-19, as long as he was masked and kept at a distance from
the jurors. The government was amenable to that suggestion, but
it expressed concern over the absence of Agent Duquette as the
case agent for the remainder of the trial. For his part, defense
counsel tentatively expressed a willingness to move forward with
the trial, assuming that appropriate protective measures were
taken. During the ensuing dialogue, the prosecutor stated that
the government would try to find a substitute case agent to take
Agent Duquette's place and that if Agent Duquette were permitted
to complete his testimony, the government could continue to present
its case.
After hearing the initial positions of the parties, the
court took a brief recess to ponder the matter. Slightly more
than fifteen minutes later, the court returned to the courtroom to
consult with the parties. It stated:
- 5 - Now, the — having the witness testify knowing that he is possibly infected because of a positive test is contrary to the Court's general orders, and it seems to me that it would be necessary for the Court to inform all of the persons in the courtroom, and in particular the jurors, of what we know, and that is that this witness tested positive, which could be a source of some concern for one or more of the jurors. And so it seems to me that it's important to weigh the effect that that might have on this trial with — against the effect of or the value of simply proceeding.
I don't think that it's appropriate to not inform the jurors of what we know about Mr. Duquette or, for that matter, the individuals who are in the courtroom. So they will be informed. It also seems to me that it is not, although I've considered this possibility, wise to give the choice — the jurors the personal choice of continuing to serve or being based upon their receipt of the information regarding Mr. Duquette. Even if [twelve] or more were to indicate a willingness to continue, I remain concerned, first of all, there is some health risk of us all continuing to proceed in a courtroom with an infected person, known to be infected, and that also this is the type of question which is upsetting for many people and could cause them upon reflection perhaps to change their mind about continuing to participate. So continuing with the trial under these conditions it seems to me is fraught with the possibility of complexity.
Of course, I have to weigh this against Mr. Dennison's rights. The trial's begun; our resources have been expended; [defense counsel has] indicated his client would like to continue notwithstanding this information. And that also of course it seems to me is extremely important.
- 6 - As I've weighted this, counsel, I've concluded tentatively that the most just way to respond to this unusual set of circumstances is to declare a mistrial. The rule provides that before ordering a mistrial the Court is to give each side, the defendant and the Government, the opportunity to comment on the propriety of the order, to state whether the party consents or objects, and to suggest alternatives. And so that's where we are at this moment.
Before making a final decision, the court wisely
solicited the views of counsel. See Fed. R. Crim. P. 26.3. Defense
counsel stated that although he understood the court's reasoning,
he objected generally to the declaration of a mistrial — and he
reiterated the defendant's desire to go forward with the trial.
At no time, however, did he propose to the court any mitigating
measures short of a mistrial. In turn, the prosecutor offered the
district court a mixed bag: he equivocated on whether the trial
ought to continue, expressing concern over whether jurors would be
able to focus on Agent Duquette's testimony or would be prejudiced
against the government for proffering a witness who might infect
them. Nevertheless, the prosecutor wound up by saying that he
would defer to the judgment of the court.
The court then summoned the jury. At sidebar, defense
counsel objected to the declaration of a mistrial on the ground
that retrying the case would unfairly advantage the government,
which was now apprised of the defendant's trial strategy (having
heard defense counsel's opening statement) and could shore up any
- 7 - weaknesses in its case. The court replied that because the
defendant had yet to present any evidence, defense counsel's stated
concern did not outweigh the reasons previously articulated by the
court for declaring a mistrial.
In due course, the court informed the jurors that Agent
Duquette had tested positive for COVID-19 and that, therefore, he
was no longer permitted in the courthouse as per the General Order.
The court then explained that because a key witness had been
rendered unavailable on the first day of the trial, and because
everyone in the courtroom had been indirectly exposed to COVID-
19, it was ordering a mistrial. The jurors were dismissed.
Following the mistrial, the defendant moved to dismiss
the indictment on double jeopardy grounds. The motion to dismiss
was denied by way of a written memorandum, and this interlocutory
appeal ensued. The appeal is properly before us. Although a
criminal defendant may not, in the ordinary course, appeal an
interlocutory order, an exception applies where, as here, "a
defendant can 'mount a colorable claim that further proceedings in
the trial court will constitute double jeopardy.'" United States
v. Suazo, 14 F.4th 70, 74 (1st Cir. 2021) (quoting United States
v. Keene, 287 F.3d 229, 232 (1st Cir. 2002)); see Abney v. United
States, 431 U.S. 651, 662 (1977).
- 8 - II
The Double Jeopardy Clause provides that no person shall
"be subject for the same offence to be twice put in jeopardy of
life or limb." U.S. Const. amend. V. The principle undergirding
the Clause's prohibition is that the government "with all its
resources and power should not be allowed to make repeated attempts
to convict an individual for an alleged offense." Green v. United
States, 355 U.S. 184, 187 (1957). Doing so would unfairly subject
a defendant to the continued ignominy, strain, and expense that
inevitably accompany criminal prosecution — and it would also
increase the likelihood that an innocent defendant might be found
guilty. See id. at 187-88.
Because jeopardy attaches once a criminal jury is sworn,
see United States v. Garske, 939 F.3d 321, 328 (1st Cir. 2019),
the Clause affords a defendant a "valued right to have his trial
completed by" that jury, Arizona v. Washington, 434 U.S. 497, 503
(1978) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). As a
general rule, then, "the prosecutor is entitled to one, and only
one, opportunity to require an accused to stand trial." Id. at
505. In the event of a mistrial, though, the defendant's "valued
right" stands in tension with "the public's interest in fair trials
designed to end in just judgments." Wade, 336 U.S. at 689. To
balance these concerns, courts have construed the Clause "to bar
retrial of a defendant after a mistrial ordered over the
- 9 - defendant's objection unless the mistrial was occasioned by
manifest necessity." United States v. McIntosh, 380 F.3d 548, 553
(1st Cir. 2004). Although the prerogative for declaring a mistrial
lies with the trial court, it is incumbent upon the government —
if it is to skirt the double-jeopardy bar — to demonstrate that
the mistrial was justified by manifest necessity. See Washington,
434 U.S. at 505.
Here, the defendant argues that the Double Jeopardy
Clause forecloses the government from retrying the case. His
argument proceeds in two steps: first, he asserts that we should
employ a heightened standard of review because the mistrial was
precipitated by the unavailability of a government witness;
second, he asserts that — regardless of the standard of review —
the district court erred in concluding that there was manifest
necessity for a mistrial. We address these assertions
sequentially.
III
"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." United States
v. Toribio-Lugo, 376 F.3d 33, 38 (1st Cir. 2004). The defendant,
however, strives to put a somewhat different gloss on the standard
of review that applies in this case. He points to a passage in
the Supreme Court's decision in Arizona v. Washington, which states
- 10 - that "the strictest scrutiny is appropriate when the basis for the
mistrial is the unavailability of critical prosecution evidence,
or when there is reason to believe that the prosecutor is using
the superior resources of the State to harass or to achieve a
tactical advantage over the accused." 434 U.S. at 508. Drawing
from this language, the defendant posits that because the
unavailability of Agent Duquette was the impetus for the mistrial
in this case, the district court's finding of manifest necessity
should be reviewed through the prism of "strictest scrutiny."
We do not read Washington as setting forth a substantive
framework for an alternative standard of review in double jeopardy
cases. The passage to which the defendant alludes resides within
a discussion of how the particular facts of a case may affect the
deference with which an appellate court views a trial court's
judgment to order a mistrial: at one end of the continuum lie
cases in which a mistrial is accompanied by a valence of
prosecutorial abuse such that the manifest-necessity determination
should be viewed with less deference; at the other end of the
continuum lie cases in which the possibility of prosecutorial abuse
seems far-fetched (the paradigmatic example of which is a hung
jury) and, therefore, the fact-specific nature of the trial court's
determination should engender great deference. See id. at 508-
10.
- 11 - The language in Washington must be read in light of its
contextual setting. There, the trial court had declared a mistrial
after the defendant's attorney made prejudicial comments in his
opening statement. See id. at 510. "[T]he difficulty which led
to the mistrial," the Court stated, "[fell] in an area where the
trial judge's determination is entitled to special respect." Id.
And the Court's description of circumstances warranting "strictest
scrutiny" was not essential to the reasoning of the opinion but,
rather, was offered in dicta.
Even so, some of our sister circuits, citing this
passage, have talked about applying a heightened standard of review
when a mistrial is declared due simply to the unavailability of a
key prosecution witness. See Seay v. Cannon, 927 F.3d 776, 781-
85 (4th Cir. 2019); United States v. Fisher, 624 F.3d 713, 718-23
(5th Cir. 2010); United States v. Rivera, 384 F.3d 49, 56-58 (3d
Cir. 2004); United States v. Stevens, 177 F.3d 579, 583-88 (6th
Cir. 1999). What that heightened standard might entail is not
entirely clear. Courts purporting to apply the standard have
indicated that "strictest scrutiny" entails a close inspection as
to whether the trial court carefully considered alternatives to a
mistrial, see Fisher, 624 F.3d at 722; Rivera, 384 F.3d at 56, but
that requirement is already inherent in the manifest-necessity
inquiry.
- 12 - A difference between abuse-of-discretion review and
"strictest scrutiny" has been articulated by the Fourth Circuit,
which has held that "strictest scrutiny" review mandates that a
finding of manifest necessity will not be upheld unless the trial
court, on the record, expressly assesses reasonable alternatives
to a mistrial, see Seay, 927 F.3d at 784 — a requirement that
departs from the Washington Court's deferential review, in which
the Court upheld a manifest-necessity determination based on
reasoning made apparent in the record as a whole, see Washington,
434 U.S. at 517. And other than the Fourth Circuit's requirement
that the trial court's assessment of alternatives appear on the
record, the test employed by courts under "strictest scrutiny"
does not seem to differ substantively from the ordinary praxis of
reviewing manifest-necessity determinations for abuse of
discretion.
Of course, "[c]arefully considered statements of the
Supreme Court, even if technically dictum, must be accorded great
weight and should be treated as authoritative when . . . badges of
reliability abound." United States v. Santana, 6 F.3d 1, 9 (1st
Cir. 1993). Here, the Court's statement that the "strictest
scrutiny" is warranted when a mistrial is required due to the
unavailability of prosecution evidence plainly stems from concerns
over "bad-faith conduct by [the] judge or prosecutor," whereby a
mistrial might be declared that would serve to harass a defendant
- 13 - with successive prosecutions or "afford the prosecution a more
favorable opportunity to convict the defendant." Washington, 434
U.S. at 508 (internal quotation marks omitted) (quoting United
States v. Dinitz, 424 U.S. 600, 611 (1976)). By way of example,
the Court explained that "[i]f . . . a prosecutor proceeds to
trial aware that key witnesses are not available to give testimony
and a mistrial is later granted for that reason, a second
prosecution is barred." Id. at 508 n.24 (citing Downum v. United
States, 372 U.S. 734 (1963)). Considered in context, then, the
dictum describing "strictest scrutiny" at most addresses only
situations where some fault attributable to the prosecution
necessitates a mistrial. See United States v. Simonetti, 998 F.2d
39, 41 n.6 (1st Cir. 1993).2
We have not had the opportunity in any earlier case to
employ any variation of the "strictest scrutiny" standard, nor do
we have any occasion to do so today. This case simply does not
fit the Washington mold: on the record before us, fault for the
mistrial, in the Washington sense, cannot be attributed to the
government. At the time that the jury was empaneled, the
government had no reason to believe that Agent Duquette would be
2To the extent that courts have gleaned from Washington a categorical rule that the unavailability of prosecution evidence, for any reason, engenders "strictest scrutiny" review, see Fisher, 624 F.3d at 720; Rivera, 384 F.3d at 56; Stevens, 177 F.3d at 584, we disagree.
- 14 - unavailable to testify: he was present at the start of the trial,
and he was in the course of testifying when he tested positive for
COVID-19. There is not a shred of evidence that he exhibited any
symptoms or was otherwise unwell at the outset of trial such that
the government should have anticipated that he would test positive
for COVID-19. So viewed, this case is at a far remove from those
cases in which the government gambled and went to trial "without
first ascertaining whether or not [its] witnesses were present."
Downum, 372 U.S. at 737 (quoting Cornero v. United States, 48 F.2d
69, 71 (9th Cir. 1931)); see Seay, 927 F.3d at 782; Walck v.
Edmondson, 472 F.3d 1227, 1239 (10th Cir. 2007). Put another way,
Agent Duquette testing positive for COVID-19 was a random bit of
misfortune, not the kind of "foreseeable possibility" that the
government should have been obliged to anticipate at the time the
jury was sworn. Seay, 927 F.3d at 782.
This brings us full circle. Although we recognize that
other courts have made mention of a "strictest scrutiny" standard
of review, we need not decide today the force, if any, that should
be accorded to those decisions. Such a standard, even were we to
adopt it, would not apply to this case. We proceed, therefore, to
review the district court's denial of the defendant's motion to
dismiss for abuse of discretion. See Toribio-Lugo, 376 F.3d at
38.
- 15 - Under this familiar standard, "we accept the district
court's factual findings unless those findings are clearly
erroneous," Garske, 939 F.3d at 329, and we review de novo "legal
principles on which the court premised its decision," United States
v. Lara-Ramirez, 519 F.3d 76, 83 (1st Cir. 2008) (quoting United
States v. Bradshaw, 281 F.3d 278, 291 (1st Cir. 2002)). In
conducting this tamisage, "we remain mindful that 'an error of law
is always tantamount to an abuse of discretion.'" Garske, 939
F.3d at 329 (quoting Torres-Rivera v. O'Neill-Cancel, 524 F.3d
331, 336 (1st Cir. 2008)).
Abuse of discretion is a deferential standard of review,
but it is not without some bite. It is not meant to provide a
rubber stamp for the district court's discretionary
determinations. Rather, when reviewing a trial court's
declaration of a mistrial, we assess whether that decision
reflected "a scrupulous exercise of judicial discretion," United
States v. Jorn, 400 U.S. 470, 485 (1971), and was justified by a
"high degree" of necessity, Washington, 434 U.S. at 506.
IV
The manifest-necessity inquiry eschews "any mechanical
formula by which to judge the propriety of declaring a mistrial in
the varying and often unique situations arising during the course
of a criminal trial." Illinois v. Somerville, 410 U.S. 458, 462
(1973). Instead, the inquiry "reduces to whether the district
- 16 - judge's declaration of a mistrial was reasonably necessary under
all the circumstances." Keene, 287 F.3d at 234. In making that
determination, we concentrate on three factors: "(1) whether the
district court consulted with counsel; (2) whether the court
considered alternatives to a mistrial; and (3) whether the court
adequately reflected on the circumstances before making a
decision." Garske, 939 F.3d at 334 (quoting McIntosh, 380 F.3d at
554). We caution, though, that those factors "serve only as a
starting point," McIntosh, 380 F.3d at 554, and that our review
must attend to "the particular problem [that] confront[ed] the
trial judge," Washington, 434 U.S. at 506.
The defendant contends that the district court abused
its discretion by declaring a mistrial without sufficiently
considering alternative courses of action and without adequately
reflecting on the circumstances at hand or engaging with counsel.
As we explain below, we find both contentions unpersuasive.
A
"Where . . . the district court fully considers, but
reasonably rejects, lesser alternatives to a mistrial, we will not
second-guess its determination." McIntosh, 380 F.3d at 556. In
the case at hand, the district court explored whether Agent
Duquette could continue his testimony if he wore a facemask and
was sufficiently isolated from the jury. But the district court's
General Order foreclosed that possibility as it forbade Agent
- 17 - Duquette from remaining in the courthouse once he had tested
positive for COVID-19.3
Next, the district court considered asking jurors if
they would be willing to continue with the trial despite the risk
of exposure to COVID-19, but rejected that alternative. We think
that it was reasonable, under the circumstances, for the court to
forgo that course of action. The jurors had been assured that
certain protections would be implemented to reduce the risk of
exposure to COVID-19. They learned that despite those protections
3The defendant claims that the district court misinterpreted its own General Order. The General Order mandated that those who tested positive for COVID-19 adhere to the CDC's "quarantine" requirements. But — according to the defendant — the CDC's website only set forth "isolation" requirements for those who tested positive for COVID-19, and any guidance concerning "quarantine" was limited to a set of recommendations that applied only to persons who had been exposed to (but had not tested positive for) the virus. The defendant further claims that the General Order only addressed circumstances in which someone who had either contracted or been exposed to COVID-19 was attempting to enter the courthouse and that it did not expressly address whether someone could remain in the courthouse after being informed, while there, that he had tested positive for COVID-19. Seizing on these semantic incongruities, the defendant argues that the General Order did not apply to Agent Duquette. This argument is premised on a strained and hyper-technical reading of the General Order. The General Order referred readers to the guidance of the CDC, which — according to the defendant — stated that those who tested positive for COVID-19 were required to isolate themselves from others. That the General Order did not perfectly mirror the language of the CDC's guidance is of no consequence. There is no common-sense reading of the General Order and the CDC's guidance that would — when those documents are considered together — lend itself to the conclusion that Agent Duquette was permitted to remain in the courthouse after testing positive for COVID-19.
- 18 - they had sat in the courtroom as a witness infected with COVID-19
testified. To ask them to continue sitting in the courtroom as
that witness gave additional testimony in violation of the General
Order that was intended to safeguard jurors does not strike us as
a reasonable alternative that the court was obliged to accept.
And we share the district court's concern that COVID-19, rather
than the evidence, may have dominated the jurors' attention had
the jurors been induced to run what to them could well be seen as
a high level of risk. We add, moreover, that questioning the
jurors about their willingness to continue was to some extent
obviated by the fact that Agent Duquette, having tested positive
for COVID-19, was barred from the courtroom under the terms of the
General Order.
When confronted with the need to decide whether to
declare a mistrial, the district court — like a quarterback in the
red zone — must scan the field and mull all of the available
options. Considering the myriad challenges posed at the relevant
time by the virulence of the COVID-19 pandemic, we think that
rejecting the alternatives discussed above was an appropriate
exercise of the court's discretion.
On appeal, the defendant proffers several other
alternatives that he suggests the district court should have
explored more thoroughly before declaring a mistrial. He submits
that the district court failed to question the jurors as to whether
- 19 - they would have been willing to continue serving despite Agent
Duquette testing positive for COVID-19; that the court failed to
consider the possibility of a continuance; and that it failed to
consider having Agent Duquette testify by video or, conversely,
striking his testimony. We assume, favorably to the defendant,
that our review of the court's failure to implement any of these
alternatives is for abuse of discretion. We perceive none.
As to the defendant's suggestion that the court should
have questioned jurors to discern whether they would have been
comfortable continuing with Agent Duquette in the courtroom, it is
nose-on-the-face plain, for reasons already discussed, that even
if such a voir dire had yielded twelve jurors willing to continue
in the presence of COVID-19, the path forward would have been, in
the district court's phrase, "fraught with the possibility of
complexity."
The defendant argues that our decision in Lara-Ramirez
is to the contrary. His argument is wide of the mark. In Lara-
Ramirez, we held that the declaration of a mistrial was not
justified by manifest necessity when the judge had not thoroughly
investigated a claim that the jury had been tainted by the presence
of a Bible in the jury-deliberation room. See 519 F.3d at 86-87.
Our opinion in Lara-Ramirez did not deal with the significantly
different question of whether a trial could continue in the face
- 20 - of psychological and emotional distractions accompanying a risk to
health.4 The nature of the risks posed by COVID-19, especially at
the time of the mistrial, sufficiently distinguishes this case.
Accordingly, we hold that the district court did not abuse its
discretion in declining to question the jury further.
Nor do we believe that it was an abuse of discretion not
to order a continuance.5 It is by no means clear that a seven-to-
ten-day adjournment, as the defendant now proposes, would have
either been feasible under the circumstances or resolved the
problems with which the district court was confronted.
4 At the time it declared the mistrial, the district court stated that it was concerned with both the health risk posed by having Agent Duquette continue his testimony and the psychological effects that such a risk would have on the jurors. But in its written memorandum denying the defendant's motion to dismiss, the district court disclaimed any concern about risks to physical health, instead stating that the mistrial declaration was premised "on the possible psychological and emotional effects on the jurors of being informed that they had been [exposed to COVID-19]." For present purposes, we assume that the narrower reason described by the district court in its written memorandum was what the court considered in reaching its manifest-necessity determination. 5 To be sure, the district court did not discuss the possibility of ordering a continuance on the record. Although it would have been helpful for the purposes of appellate review if the district court had more fully described its reasoning, this is an instance where "[t]he basis for the trial judge's mistrial order is adequately disclosed by the record" as a whole. Washington, 434 U.S. at 517. Thus, an explicit discussion of a continuance as an alternative to a mistrial (especially when the defendant did not raise the issue at the time) was not "constitutionally mandated." Id.
- 21 - We start with the obvious: nothing guaranteed that Agent
Duquette's mandated quarantine would be brief. The course of
COVID-19 in any given individual is unpredictable. It was,
therefore, anyone's guess when Agent Duquette would again be
available to testify; that would depend on the severity and
duration of his symptoms — variables that were unknown and
unknowable when the district court made its decision. Moreover,
the trial could only resume at that later date if all essential
persons (including counsel, witnesses, and jurors) were themselves
COVID-free — a difficult thing for a trial court to predict amidst
an ongoing pandemic.
Compounding those uncertainties were the severe
scheduling constraints under which the district court was
operating. Because the court's COVID-19 protocols had shrunk the
courthouse's operations to a single courtroom, the district court,
as it had told the parties in pretrial proceedings, had much less
flexibility than it normally would to accommodate emerging
exigencies.6
6 The defendant argues that scheduling issues alone are insufficient to justify a finding of manifest necessity. See Fisher, 624 F.3d at 723; Rivera, 384 F.3d at 56. But even if we give that argument due weight, there is no rigid rule that excludes scheduling difficulties from consideration, among an array of pertinent factors, in forging the manifest-necessity determination. See Jorn, 400 U.S. at 479-80 (explaining how myriad factors, including scheduling problems, may affect a finding of manifest necessity). Here, a mix of factors — including the
- 22 - Given this constellation of factors, the district court
faced a possible continuance of indeterminate length.
Consequently, we discern no abuse of discretion in the court's
determination that a mistrial was manifestly necessary. See
Garske, 939 F.3d at 334 (upholding district court's determination
that continuing trial was not feasible alternative to mistrial
when faced with "unpredictability" and indefinite nature of
juror's absence).
The defendant next argues that the district court should
have allowed Agent Duquette to testify by video or, conversely,
should have struck his testimony. These arguments lack force.
For Agent Duquette to have testified by video, the
defendant would have had to waive his right to confront adverse
witnesses, see U.S. Const. amend. VI; see also United States v.
Cotto-Flores, 970 F.3d 17, 37-38 (1st Cir. 2020) — a right that he
showed no intention of relinquishing at the time. We believe that
the responsibility for clarifying whether the defendant was
willing to waive that right rested with the defendant, not with
the trial court. Cf. Brookhart v. Janis, 384 U.S. 1, 4 (1966)
("There is a presumption against the waiver of constitutional
rights, and for a waiver to be effective it must be clearly
scheduling difficulties caused by the district court's COVID-19 protocols — informed the manifest-necessity determination.
- 23 - established that there was 'an intentional relinquishment or
abandonment of a known right or privilege.'" (internal citation
omitted) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))).
Nor was striking Agent Duquette's testimony a viable
option because the district court supportably found that he was an
essential witness. See United States ex rel. Gibson v. Ziegele,
479 F.2d 773, 777 (3d Cir. 1973) (finding mistrial justified by
manifest necessity due to illness of essential witness). Nothing
in the record shows that determination to be infected by any hint
of error. See United States v. Fitzpatrick, 67 F.4th 497, 502
(1st Cir. 2023) ("Clear error will be found only when, upon whole-
record-review, an inquiring court form[s] a strong, unyielding
belief that a mistake has been made." (alteration in original)
(internal quotation marks omitted) (quoting United States v.
Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010))).
B
This leaves the defendant's contentions that the
district court failed to reflect sufficiently on the circumstances
at hand and to solicit the views of counsel. The record belies
these contentions.
Upon learning that Agent Duquette had tested positive
for COVID-19, the district court asked for the views of counsel,
adjourned to consider the matter, consulted with counsel once more,
and then declared a mistrial. When the defendant's attorney was
- 24 - asked to address the matter, he offered no substantive objection
other than to complain that his defense strategy had been exposed.
Having reflected upon the matter, and having received little, if
any, meaningful feedback from the parties, the district court
proceeded to declare a mistrial. In our judgment, this is not the
stuff from which a defendant may weave a colorable claim of abuse
of discretion.
The defendant demurs, contending that the district
court's fifteen-minute recess was too brief to allow appropriate
consideration of the matter. In support, he cites other cases in
which we have upheld a district court's manifest-necessity
determination after more lengthy periods of reflection and
arguably more robust colloquies with the parties. See, e.g.,
Simonetti, 998 F.2d at 41-42. But in the context of the manifest-
necessity inquiry, "[e]ach case is sui generis and must be assessed
on its idiosyncratic facts." McIntosh, 380 F.3d at 554.
In reviewing a manifest-necessity determination, we are
more concerned with the scope and quality of the district court's
reflection than with the raw amount of time consumed. The case at
hand is patently not a case in which the district court rushed
headlong to abort a trial without endeavoring "to ascertain the
[defendant's] attitude or wishes with regard to the possibility of
a mistrial." Toribio-Lugo, 376 F.3d at 39. The record shows that
the district court discussed the issue with the parties at adequate
- 25 - length. And even though the defendant tells us on appeal that he
was uncertain about the district court's COVID-19 protocols and
would have benefitted from a more detailed exposition of the
district court's reasoning, he told the district court at the time
that he understood the court's rationale.
We hold, therefore, that the district court's reflection
and discussion with counsel were not so truncated as to constitute
an abuse of discretion. Rather, those actions manifest "a
scrupulous exercise of judicial discretion," Jorn, 400 U.S. at
485, and make pellucid that the declaration of a mistrial in this
case was spurred by a "high degree" of necessity, Washington, 434
U.S. at 506.
V
We need go no further. It bears emphasis that this case
arose in the shadow of the pandemic. Jury trials were just
resuming, and courts had to step carefully. For the reasons
elucidated above, the cautious steps taken by the district court,
culminating in its declaration of a mistrial, were comfortably
within the encincture of its discretion. Accordingly, the
defendant's motion to dismiss was appropriately denied and the
judgment of the district court is
Affirmed.
- 26 -