United States Court of Appeals For the First Circuit
No. 18-1873
UNITED STATES OF AMERICA,
Appellant,
v.
CHARLES W. GARSKE, A/K/A CHUCK GARSKE; RICHARD J. GOTTCENT; MICHAEL SEDLAK,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Thompson, Selya, and Barron, Circuit Judges.
Cynthia A. Young, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant. David Spears, with whom Josiah Pertz, Spears & Imes LLP, Justine Harris, Michael Gibaldi, Sher Tremonte LLP, William J. Cintolo, Meredith Fierro, and Cosgrove, Eisenberg & Kiley, PC were on joint brief, for appellees.
September 20, 2019 SELYA, Circuit Judge. This appeal requires us to address
a novel question implicating the Double Jeopardy Clause. See U.S.
Const. amend. V. Concluding, as we do, that the district court
erred in holding that the defendants were insulated from a retrial
by double jeopardy principles, we reverse the district court's
order of dismissal and remand the case for further proceedings
consistent with this opinion.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. The reader who thirsts for more exegetic detail may wish to
consult the district court's comprehensive account. See United
States v. Ackerly, 323 F. Supp. 3d 187, 190-92 (D. Mass. 2018).
On August 10, 2016, a federal grand jury sitting in the
District of Massachusetts returned an indictment charging four
defendants — Donna Ackerly, Charles Garske, Richard Gottcent, and
Michael Sedlak — with multiple counts of wire fraud, honest-
services wire fraud, and conspiracy to commit both species of wire
fraud. See 18 U.S.C. §§ 1343, 1346, 1349. The indictment
recounted that between September of 2007 and March of 2012, the
four defendants conducted a fraudulent scheme while employed at
Georgeson, Inc., a firm that specializes in advising public
companies on positions that institutional investors are likely to
take in voting their proxies with respect to corporate governance
proposals. The alleged scheme consisted of bribing an employee of
- 2 - Institutional Shareholder Services, Inc. (ISS), a firm that
advises institutional shareholder clients on how to vote on
particular proxy issues, in exchange for confidential information
about ISS's proxy-voting advice and then falsifying invoices to
Georgeson's clients to cover the cost of the bribes.
Ackerly moved to sever, see Fed. R. Crim. P. 14(a),
arguing that she was "peripheral at most" to the conduct alleged
in the indictment and that severance would shield her from
potentially prejudicial spillover attributable to the evidence
against her codefendants. The government opposed Ackerly's
motion, and the district court sustained the government's
objection. Ackerly renewed her severance motion approximately one
year later, but to no avail.
Trial began on February 26, 2018, with twelve jurors and
two alternates empaneled. On the second day of trial, the district
court excused a juror who failed to report for duty. On the fourth
day of trial, the court excused a second juror for medical reasons.
During the eleventh day of trial (Friday, March 16), the court
told the jurors that the presentation of evidence would conclude
on Monday, March 19, with final arguments and jury instructions to
follow. Later that evening, a "distraught" Juror 12 contacted a
district court clerk, explaining that his wife had gone to the
hospital and he was concerned about continuing his jury service.
- 3 - He subsequently told the clerk that his wife had been diagnosed
with a brain tumor and would require surgery in the next few days.
At 10:32 a.m. on Saturday morning, at the direction of
the district court, the clerk notified counsel by email about Juror
12's situation. The clerk wrote that Federal Rule of Criminal
Procedure 23(b)(2)(B) "allows a reduction to 11 jurors with the
written consent of the parties and the judge" and added that the
court was "prepared to make the necessary finding of good cause
and look[ed] to the parties to agree." Attorneys for Garske,
Gottcent, and Sedlak all responded, indicating their clients'
assent to proceeding with a jury of eleven. The government replied
by email at 12:18 p.m. that it "consent[ed] to proceed with 11."
At 2:53 p.m., the government clarified "that [its] consent is
conditioned on all four defendants consenting." Ackerly's counsel
weighed in at 4:15 p.m., reminding the court that Ackerly had
sought severance from the inception of the case and stating that
she would not consent. This email went on to assert that the
government witnesses set to testify that Monday would "not offer
any evidence against [Ackerly]," and that Ackerly was prepared to
move for a judgment of acquittal. The government replied that the
evidentiary record as to Ackerly was "not complete." Moreover,
the government noted that it was "puzzled by [Ackerly's] reference
to severance," expressing the view that it would be "terribly
- 4 - inappropriate to use this circumstance in an attempt to achieve
that result."
Later that afternoon, the clerk emailed the parties that
she had communicated their positions to the district court. The
email explained, inter alia, that the court would not entertain
Ackerly's motion for judgment of acquittal and that it intended to
enter a finding of good cause for Juror 12's excusal on Monday,
March 19. Finally, the email stated that the court "accept[ed]
the emails of the consenting defendants['] attorneys as made in
good faith and believe[d] that the double jeopardy clause g[ave]
. . . those defendants the right to proceed to a verdict with [the
empaneled] jury." This email, however, proved to be premature.
Shortly after it was sent, the clerk reported to the parties that
the district court had just seen the government's second email —
clarifying that its consent was conditional — and the court "fe[lt]
it ha[d] no other choice than to declare a mistrial on Monday
morning."
On Monday, the district court convened a non-evidentiary
hearing. The court began by reiterating that the circumstances
"constitute[d] good cause for the juror's excusal." Turning to
Rule 23(b)(2), the court noted that the rule was "as clear as a
rule could be" in stating that the parties, "which would
necessarily include the government," must agree to proceed with a
jury of fewer than twelve. Given the government's unwillingness
- 5 - to consent to a reduced jury, the court acknowledged that
"[t]here's no power that I see, or discretion that I have, under
the rule to force any different result." The court then related
that it had considered alternatives to the declaration of a
mistrial but could think of only one: indefinitely postponing the
trial pending the return of Juror 12. In the court's judgment,
though, such an alternative was not feasible due to the uncertainty
of the juror's wife's medical condition and the difficulty of
supervising the other jurors in the interim. The parties suggested
no other alternatives to a mistrial, but Garske, Gottcent, and
Sedlak objected to a mistrial on the ground that the government's
"conditional" consent did not demonstrate the requisite "manifest
necessity."
At that point, the district court summoned the jury and
explained what had transpired. The court declared a mistrial and
discharged the jurors. The following day, the government announced
that it intended to retry the defendants.
On April 27, 2018, Garske, Gottcent, and Sedlak filed a
joint motion to preclude retrial and to dismiss the indictment
under the Double Jeopardy Clause on the ground that the government
could not establish "'manifest necessity' for its decision to force
the mistrial." After hearing argument, the district court took
the matter under advisement. In due course, the court handed down
- 6 - a rescript and granted the motion to dismiss the indictment. This
timely appeal followed.
II. THE LEGAL LANDSCAPE
This case presents a question of first impression
arising at the intersection of Federal Rule of Criminal Procedure
23 and the Double Jeopardy Clause. It implicates two competing
rights: the right of all parties to have a criminal case decided
by a jury of twelve and a criminal defendant's right not to be
twice put in jeopardy. We lay the groundwork for our analysis by
limning the applicable legal principles.
A. Rule 23.
In Patton v. United States, 281 U.S. 276 (1930), the
Supreme Court held that a criminal defendant has a constitutional
right to a jury of twelve unless he waives that right. See id. at
312. The Court cautioned that "[i]n affirming the power of the
defendant in any criminal case to waive a trial by a constitutional
jury and submit to trial by a jury of less than twelve persons
. . . , we do not mean to hold that the waiver must be put into
effect at all events." Id. In amplification, the Court stated
that "before any waiver can become effective, the consent of
government counsel and the sanction of the court must be had, in
addition to the express and intelligent consent of the defendant."
Id. Relatedly, "the duty of the trial court in that regard is not
- 7 - to be discharged as a mere matter of rote, but with sound and
advised discretion." Id.
The Patton Court's holding was later codified in Federal
Rule of Criminal Procedure 23. See Fed. R. Crim. P. 23 advisory
committee notes to 1944 adoption. Rule 23 declares that, except
as otherwise provided in the rule, "[a criminal] jury consists of
12 persons." Fed. R. Crim. P. 23(b)(1). The rule contains a
proviso, which states that "[a]t any time before the verdict, the
parties may, with the court's approval, stipulate in writing that:
(A) the jury may consist of fewer than 12 persons; or (B) a jury
of fewer than 12 persons may return a verdict if the court finds
it necessary to excuse a juror for good cause after the trial
begins." Fed. R. Crim. P. 23(b)(2). It follows that, by virtue
of the plain language of Rule 23, the consent of all parties and
the court is generally required to try a case to verdict with a
jury of eleven.1
B. Double Jeopardy.
The Double Jeopardy Clause ensures 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. It provides "a triumvirate
1 There is an exception for situations in which jury deliberations already have begun. See Fed. R. Crim. P. 23(b)(3) (authorizing district court to "permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a [deliberating] juror"). This exception is not implicated in the case at hand.
- 8 - of safeguards: 'It protects against a second prosecution for the
same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.'" United States
v. Ortiz-Alarcon, 917 F.2d 651, 653 (1st Cir. 1990) (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969)). These safeguards
attach once a criminal jury is sworn. See United States v.
Toribio-Lugo, 376 F.3d 33, 37 (1st Cir. 2004). "That jeopardy
attaches at this early stage, rather than at final judgment, is a
recognition of the defendant's prized right to have his trial,
once under way, completed by a particular trier." Id.
Even so, the prophylaxis of the Double Jeopardy Clause
is not absolute. See Wade v. Hunter, 336 U.S. 684, 688 (1949)
(explaining that double jeopardy protection "does not mean that
every time a defendant is put to trial before a competent tribunal
he is entitled to go free if the trial fails to end in a final
judgment"). When a mistrial occurs, the point at which double
jeopardy principles bar a retrial is not always easy to plot. The
general rule is that a judge's decision to discharge an empaneled
jury and declare a mistrial prior to verdict does not bar retrial
when, "taking all the circumstances into consideration, there is
a manifest necessity for the act, or the ends of public justice
would otherwise be defeated." United States v. Perez, 22 U.S. (9
Wheat.) 579, 580 (1824). Although the determination of whether to
- 9 - discharge the jury and declare a mistrial lies in the "sound
discretion" of the trial court, id., "the prosecutor must shoulder
the burden of justifying the mistrial if he is to avoid the double
jeopardy bar," Arizona v. Washington, 434 U.S. 497, 505 (1978).
Specifically, "[t]he prosecutor must demonstrate 'manifest
necessity' for any mistrial declared over the objection of the
defendant." Id.
The Supreme Court has cautioned that the manifest
necessity standard cannot "be applied mechanically or without
attention to the particular problem confronting the trial judge."
Id. at 506. So, too, the Court has warned "that the key word
'necessity' cannot be interpreted literally." Id. After all,
"there are degrees of necessity," and the Court's jurisprudence
"require[s] a 'high degree' [of necessity] before concluding that
a mistrial is appropriate." Id. Thus, "[a] trial judge properly
exercises his discretion to declare a mistrial if an impartial
verdict cannot be reached, or if a verdict of conviction could be
reached but would have to be reversed on appeal due to an obvious
procedural error in the trial." Illinois v. Somerville, 410 U.S.
458, 464 (1973).
III. ANALYSIS
Against this backdrop, we turn to the case at hand. We
review the district court's allowance of a motion to dismiss on
double jeopardy grounds, following the declaration of a mistrial,
- 10 - for abuse of discretion. See Toribio-Lugo, 376 F.3d at 38. Within
this rubric, we accept the district court's factual findings unless
those findings are clearly erroneous. See id. (citing United
States v. Bradshaw, 281 F.3d 278, 291 (1st Cir. 2002)).
"Articulations of law engender de novo review." Id. (citing United
States v. Keene, 287 F.3d 229, 233 (1st Cir. 2002)). And we remain
mindful that "an error of law is always tantamount to an abuse of
discretion." Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336
(1st Cir. 2008).
Re-examining its earlier decision to declare a mistrial,
the court below concluded that
[w]ere the issue to turn solely on the operation of Rule 23, it would be difficult to imagine a necessity more manifest: the Rule plainly dictates that in circumstances like these, a trial cannot proceed with less than twelve jurors without the consent of all parties, and that includes the government.
Ackerly, 323 F. Supp. 3d at 201 (emphasis in original). But, the
court explained, "the issue is more complex than a strictly rule-
based analysis would suggest. While [Rule 23] may excuse the trial
judge for declaring a mistrial (at least where there is no
practical or feasible alternative), the [manifest necessity]
doctrine also implicates the decision-making of the government."
Id. Analogizing to the Supreme Court's pronouncement that "the
prosecutor must shoulder the burden of . . . demonstrat[ing]
'manifest necessity' for any mistrial declared over the objection
- 11 - of the defendant," id. at 202 (quoting Washington, 434 U.S. at
505), the district court ruled that when "the prosecutor plays a
prominent role in bringing about the necessity of a mistrial, the
'manifest necessity' standard applies to the government's
decision-making with the same force as it does to the actions taken
by the trial judge," id.
On this understanding, the district court framed the
dispositive question as: "Can the government, in the circumstances
of this case, point to a 'manifest necessity' for the withholding
of its consent to a verdict by a jury of eleven one day before a
month-long trial was coming to an end?" Id. Answering its own
question in the negative, the court granted the joint motion of
Garske, Gottcent, and Sedlak for dismissal of the charges against
them. See id. at 203.
The district court's focus on the manifest necessity of
the government's decisionmaking is novel and, in our view, rests
on a misreading of Washington. We do not gainsay that in order to
retry a defendant after a mistrial, the government must carry the
burden of showing "'manifest necessity' for [the] mistrial."
Washington, 434 U.S. at 505. But this burden is not — as the
district court suggests — a burden to show manifest necessity for
the government's decisionmaking. Instead, it is a burden to show
manifest necessity for the district court's decision to declare a
mistrial. See id. at 514 (explaining that "reviewing courts have
- 12 - an obligation to satisfy themselves that . . . the trial judge
exercised 'sound discretion' in declaring a mistrial" (quoting
Perez, 22 U.S. at 580)); Toribio-Lugo, 376 F.3d at 39 (suggesting
that the manifest necessity "inquiry inevitably reduces to whether
the district judge's declaration of a mistrial was reasonably
necessary under all the circumstances" (quoting Keene, 287 F.3d at
234)); see also Perez, 22 U.S. at 580 (stating that there must be
"manifest necessity for the act" of declaring a mistrial (emphasis
supplied)).
Washington illustrates this point. There, the trial
judge granted the government's motion for a mistrial due to
prejudicial comments in defense counsel's opening statement. See
434 U.S. at 498, 501. The Supreme Court trained the lens of its
inquiry on whether the judge "act[ed] precipitately in response to
the prosecutor's request for a mistrial," not on the prosecutor's
decision to make such a request. Id. at 515. The Court concluded
that, because the judge "exercised 'sound discretion' in handling
the sensitive problem of possible juror bias created by the
improper comment of defense counsel, the mistrial order [was]
supported by the 'high degree' of necessity which is required in
a case of this kind." Id. at 516.
The Supreme Court's decision in Somerville is similarly
instructive. There, the prosecutor moved for a mistrial after
spotting a fatal defect in the indictment. See 410 U.S. at 459-
- 13 - 60. Concluding that further proceedings under the defective
indictment would be futile, the trial judge granted the
prosecutor's motion. See id. at 460. The Court determined that
there was manifest necessity for the judge's decision to declare
a mistrial, explaining that "where the declaration of a mistrial
. . . aborts a proceeding that at best would have produced a
verdict that could have been upset at will by one of the parties,
the defendant's interest in proceeding to verdict is outweighed by
the competing and equally legitimate demand for public justice."
Id. at 471. The Court did not, however, inquire into the reasons
for the government's faulty indictment.
Although the Somerville Court kept the focus of the
manifest necessity inquiry squarely on the trial judge's actions,
it did not categorically dismiss the relevance of the government's
role in causing a mistrial. The Court explained that "[a] trial
judge properly exercises his discretion to declare a mistrial" if
"a verdict of conviction could be reached but would have to be
reversed on appeal due to an obvious procedural error." Id. at
464. The Court hastened to add that "[i]f an error would make
reversal on appeal a certainty, it would not serve 'the ends of
public justice' to require that the Government proceed with its
proof when, if it succeeded before the jury, it would automatically
be stripped of that success by an appellate court." Id. (quoting
Perez, 22 U.S. at 580). Importantly, the Court qualified these
- 14 - statements by noting that "the declaration of a mistrial on the
basis of a rule or a defective procedure that would lend itself to
prosecutorial manipulation would involve an entirely different
question." Id. (emphasis supplied). Nothing in the Court's
discussion, however, suggests that the manifest necessity test
used to determine the propriety of the trial judge's decision to
declare a mistrial is the relevant metric for assessing
prosecutorial exploitation of a rule or procedure.
Washington and Somerville light the path that we must
tread. There is nothing either in those opinions or elsewhere in
the Supreme Court's double jeopardy jurisprudence that affords any
basis for applying the manifest necessity doctrine to the
decisionmaking of the government (as opposed to that of the trial
court). Such an application would represent a substantial — and
ungrounded — expansion of the manifest necessity doctrine.
This is not to say that the actions of the government
never factor into the double jeopardy inquiry. As Somerville
intimates, those actions may have relevance to that inquiry.
Indeed, they may sometimes be of critical import because "the
Double Jeopardy Clause provides a defendant with a shield against
prosecutorial maneuvering designed to provoke a mistrial." United
States v. McIntosh, 380 F.3d 548, 557 (1st Cir. 2004) (citing
Oregon v. Kennedy, 456 U.S. 667, 674 (1982)); see United States v.
Dinitz, 424 U.S. 600, 611 (1976). Thus, even if manifest necessity
- 15 - exists for the trial judge's decision to declare a mistrial, a
retrial may be foreclosed "if the prosecutor purposefully
instigated a mistrial or if he committed misconduct designed to
bring one about." McIntosh, 380 F.3d at 557.2
When all is said and done, a defendant whose trial was
terminated prior to verdict can invoke the double jeopardy bar in
one of two situations. First, if the defendant objected and the
trial judge's decision to declare a mistrial was unsupported by
some manifest necessity, double jeopardy will foreclose a second
trial. See id. at 553; United States v. Simonetti, 998 F.2d 39,
41 (1st Cir. 1993). Second, if the prosecution either deliberately
instigated the mistrial or engaged in other misconduct causing the
mistrial, double jeopardy will foreclose a second trial. See
McIntosh, 380 F.3d at 557; Simonetti, 998 F.2d at 42.
The defendants have a more expansive view of double
jeopardy. They argue that their constitutional right to proceed
2 The defendants strive to persuade us that this standard "has no relevance to this case" because they did not request the mistrial. We are not convinced. Although Kennedy and Dinitz both involved defendants who had sought mistrials, see Kennedy, 456 U.S. at 668; Dinitz, 424 U.S. at 601, we see no reason why prosecutorial misconduct would not similarly activate the double jeopardy bar when the defendant objected to the mistrial, cf. McIntosh, 380 F.3d at 552, 557 (analyzing claim that retrial was barred by prosecutor's actions that "were both improper and designed to provoke a mistrial" when defendants had objected to mistrial on the basis of such actions); United States v. Simonetti, 998 F.2d 39, 41-42 (1st Cir. 1993) (considering defendant's argument that retrial was barred because mistrial declared over his objection was "caused by governmental misconduct").
- 16 - with an already-empaneled jury "takes precedence" over the
government's right to withhold consent to a jury of eleven.
According to the defendants, "neither Patton nor Rule 23(b)(2)(B)
was intended to give the government an automatic right to retry a
defendant before a new jury simply by refusing to consent to fewer
than 12 jurors and thereby compelling a mistrial over a defendant's
objection." Since "the government was the exclusive agent of the
mistrial," their thesis runs, its reason for withholding consent
to an eleven-member jury must satisfy the manifest necessity
standard. Referencing several cases in which courts have found no
manifest necessity when a district court chose to declare a
mistrial rather than sever a defendant's case,3 see, e.g., United
States v. Chica, 14 F.3d 1527, 1532-33 (11th Cir. 1994); United
States v. Allen, 984 F.2d 940, 942 (8th Cir. 1993); United States
v. Crotwell, 896 F.2d 437, 440 (10th Cir. 1990); United States v.
Ramirez, 884 F.2d 1524, 1530 (1st Cir. 1989); United States v.
Bridewell, 664 F.2d 1050, 1051 (6th Cir. 1981) (per curiam), the
defendants insist that concerns about judicial economy cannot
satisfy the manifest necessity standard.
As an initial matter, we disagree with the defendants'
attempt to brand the government as the architect of the mistrial.
3 For the sake of completeness, we note that none of the three defendants who are appellees here moved for a severance at or after the time when Ackerly refused to consent to proceeding with a jury of eleven.
- 17 - Although the government's decision to withhold consent to a jury
of eleven technically precipitated the mistrial, the root cause of
the mistrial was Juror 12's sudden unavailability due to his wife's
medical emergency. Once Juror 12 was excused, the remaining eleven
jurors no longer comprised a constitutional jury, see Patton, 281
U.S. at 312, and the trial was stopped in its tracks. It could
proceed only if the strictures of Rule 23(b)(2)(B) were satisfied.
Of course, the right to a constitutional jury may be
waived. Such a waiver is permitted, though, only with "the consent
of government counsel and the sanction of the court." Id. The
government is under no obligation to consent to a jury of eleven,
and the defendants' entitlement to waive trial by a jury of twelve
does not carry with it an entitlement to override the government's
unwillingness to consent. Cf. Singer v. United States, 380 U.S.
24, 34-35 (1965) ("The ability to waive a constitutional right
does not ordinarily carry with it the right to insist upon the
opposite of that right."). Seen in this light, keeping the focus
of the manifest necessity inquiry on the trial judge's decision to
declare a mistrial, rather than switching the focus to the
government's decision to withhold consent to a jury of eleven,
does not impermissibly elevate the government's right to withhold
consent under Rule 23 above the defendants' double jeopardy rights.
Nor would such a focus impair the defendants' double
jeopardy protections. Although these protections attach when a
- 18 - jury is sworn, see Toribio-Lugo, 376 F.3d at 37, "unforeseeable
circumstances that arise during a trial [may make] its completion
impossible," Somerville, 410 U.S. at 470 (quoting Wade, 336 U.S.
at 689). In such an event, "a defendant's valued right to have
his trial completed by a particular tribunal must . . . be
subordinated to the public's interest in fair trials designed to
end in just judgments." Id. (emphasis omitted) (quoting Wade, 336
U.S. at 689); see Dinitz, 424 U.S. at 609 n.11 (explaining that
"the defendant's interest in going forward before the first jury
[is not] a constitutional right comparable to the right to
counsel"). So it is here: a circumstance beyond the control of
the parties and the district court rendered the empaneled jury
unconstitutional. Although the defendants were entitled to waive
their right to a constitutional jury, they had "no absolute right
to proceed with a jury of less than twelve." Parker v. United
States, 507 F.2d 587, 589 (8th Cir. 1974); see United States v.
Ruggiero, 846 F.2d 117, 124 (2d Cir. 1988) (concluding that "a
court can grant a mistrial even where the defendant files a motion
to proceed with a jury of eleven"). They needed the consent of
both the government and the district court, and that consent was
not forthcoming.
We have been unable to find a case directly on point.
But we think that a fair analogy can be drawn to cases in which
courts of appeals have found no double jeopardy bar when a trial
- 19 - judge refused to allow a case to continue to verdict with a jury
that had shrunk to eleven members. See Parker, 507 F.2d at 589-
90 (finding that trial judge had discretion to declare mistrial
when one of three defendants refused to consent to jury of eleven);
United States v. Potash, 118 F.2d 54, 56 (2d Cir. 1941) (explaining
that when one juror became incapacitated, "the court had discretion
to discharge the jury, even if both parties had consented . . . to
proceed with the reduced number"); Gardes v. United States, 87 F.
172, 177 (5th Cir. 1898) (finding manifest necessity for mistrial
due to juror's death when trial court declined to allow parties to
proceed with jury of eleven).
The severance cases on which the defendants rely are
inapposite. When a mistrial is unavoidable with respect to one
defendant in a partially completed two-defendant trial,
considerations of judicial economy, without more, cannot justify
the trial judge's refusal to sever the other defendant and allow
him to continue separately to a verdict with an already-empaneled
jury. See, e.g., Chica, 14 F.3d at 1532-33. Those cases rest
solidly on the proposition that "judicial economy, standing alone,
does not support a finding of manifest necessity." Id. (collecting
cases). In the last analysis, the court's interest in judicial
economy cannot outweigh a defendant's valued right to continue to
a verdict with an already-empaneled jury.
- 20 - Here, however, the finding of manifest necessity does
not rest to any degree on considerations of judicial economy. The
district court had no viable option to allow Garske, Gottcent, and
Sedlak to proceed with the already-empaneled jury. Accordingly,
this is not a case in which the district court may be said to have
put its interest in judicial economy above the defendants' valued
right to double jeopardy protections.
Instead, the district court's rationale for the
declaration of a mistrial was the unavailability of the twelfth
juror (due to circumstances beyond the parties' control). This
rationale strongly supports a finding of manifest necessity, and
the severance cases do not diminish the strength of that support.
The short of it is that it was an error of law for the
district court to apply the manifest necessity standard to the
government's decision to withhold consent to a jury of eleven.
The correct approach would have been for the court to have inquired
whether there was manifest necessity for the declaration of a
mistrial and, if so, to inquire whether the government helped to
bring about that manifest necessity through some misconduct or
purposeful instigation. The record makes the answers to these
inquiries pellucid.
We start with manifest necessity itself. In determining
whether there was manifest necessity for a mistrial, it is useful
to consider three interstitial factors: "(1) whether the district
- 21 - 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."
McIntosh, 380 F.3d at 554 (citing Simonetti, 998 F.2d at 41).
These factors, though, "serve only as a starting point." Id.
"Each case is sui generis and must be assessed on its idiosyncratic
facts." Id.
In this instance, it is nose-on-the-face plain that
there was manifest necessity for the district court's declaration
of a mistrial: the court was left with a constitutionally
deficient jury of eleven. The court tried to avoid a mistrial by
requesting that the parties consent to a jury of eleven. Cf.
Toribio-Lugo, 376 F.3d at 39 (finding no manifest necessity when
"[t]he court never offered the appellant a choice between
proceeding with eleven jurors or accepting a mistrial"). Once it
became apparent that universal consent would not be forthcoming,
the court explored the possibility of delaying the trial
indefinitely. But such an alternative was not feasible, the court
reasonably concluded, given the unpredictability of how long Juror
12 would be unavailable and the difficulties inherent in attempting
to supervise the remaining eleven jurors in the interim. Seeking
additional ideas, the court solicited the parties — but none of
them offered any helpful suggestions.
- 22 - Nor did the court act rashly. It mulled the mistrial
decision over the course of several days and decided upon a course
of action only after requesting consent from all parties and
seeking their input on potential alternatives. The court
recognized that it had no power to force either side to proceed
to verdict with eleven jurors. As the court aptly observed, its
"[h]ands [were] tied." Ackerly, 323 F. Supp. 3d at 192.
"Where, as here, 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. We
thus hold that there was manifest necessity for the district
court's carefully reasoned decision to declare a mistrial.
This brings us to the matter of whether the government's
decision to withhold its consent to proceeding with a jury of
eleven constituted either misconduct or purposeful instigation of
a mistrial. On its face, that decision was not misconduct: it
was the government's prerogative under Rule 23 to decline to
consent to a jury of less than twelve. See Fed. R. Crim. P.
23(b)(2). The slightly closer question is whether the government's
decision to withhold its consent, knowing that a mistrial would
ensue, was the functional equivalent of purposeful instigation of
a mistrial. We think not.
In conducting this inquiry, intent is a central element.
Even when a prosecutor's conduct is the but-for cause of a
- 23 - mistrial, such conduct — including that which "might be viewed as
. . . overreaching" — does "not bar retrial absent intent on the
part of the prosecutor to subvert the protections afforded by the
Double Jeopardy Clause." Kennedy, 456 U.S. at 675-76; see
McIntosh, 380 F.3d at 557 (explaining that "prosecutorial error or
even prosecutorial harassment that results in a mistrial will not
unlatch the double jeopardy bar in the absence of the intent to
cause a mistrial" (citing Creighton v. Hall, 310 F.3d 221, 227
(1st Cir. 2002))). It follows that the government's knowledge
that withholding consent to move forward with a jury of eleven
would cause a mistrial is not enough to bar a retrial absent an
intent to abridge the defendants' double jeopardy rights. Here,
we discern no indication of any such intent.
To begin, the removal of Juror 12 was brought about by
his wife's sudden illness, not by any act attributable to the
government or within its control. As the district court
acknowledged, "it is unfair to say that [the government] caused
the mistrial any more than [it is to say] that Defendant Ackerly
forced the mistrial, as both were exercising a right granted to
them by Rule 23." Ackerly, 323 F. Supp. 3d at 194 (citation and
internal quotation marks omitted). Moreover, the district court
made explicit findings that "the government's conduct [was] not
infected with any hint of improper motive," id., and that the
government had done "nothing reproachable or in bad faith," id. at
- 24 - 203. To cinch the matter, the court found that this was not a
case in which the government "refused consent to go forward with
eleven jurors because it was not sanguine about its chances of
winning a conviction." Id. at 194.
We think it important that, in evaluating the
government's preference to try all four defendants together, the
district court found only that "the government's decision to
withhold consent was influenced by a desire to submit all four
defendants to the jury for a verdict." Id. at 202. Merely being
"influenced" by such a legitimate desire does not evince an intent
to instigate a mistrial, particularly where, as here, the district
court has made no finding that the number of jurors was irrelevant
to the government's decision. In short, this is not a case in
which the record indicates either that the government's exclusive
motivation in withholding consent was to evade severance (a goal
Rule 23(b)(2)(B) does not serve) or that the government had no
bona fide interest in asserting its right to a jury of twelve (the
interest underlying Rule 23(b)(2)(B)).
The district court's findings are supported by the
record and, thus, are not clearly erroneous. Cf. United States v.
Flete-Garcia, 925 F.3d 17, 26 (1st Cir. 2019) (stating that "[i]f
two plausible but competing inferences may be drawn from particular
facts, a [district] court's choice between those two competing
- 25 - inferences cannot be clearly erroneous"). Consequently, we are
bound to accept them. See Simonetti, 998 F.2d at 42.
The defendants have a fallback position: they contend
that the government took "unfair advantage of a mistrial" by
withholding consent to proceed with eleven jurors after having
"enjoyed a full view of [the defendants'] defenses." Such an
advantage was evidenced at Ackerly's retrial, the defendants say,
since "the government demonstrated that it had learned from its
lapses in the first trial" by not calling several witnesses whose
credibility had been undercut on cross-examination.
This contention is composed of more cry than wool. As
the government accurately explained, the district court had
allotted twenty hours of trial time per side in the original trial
but reduced that amount to eleven hours per side for Ackerly's
retrial. As a result, the government had "to cut almost half of
its previous trial presentation." It is pure speculation to
suggest that the government's use of this reduced time was unfairly
advantaged by the earlier trial proceedings. We say "unfairly"
because any time that a mistrial occurs near the end of a case,
each side will have had a preview of the other's case. In other
words, the purported advantage works both ways. Here, for
instance, the defendants have previewed the government's case and
are now better positioned to defend against it.
- 26 - To sum up, the right to trial by a jury of twelve is a
right that is shared by the government and the defense. The
government was entitled under Rule 23 to withhold its consent to
an eleven-person jury and made a fully permissible election. As
the district court acknowledged, "Rule 23 permits the government
to exercise its right to withhold consent without requiring any
explanation or justification of its reasons for doing so."
Ackerly, 323 F. Supp. 3d at 194. Here, though, the government was
not shy about its reasons: the government's exercise of its right
to withhold consent under Rule 23(b)(2)(B) was entirely consistent
with its long-held and staunchly asserted position that the
interests of justice would best be served by trying all the
defendants together.4 The government had no role in causing the
unavailability of the twelfth juror, and we do not think that it
should be given the Hobson's choice of trying three of the indicted
coconspirators apart from the fourth with a jury of eleven or not
at all. When — as in this case — the government's reasons for
4 Even while this appeal was pending, the government persisted in trying to keep the four defendants together. To that end, it moved under 18 U.S.C. § 3161(h)(7)(A) to exclude from Ackerly's speedy trial calculations the time that would elapse until the appeal was resolved. Ackerly opposed the motion and the district court denied it, scheduling Ackerly's trial to begin on January 7, 2019. The government twice moved for reconsideration, repeatedly imploring the district court to delay Ackerly's trial and preserve the possibility of trying all four defendants together. The court denied both motions and went ahead with Ackerly's case. Ackerly was convicted on January 15, 2019, following a week-long jury trial.
- 27 - withholding its consent under Rule 23(b)(2)(B) are completely
above-board, double jeopardy principles should not prevent the
government from retrying the defendants. Elsewise, "the ends of
public justice would . . . be defeated." Perez, 22 U.S. at 580.
To say more would be to paint the lily. Because the
district court's decision to declare a mistrial rested on manifest
necessity and because that mistrial was not the product of any
purposeful instigation or other government misconduct, double
jeopardy principles do not prohibit the government from retrying
Garske, Gottcent, and Sedlak.
IV. CONCLUSION
We need go no further. For the reasons elucidated above,
we reverse the order dismissing the indictment as to Garske,
Gottcent, and Sedlak and remand for further proceedings consistent
with this opinion.
Reversed and remanded.
- 28 -