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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-10938 ________________________
D.C. Docket No. 1:11-cr-20678-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT DAVIS, a.k.a. Rob,
Defendant - Appellant.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(February 12, 2013) Case: 12-10938 Date Filed: 02/12/2013 Page: 2 of 17
Before CARNES and COX, Circuit Judges, and RESTANI, * Judge.
CARNES, Circuit Judge:
The defendant himself described the events leading up to this appeal when
he told the judge, “Sir, I don’t see how you’re going to go forward with this trial.
It’s turmoil.” But there was more than just turmoil. With two troubled jurors
wanting to be excused and no alternates to replace them, and with a problem
defendant stirring the brew, there was “[d]ouble, double, toil and trouble.”1 The
pot began to simmer in jury selection and boiled over during the trial, after
jeopardy had attached. The double trouble produced a mistrial over the
defendant’s objection, raising the specter of double jeopardy.
I.
Robert Davis and five codefendants were charged in a 16-count indictment
with various offenses arising out of their participation in seven armed robberies.2
After Davis’ trial was severed from those of his codefendants, jury selection began.
The district court advised the prospective jurors that they would be required to
* Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by designation. 1 William Shakespeare, Macbeth, act 4, sc. 1. 2 Specifically, Davis was charged with conspiracy to interfere with commerce by threats or violence by committing a Hobbs Act robbery; seven counts of substantive Hobbs Act robbery for committing armed robberies at a Shell gas station, a Family Dollar store, the Doral Ale House, a Farm Store, two CVS pharmacies, and a Wendy’s restaurant; seven counts of using and carrying a firearm in connection with each of the robberies; and one count of being a previously convicted felon in possession of a firearm and ammunition. 2 Case: 12-10938 Date Filed: 02/12/2013 Page: 3 of 17
serve from 9 a.m. to 5 p.m. each day and asked if any of them could not do that.
Danella Bedford, a dance instructor, told the court that she would have a problem
serving during that time because she was paid by the hour and would not be paid
unless she was at work. Later, when the court asked if there was any other reason
why a person could not serve as a juror, Virgena Clerjuste raised her hand and
responded, “My English is not perfect,” which proved to be an understatement.
Davis’ counsel tried to strike Bedford for cause because she had indicated
that jury service would cause her a financial hardship, but the court would not
excuse her on that basis and Davis’ counsel did not use a peremptory challenge to
remove her. Clerjuste was seated on the jury without objection or motion from
either party. A jury of twelve was ultimately empaneled, but after removal of
some venire members for cause and others through peremptory strikes there were
none left to serve as alternates. The court expected that barely enough jurors
would be enough but that expectation proved to be more hopeful than realistic.
The trial began and the Assistant United States Attorney gave his opening
statement to the jury. Then the proceedings were halted because Davis had given
his counsel a pro se motion that he wanted presented to the court. The problem
was that the court would not accept the motion from Davis himself because he was
represented by counsel, and Davis’ counsel refused to file the motion for reasons
he explained to his client off the record. That problem led to Davis telling the
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court that he was not satisfied with his two appointed counsel and wanted to
represent himself. The court advised Davis against doing that, but he insisted.
After the court conducted a colloquy as required by Faretta v. California, 422 U.S.
806, 95 S.Ct. 2525 (1975), Davis was allowed to represent himself. Davis did
agree with the court’s suggestion that he allow his appointed counsel to serve as
standby counsel for him during the trial. Throwing another problem into the pot,
Davis also told the court that he wanted to go back to his cell for the remainder of
the trial, and he turned down an offer that would have allowed him to monitor the
proceedings from his cell.
Recognizing the difficulty of the issues raised by Davis’ desire to absent
himself from the trial, the court recessed for an early lunch break to do some
research and decide how to proceed. During the recess more problems bubbled to
the surface. As other jurors were leaving the courtroom, juror Bedford asked to
speak privately with the judge. She was permitted to do so and told the judge that
she felt that “the financial burden is going to be too much to be here for these
days.” The judge responded that he had already considered that problem when she
mentioned it during voir dire. But Bedford persisted, protesting that she would
lose about $1000 in income and was seriously concerned about her finances.
The court then asked counsel to approach for a sidebar discussion, although
Davis stayed behind and was not present for the discussion. Bedford explained to
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the court and to the attorneys that she worked for a dance conservatory, and
because of the hours she needed to be at work she was only available to serve as a
juror until 12:30 in the afternoon. The court asked one of Davis’ standby counsel
if he had a response, and he responded that he was “in an awkward position”
because he wasn’t sure if he was still representing Davis.
The court then asked Bedford to step aside so that juror Clerjuste, who had
also remained in the courtroom when the other jurors went to lunch, could
approach. Clerjuste told the court, “Like I said, I don’t understand a lot of things.
My English is not really good. This is something that I don’t understand but--”
The court cut her off by asking if she had been able “to understand our questions,”
and she responded, “Not everything.” The court then asked the AUSA if he had
anything to say about that problem, and he suggested selecting two replacement
jurors and some alternates, even though the trial had begun. Although there were
no members of the original jury venire left to choose from, the deputy clerk
informed the court that twelve new prospective jurors could be brought in by 2:00
that afternoon.
The court then spoke with Davis, telling him that “two jurors have indicated
. . . one for financial reasons . . . and one for language reasons, that they don’t think
they can continue to serve as jurors.” The court asked if Davis or the AUSA had a
response, and Davis said that he did not. The AUSA again suggested finding
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replacement jurors. The court said that it was inclined to do that, but asked Davis
if he would agree to proceeding with a jury of fewer than twelve members. He
objected to doing so. The attorneys and judge then broke for lunch.
After they returned to the courtroom following lunch, the court spoke with
Davis and counsel for both sides outside the presence of the jury:
I haven’t had a chance to speak with anybody, counsel for either side or the defendant, but you know, given the posture of the case when last we left, we had two jurors ask to come to sidebar, one of them virtually in tears or on the verge of tears, explaining that her jury service would cause significant financial hardship to her. I can’t remember exactly what her words were . . . but it was to a degree that at least in my observation she was not going to be focused on the trial and was going to not have the degree of concentration that I think would be necessary to be a fair and impartial and qualified juror.
The other juror indicated that she was having a problem understanding the proceedings because of the language barriers, and for that reason, I think it was necessary to excuse both of the jurors which leaves us with 10 jurors; and because of the number of jurors that had been called and the number of jurors that have been excused for cause or for peremptory challenges, we were not able to select any alternate jurors.
I raised with Mr. Davis the possibility of whether he would consent to a jury of 11 and he indicated that he would not and I’m not sure that even had he agreed, it would make a difference since we didn’t have 11 jurors anyway.
I considered calling in additional jurors to see if we could impanel additional jurors to have a panel of 12 with alternates, but over the lunch hour, it seems to me that it’s probably not a good alternative, because we had opening statements or an opening statement from the government.
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Davis interjected that he didn’t think it was “in [his] best interest to re-elect two
more jurors.”
The court agreed with Davis, and told him that “the only alternative that we
can proceed on then is, because of the absence of a jury of 12, is to declare a
mistrial and begin jury selection again with a new jury tomorrow.” Davis objected
to the mistrial on the ground that it would violate the Double Jeopardy Clause.
The court noted his objection, and ordered the parties to reconvene to start the trial
over the next day “with [a] clean slate.” The court and the parties understood that
the court had declared a mistrial.
Davis’ standby counsel immediately filed a motion to dismiss the indictment
under the Double Jeopardy Clause, arguing that no manifest necessity had existed
for a mistrial. The court denied the motion. In doing so, the court first explained
that it had excused juror Bedford because when she approached the sidebar, “the
level of her being distraught . . . led [the court] to conclude that this was not a juror
that was going to be able to focus and give the trial and the evidence presented the
attention it deserved. . . . It serves no purpose to have a juror who is distracted . . .
[by] her financial circumstances.”
As to juror Clerjuste, the court said:
[W]hen a juror . . . [says] that [she] can’t understand the proceedings, and bear in mind that when she came to us the second time, it had gone beyond some of the preliminary voir dire, the general voir dire. So, she had an opportunity to participate more in the proceedings to 7 Case: 12-10938 Date Filed: 02/12/2013 Page: 8 of 17
the point that she felt that she could not continue, and I don’t know if the fact that she had now been present during the opening statement of the government counsel and perhaps concluded that she was not able to follow his otherwise erudite opening, that she felt obligated to bring it to the court’s attention.
The court reasoned that where two jurors are unable to serve and the defendant
himself has objected to a jury of less than twelve, “manifest necessity is present
because there is no other alternative.”
This is Davis’ interlocutory appeal of the court’s denial of his motion to
dismiss the indictment on double jeopardy grounds. See United States v.
Benefield, 874 F.2d 1503, 1505 (11th Cir. 1989) (“A denial of a motion to dismiss
based on double jeopardy grounds is an appealable final order.”).
II.
Davis contends that the district court’s decision to declare a mistrial had not
been based on a manifest necessity and, as a result, that the court should have
granted his motion to dismiss the indictment because a second trial would violate
the Double Jeopardy Clause. We review the district court’s denial of Davis’
motion to dismiss the indictment only for abuse of discretion, United States v.
Chica, 14 F.3d 1527, 1530 (11th Cir. 1994), but if the court’s decision to declare a
mistrial was not based on manifest necessity, it was an abuse of discretion not to
dismiss the indictment on double jeopardy grounds. United States v. Butler, 41
F.3d 1435, 1441–42 (11th Cir. 1995).
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The Fifth Amendment 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.
“Jeopardy attaches when the jury is empaneled and sworn,” and “[f]rom that point
forward, the defendant has a constitutional right, subject to limited exceptions, to
have his case decided by that particular jury.” Chica, 14 F.3d at 1531 (alterations,
quotation marks, and citations omitted). One of those exceptions applies when
“taking all the circumstances into consideration, there [was] a manifest necessity
for the [mistrial], or the ends of public justice would otherwise [have been]
defeated” by continuing the trial. United States v. Perez, 22 U.S. 579, 580 (1824).
The manifest necessity doctrine “is designed to accommodate the defendant’s right
to have his trial completed by the first competent tribunal with the public’s interest
in fair trials designed to end in just judgments.” United States v. Gordy, 526 F.2d
631, 635 (5th Cir. 1976) (quotation marks omitted).
Partly because this doctrine accommodates competing interests, the term
defining the doctrine is not to be defined literally. See id. The Supreme Court has
instructed us that while “manifest necessity” describes the magnitude of the
government’s burden, it is “not . . . a standard that can be applied mechanically or
without attention to the particular problem confronting the trial judge,” and “the
key word ‘necessity’ cannot be interpreted literally.” Arizona v. Washington, 434
U.S. 497, 506, 98 S.Ct. 824, 830–31 (1978). In other words, this is not a
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dictionary-defined doctrine, but a decision-defined one with the result depending
on the circumstances of each individual case. See also Chica, 14 F.3d at 1531
(“Whether manifest necessity exists is a fact-intensive inquiry, and is not
susceptible to a mechanical formulation.”) (quotation marks and citations
omitted). Our task is to decide whether the district court exercised “sound
discretion” in declaring a mistrial, Washington, 434 U.S. at 514, 98 S.Ct. at 835,
and in order to determine that “we review the entire record in the case without
limiting ourselves to the actual findings of the trial court.” Chica, 14 F.3d at 1531
(alteration and quotation marks omitted).
Important to our inquiry in this case is Federal Rule of Criminal Procedure
23(b). That rule requires that a jury be composed of twelve people, subject to only
two exceptions that apply before deliberations begin. Fed. R. Crim. P. 23(b). One
of those exceptions is that the parties may before trial stipulate in writing to a jury
of fewer than twelve, Fed. R. Crim. P. 23(b)(2)(A), and the other is that after the
trial begins they may stipulate in writing to a jury of fewer than twelve if the court
finds it necessary to excuse a juror “for good cause,” Fed. R. Crim. P. 23(b)(2)(B).
See also Fed. R. Crim. P. 23 advisory committee notes. Unless one of those two
exceptions applies, a federal criminal case cannot be submitted for decision to a
jury with fewer than twelve members.
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Because of Rule 23(b), the trial in this case could not continue with fewer
than twelve jurors unless Davis gave his written consent. He did not consent. He
objected. And because there were no alternate jurors, the trial could not continue
once any juror was excused without a replacement juror. The court explained that
it was not a good idea to empanel more jurors because the AUSA had already
made an opening statement. Davis agreed, stating: “About the two jurors,
jeopardy is attached when jurors are sworn in. I’m entitled to those twelve jurors.
So, I don’t feel that’s in my best interest to re-elect two more jurors.”
Davis does not contest the point that once jurors Bedford and Clerjuste, or
either one of them, were excused there was manifest necessity for a mistrial, nor
could he sensibly contest that point after affirmatively asserting his right not to be
tried by a smaller jury and insisting that he did not want any new jurors empaneled.
When Bedford and Clerjuste walked out of the courtroom, the possibility of a
twelve-member jury walked out with them. And when Davis objected to
proceeding with fewer than twelve jurors and insisted that it was not in his best
interest for the court to empanel any more, a mistrial was the only possible result,
which is to say it was necessary not only in the doctrinal sense but even in the
dictionary sense.
If Davis’ argument contested that conclusion, it might with a little license be
said to resemble “a tale told by an idiot” that is full of nothing more than “sound
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and fury.” 3 But his argument is better than that, even if it does end up “signifying
nothing” that resembles reversible error. Davis’ argument is that the decision to be
judged against the manifest necessity standard is not the declaration of a mistrial
but the decision to excuse the two jurors which required it. Instead of contesting
the necessity of the mistrial itself, he contests the necessity of the actions that made
the mistrial necessary. He dresses up his argument in the language of the two
actions being “intertwined,” but its essential point is that once the court took the
first action (excusing the jurors), the second (declaring a mistrial) was preordained.
Davis’ syllogisms do not flow well, because the removal of the jurors alone
did not cause the mistrial. What caused the mistrial was the removal of the jurors
plus Davis’ objection to proceeding with a smaller jury. And Davis’ argument
assumes that the focus can be shifted from the necessity of the mistrial itself to the
necessity of one of the two actions (the court’s excusing the jurors) that combined
with his own actions (his objecting to a smaller jury and opposing empanelment of
additional jurors) made the mistrial a necessity. Maybe it can be, or maybe it
cannot be. We need not decide because, even indulging Davis’ premise that his
insistence on a jury of twelve does not matter, and also indulging his premise that
the manifest necessity question should be asked about the action that reduced the
jury to fewer than twelve members, he still loses.
3 William Shakespeare, Macbeth, act 5, sc. 5.
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A.
The decision to remove a juror is generally “entrusted to the sound
discretion of the trial judge whenever facts are presented which convince the trial
judge that the juror’s ability to perform [her] duty as a juror is impaired.” United
States v. Fajardo, 787 F.2d 1523, 1525 (11th Cir. 1986) (quotation marks omitted).
As we just discussed, Davis argues that we must review the dismissals of Clerjuste
and Bedford for manifest necessity because those decisions – along with his
objections to using any replacement jurors and to proceeding with fewer than
twelve jurors – made the mistrial inevitable. Assuming that Davis is correct, his
argument still fails because the dismissal of Clerjuste was manifestly necessary.
Although Davis asserts that the court’s discussion with Clerjuste was
“perfunctory,” and that “more was required to establish that [she] could not
continue to serve for language reasons,” it is hard to imagine what more Clerjuste
could have said or done to show that she could not continue as a juror. She had
already made the court aware of a potential language barrier during voir dire. Then
she voluntarily approached the court after the government’s opening statement,
telling the judge several times that she could not understand the proceedings. She
told the court, “I don’t understand a lot of things,” and “[t]his is something that I
don’t understand.” The court asked her if she had been able “to understand our
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questions,” and she responded, “Not everything.” It is, of course, important that
jurors be able to understand everything that is said during a trial.
Davis further contends that Clerjuste’s “bald statement about lacking
English language proficiency is not dispositive” because she was able to
understand and answer questions during voir dire. While Davis might be correct
that Clerjuste demonstrated some proficiency in English during voir dire, that does
not mean that the court erred in finding that she could not understand the English
language well enough to continue as a juror. During voir dire prospective jurors
had been required to answer only basic questions about their backgrounds, such as
their name, marital status, and occupation. As the district court explained, when
Clerjuste brought her language problem to the court’s attention for the second time,
the proceedings had gone beyond voir dire. The government had made its opening
statement discussing this sixteen-count indictment case, which involved seven
separate robberies. And, as the court noted, it may have been that “erudite
opening” that convinced Clerjuste that she could not continue. For whatever
reason, Clerjuste did take the initiative in informing the court that she could not
understand “a lot of things.” Under the circumstances, we cannot say that the
district court’s decision to dismiss Clerjuste from the jury was anything short of
manifestly necessary.
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Just how manifestly necessary it was is shown by the only proposal Davis
has been able to come up with about how Clerjuste could have been kept on the
jury notwithstanding her serious problems understanding English. He contends
that instead of dismissing her the court could have had Clerjuste raise her hand
every time she did not understand something, which could then be explained to
her, presumably in simpler English (or maybe hand gestures?). That suggestion is
obviously not feasible, especially in a trial involving multiple crimes and multiple
charges including one count of conspiracy to commit armed robbery, seven
substantive counts of armed robbery of seven different businesses, seven counts of
carrying and using a firearm in connection with those robberies, and one count of
being a felon in possession of a firearm. Who would do the explaining during the
trial? What if one side or the other objected to the explanation? And who would
have the job of explaining things in simpler terms when Clerjuste raised her hand
during deliberations? 4
Because the dismissal of Clerjuste was manifestly necessary, we do not
reach the court’s dismissal of Bedford. As we have already discussed, the trial
could not proceed with fewer than twelve jurors unless Davis stipulated to that in
4 Davis contends that the district court erred in excluding him from the sidebar discussion about the Clerjuste problem, because he was representing himself at that point and was not able to suggest alternatives to dismissing her. Even if it were error to “exclude” Davis from the sidebar (the record shows that counsel were invited but not that Davis was instructed to stay away), it was harmless error. Since the sidebar, Davis and his appellate counsel have had months to come up with plausible alternatives to dismissing Clerjuste from the jury, and they have not been able to do so. 15 Case: 12-10938 Date Filed: 02/12/2013 Page: 16 of 17
writing, which he did not. See Fed. R. Crim. P. 23(b). Even if the court had not
excused Bedford, the dismissal of Clerjuste would still have resulted in a jury of
fewer than twelve, rendering moot any error as to the dismissal of Bedford. A
mistrial is a mistrial whether declared because the jury is short one member or two.
And, for the reasons we have discussed, this was not just a mistrial but a manifestly
necessary one. The district court did not abuse its discretion in refusing to dismiss
the indictment on double jeopardy grounds.
B.
Davis also contends that the district court failed to comply with the notice
and consultation requirement of Federal Rule of Criminal Procedure 26.3 before
declaring a mistrial. That rule requires that “[b]efore ordering a mistrial, the court
must give each defendant and the government an opportunity to comment on the
propriety of the order, to state whether that party consents or objects, and to
suggest alternatives.” Fed. R. Crim. P. 26.3. However, we have held that
compliance with Rule 26.3 is only one factor to be considered in determining
whether a trial judge exercised sound discretion in declaring a mistrial. United
States v. Berroa, 374 F.3d 1053, 1058 (11th Cir. 2004) (“Consistent with the
manifest necessity test, the extent to which a Rule 26.3 violation indicates a lack of
sound discretion must be considered and resolved based upon the individual and
varying circumstances of each case.”).
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By the time the district court declared the mistrial, Davis himself had been
given an opportunity to address whether one should be declared, and he had been
given an opportunity to object. He did express his views and he did object. Davis
had already objected to proceeding with fewer than twelve jurors and to
empaneling new jurors. Apparently, the only alternative that would satisfy him
was to use the twelve original jurors. That was impossible, because the district
court had already determined that Clerjuste could not understand English well
enough to serve. Even though the court could have conducted a more formal or
structured colloquy with Davis before declaring a mistrial, given the circumstances
its failure to do so was not reversible error.
This case having strutted and fretted its hour upon the appellate stage, we
conclude that the curtain should be dropped, at least on this Act of it.
AFFIRMED.