Double Jeopardy - Mistrials; Reversals and Dismissals

Smith v. Massachusetts, 543 U.S. 462 (2005)

The trial judge granted a directed verdict at the close of the state’s case on one count of the indictment. At the close of the defendant’s case, however, the defendant’s case the judge reconsidered and allowed this count to go to the jury. The Supreme Court held that this violated the double jeopardy clause. Though reconsideration of a directed verdict motion may be a rule that can be enacted by the state, there was no such procedure in Massachusetts and therefore, the court’s earlier ruling could not be reconsidered after the defendant began his case.

Martinez v. Illinois, 134 S. Ct. 2070 (2014)

A jury was empaneld and sworn, but the prosecutor refused to participate in the trial because the state was not ready. The trial court directed a verdict of not guilty. The Illinois appellate court held that in this situation, the defendant was not really ever at risk of a conviction and thus, jeopardy had not attached. The Supreme Court unanimously reversed. Once the jury was empaneled and sworn the defendant was in jeopardy. The Double Jeopardy Clause barred a new trial.

Blueford v. Arkansas, 132 S. Ct. 2044 (2012)

The defendant was charged with murder. The jury was instructed to first consider the offense of capital murder; if the jury found him not guilty of that offense, the jury should consider first degree murder; if the jury found him not guilty of that offense, the jury should consider manslaughter. During deliberations, the jury announced that it was deadlocked. The jury was brought into the courtroom and announced that it was unanimous for not guilty of capital murder and first degree murder, but deadlocked on the lesser charge of manslaughter. The judge issued an Allen charge and the jury then returned to deliberate. The jury then sent in another note declaring that they were deadlocked and a mistrial was declared. The U.S. Supreme Court held that the defendant could be retried on all charges: There was no “verdict” on the capital or first degree murder charge. A jury’s “announcement” does not constitute a verdict and there was nothing preventing the jury from reconsidering its initial vote on the greater offenses, during the continued deliberations. Therefore, there was no final verdict and no bar to retrying the capital and first degree murder charges.

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003)

In Pennsylvania, if the sentencing jury is unable to reach a unanimous verdict that the death penalty is appropriate, the judge will then enter a life sentence. In this case, the jury was deadlocked and a life sentence was ordered by the trial court. The defendant then appealed his conviction and the appellate court reversed. The state again sought the death penalty when the case was re-tried. The Supreme Court held that this was permissible. Had the first jury unanimously returned a life sentence, the defendant could not be sentenced to death on retrial. But because the first jury did not reach a verdict, the Double Jeopardy Clause was not violated. See Richardson v. United States, 468 U.S. 317 (1984).

Lockhart v. Nelson, 488 U.S. 33 (1988)

The double jeopardy clause allows retrial of a defendant when the appellate court determines that a defendant’s conviction was based in part on evidence which was erroneously admitted and that the remaining evidence was insufficient to support a conviction. A retrial is permitted to enable the defendant the opportunity to obtain fair adjudication of his guilt with legal evidence.

Richardson v. United States, 468 U.S. 317 (1984)

The Double Jeopardy Clause does not apply in the context of a retrial of mistried counts, because a retrial is a continuation of the original jeopardy.

Monge v. California, 118 S.Ct. 2246 (1998)

In California, a person convicted of a crime who has previously been convicted of a prior violent offense receives a considerably harsher sentence. At the sentencing proceeding, the state must prove the prior offense pursuant to the rules of evidence and with proof beyond reasonable doubt. The state offered insufficient evidence and the appellate court reversed, but remanded so the state could try again. This was permissible under the Double Jeopardy Clause (though the rule is otherwise if the state is seeking the death penalty, Bullington v. Missouri, 451 U.S. 430 (1981)). The Double Jeopardy Clause does not apply to non-capital sentencing proceedings, because a sentencing proceeding does not place the defendant “in jeopardy” for an offense.

Renico v. Lett, 130 S. Ct. 1855 (2010)

Relying on the AEDPA standard, the Supreme Court held that the Michigan Supreme Court did not act unreasonably in concluding that the state trial court acted within its authority in granting a mistrial after four hours of deliberations when the jury indicated that it was deadlocked. The Michigan Court applied the correct standard and its decision was not an “unreasonable application of clearly established Federal law.” There is no minimum time that the jury must be allowed to deliberate, and there is no constitutional requirement that the jury be questioned prior to the declaration of a mistrial.

United States v. Thompson, 690 F.3d 977 (8th Cir. 2012)

The trial judge granted a judgment of acquittal after hearing argument as to one count for one defendant. The defendant rested without putting on evidence. Another defendant then began putting on his case. The trial judge then called a recess and changed his mind, allowing the one count to proceed to verdict. The Eighth Circuit, relying on Smith v. Massachusetts and distinguishing United States v. Hill, 643 F.3d 807 (11th Cir. 2011), held that this violated double jeopardy. In Hill, the judge changed his mind shortly after having announced his decision and before any other proceedings occurred.

United States v. Alvarez-Moreno, 657 F.3d 896 (9th Cir. 2011)

The defendant was charged with transporting an illegal alien for profit. The trial was conducted as a bench trial. After the bench trial was concluded, the judge realized that a proper waiver of a jury trial had not been accomplished. The judge then entered and order granting a new trial pursuant to Rule 33. This was not appropriate, however, because the defendant never filed a motion for a new trial. The judge then entered an Order mistrying the case. Before a retrial was initiated, the defendant filed a motion to dismiss on double jeopardy grounds. The Ninth Circuit holds that a retrial was not permissible, because the defendant never requested a mistrial and a manifest necessity was not present. Of course, if the defendant appealed the conviction resulting from the bench trial, a retrial would be permitted.

United States v. Fisher, 624 F.3d 713 (5th Cir. 2010)

The defendant’s trial started, but a two-day adjournment was necessitated by a problem with discovery furnished to the defense. During that two-day interim, government witnesses (including the drug laboratory chemist) became unavailable because of other cases at which he was required to testify and a seminar he needed to attend. The court then granted a mistrial over the objection of the defense. There was no manifest necessity for granting the mitrial and the double jeopardy clause barred re-initiating the prosecution.

United States v. Cornelius, 623 F.3d 486 (7th Cir. 2010)

After a sidebar conference that limited what a witness could say about one defendant’s conduct, the prosecutor asked a question which resulted in the witness saying precisely what he was not supposed to say. The prosecutor claimed that the answer was not responsive to the question that was asked (“Did you have any other suppliers?” to which the witness did not simply answer “yes” but, instead, answered, “Yes, Mike.”). The trial court granted a mistrial. The Seventh Circuit held that an evidentiary hearing was necessary to determine if the question by the prosecutor was designed to goad the defendant into requesting a mistrial. Though the prosecutor objected to the mistrial, and requested a limiting instruction – and this is probative of the prosecutor’s intention – this fact, alone, is not sufficient to conclude that the prosecutor did not intentionally goad the defendant into requesting a mistrial.

United States v. Lara-Ramirez, 519 F.3d 76 (1st Cir. 2008)

Without the consent of the defendant, the trial court granted a mistrial when a Bible was seen in the jury deliberation room and a juror said the foreman said that the jurors should consider what God says. Declaring a mistrial was not a manifest necessity. Retrying the defendant would violate the double jeopardy clause.

United States v. Razmilovic, 507 F.3d 130 (2nd Cir. 2007)

Over the objection of defense counsel, the trial court declared a mistrial when the jury announced that they were deadlocked (after three days of deliberations). There was no manifest necessity for doing so. The jury only sent in one note of stating that they were deadlocked and no Allen charge had been given. The various factors that should have been considered before declaring a mistrial (length and complexity of trial; jury notes; length of deliberations; Allen charge) did not support this step, in light of the parties’ request that deliberations continue.

United States v. Lewis, 492 F.2d 1219 (11th Cir. 2007)

A defendant who failed to raise a double jeopardy claim in the district court is not forever foreclosed from raising a double jeopardy claim in the appellate court. He must establish, however, that it was plain error to allow the second trial to proceed. The court noted that there is a difference between forfeiting a claim (such as in this case, where the defendant simply fails to raise it, and thus must overcome the plain error standard of review) and affirmative waiver of an issue, which forecloses appellate review. See United States v. Olano, 507 U.S. 725 (1993).

Brazzel v. Washington, 491 F.3d 976 (9th Cir. 2007)

The defendant was charged with attempted murder and, as an alternative, assault. The jury left the attempted murder verdict form blank, but convicted the defendant of assault. There was no elaboration on the blank form. Pursuant to Green v. United States, 355 U.S. 184 (1957), this amounted to an acquittal of the greater offense. On appeal, the conviction was reversed. Back in the trial court, the defendant was prosecuted for attempted murder again. Once again, the jury convicted him of the lesser offense. The Ninth Circuit granted the writ. The defendant should not have been forced to go to trial for the attempted murder charge again. Having been acquitted of that charge, the Double Jeopardy Clause barred a retrial, even if the conviction for the lesser offense was reversed. Forcing him back to trial on that count – even though he was once again acquitted and found guilty of assault – prejudiced his defense to the assault charge.

United States v. Blanton, 476 F.3d 767 (9th Cir. 2007)

After the defendant was found guilty of a firearm offense, he waived his right to a jury as the Armed Career Criminal Act sentencing enhancement phase. The trial court granted his Rule 29 motion with regard to certain offenses. The Ninth Circuit held that the government may not appeal this judgment because of the Double Jeopardy Clause.

Walck v. Edmondson, 472 F.3d 1227 (10th Cir. 2007)

The defendant sought federal habeas corpus relief (§ 2241) to bar the initiation of a state trial that was about to occur, on the basis that a prior mistrial had not properly been declared and the double jeopardy clause barred the state from proceeding. The Tenth Circuit held that federal habeas corpus relief was available to bar the initiation of trial and that Younger v. Harris abstention did not apply.

United States v. Black Lance, 454 F.3d 922 (8th Cir. 2006)

Following the cross-examination of the victim in this assault case, the trial judge told the prosecution that his case just went out the window and that he was dismissing the charges. This amounted to an acquittal, even though the prosecutor had not rested. See Fong Foo v. United States, 369 U.S. 141 (1962).

United States v. Ogles, 440 F.3d 1095 (9th Cir. 2006)

At the conclusion of the government’s case, the trial court granted a judgment of acquittal pursuant to Rule 29, on the basis that in the court’s view, the statute did not cover the conduct in which the defendant engaged. Whether the trial court’s view was correct or not, this amounted to an acquittal based on factual insufficiency of the evidence and a retrial could not be held.

United States v. Serawop, 410 F.3d 656 (10th Cir. 2005)

The defendant was charged with murder, but convicted of voluntary manslaughter. The trial court erred, however, in its instruction to the jury on the law of voluntary manslaughter. A retrial was permitted, but only on the voluntary manslaughter offense. The verdict for the lesser included offense operated as an acquittal of the charged offense. See Green v. UnitedStates, 355 U.S. 184 (1957).

Stow v. Murashige, 389 F.3d 880 (9th Cir. 2004)

Pursuant to 28 U.S.C. § 2241, a defendant facing trial in a state court may file a federal habeas corpus petition seeking to bar the trial on double jeopardy grounds. In this case, the jury returned a verdict finding the defendant guilty of attempted first degree murder, but also noted that the defendant was not guilty of attempted second degree murder. The first degree murder count was reversed by the state appellate court. Retrial on the attempted second degree murder count was barred by the double jeopardy clause.

United States v. Rivera, 384 F.3d 49 (3rd Cir. 2004)

Just prior to the close of the government’s case, a key witness was in the middle of his testimony when court adjourned for the weekend. Over the weekend, the witness broke his leg and was hospitalized. Further delays resulted from the witness’s inability to travel back to the courthouse. Initially, defense counsel requested a mistrial, but this was denied. A couple days later (still waiting for the witness), defense counsel requested that the case go forward without the witness. The judge then declared a mistrial. There was no manifest necessity for doing so and the Double Jeopardy Clause barred further prosecution.

United States v. Patterson, 381 F.3d 859 (9th Cir. 2004)

Fallout from the decision in Ellis, which is annotated below: The defendant in this case entered a guilty plea pursuant to Rule 11(b)(1)(B). The amount of marijuana plants was acknowledged by the government and the defense to be in dispute and would require a hearing at sentencing. After the plea was entered, Apprendi was decided and the government acknowledged that the number of plants became an element of the offense. The district court vacated the plea. The Ninth Circuit held that this was impermissible. Once the plea was entered, only the defendant has the power to withdraw the plea; the court may reject the plea agreement, but it cannot vacate the guilty plea, itself. Vacating the plea in this case violated the Double Jeopardy Clause.

United States v. Toribio-Lugo, 376 F.3d 33 (1st Cir. 2004)

The trial court sua sponte declared a mistrial when one of the jurors failed to appear during the fourth day of trial, and then was informed that the missing juror had also missed part of the prior day’s proceedings. The defense attorney did not consent to the granting of the mistrial. There was no manifest necessity for declaring a mistrial, because defense counsel may have consented to an eleven-person jury. See Fed.R.Crim.P. Rule 23(b)(2)(A).

United States v. Bonas, 344 F.3d 945 (9th Cir. 2003)

The district court judge declared a mistrial after learning that certain jurors were not being paid by their employers and were going to suffer financial hardship as a result of their service. There was no manifest necessity for doing so and further prosecution was prohibited.

United States v. Bordeaux, 121 F.3d 1187 (8th Cir. 1997)

The defendant was charged with attempted aggravated sexual abuse. The jury announced that it could not agree on a verdict on this charge, but found the defendant guilty of the lesser offense of abusive sexual contact by force. The conviction was set aside, because the trial court failed to properly instruct the jury on this lesser offense. Can the defendant be tried for the greater offense? Yes. Distinguishing Green v. United States, 355 U.S. 184 (1957) and Price v. Georgia, 398 U.S. 323 (1970), the court concluded that there was no "implicit acquittal" of the greater offense -- the jury explicitly explained that it failed to reach a verdict on the greater offense -- so the closer analogy was to Richardson v. United States, 468 U.S. 317 (1984), which held that a mistrial caused by a hung jury does not terminate the first jeopardy, and therefore there is no "double" jeopardy when trial commences anew.

United States v. Lynch, 162 F.3d 732 (2d Cir. 1998)

The District Court initially issued a permanent injunction, barring the defendants from obstructing ingress into, or egress from, an abortion clinic. When the defendants allegedly violated the injunction, they were arrested and charged with criminal contempt. Though they acknowledged violating the terms of the injunction, both defendants were acquitted by the District Court judge, who reasoned that the defendants’ religious convictions led him to believe that their conduct was not “willful.” The government appealed. The Second Circuit held that Double Jeopardy barred the appeal of this acquittal.

United States v. Ramirez, 884 F.2d 1524 (1st Cir. 1989)

Because a mistrial was granted without manifest necessity, and because the defendants expressed a desire to continue with the trial despite irregularities in the selection of the jury, the double jeopardy clause prevented the retrial.

United States v. Rivera, 872 F.2d 507 (1st Cir. 1989)

During the deliberations in the defendant’s first trial, the jury indicated that it had reached a verdict on two counts but not on the third. The government accepted guilty verdicts on the two counts and dismissed the third count. Subsequently, the Court of Appeals reversed the conviction on the first two counts. Nevertheless, the government cannot retry the defendant on the third count which had previously been dismissed.

United States v. Huang, 960 F.2d 1128 (2d Cir. 1992)

At the first trial, it was discovered that the interpreter was not properly certified and had at one point been summarizing answers, as opposed to fully interpreting. Two of the four defendants moved for a mistrial, the other two objected to the request for a mistrial. A mistrial was granted. The double jeopardy clause barred a retrial for the two who contested the mistrial. There was no manifest necessity for a mistrial; there was no certainty that the error would have resulted in a reversal (one of the tests of manifest necessity) and the “summary interpreting” was not shown to have been inaccurate.

Love v. Morton, 112 F.3d 131 (3rd Cir. 1997)

Shortly after the defendant’s initial trial, the judge declared a mistrial for personal reasons – his mother-in-law died unexpectedly. The defendant did not consent to a mistrial. Actually, he neither objected, nor consented. Commencing a new trial violated the double jeopardy clause. There was no manifest necessity to declare a mistrial, since a continuance could have been considered, or the use of a substitute judge.

Gilliam v. Foster, 75 F.3d 881 (4th Cir. 1996)

In the last of several trips this case made to the Fourth Circuit, the court again holds that the double jeopardy clause barred the state trial court from trying the defendants following the earlier declaration of a mistrial. The court held that the federal court had the authority to enjoin the state trial where it was determined that the trial would violate the double jeopardy clause of the constitution.

Gilliam v. Foster, 61 F.3d 1070 (4th Cir. 1995)

The defendants’ first state court trial ended in a mistrial at the request of the state when the defense allowed jurors to see pictures from the crime scene which were not formally introduced in evidence. The photos were cumulative of other photos which were admitted in evidence. When the case commenced a second time, over the double jeopardy objection of the defendants, the defendants filed a habeas petition in federal district court, seeking to enjoin the state trial. The district court denied the petition, concluding that there was a manifest necessity for the mistrial. The Fourth Circuit, however, disagreed and entered an order enjoining the trial, which was then in progress, on the grounds that the defendants should not be required to endure a second trial. Following an evidentiary hearing in the lower court, the full court decided that the double jeopardy clause barred a new trial. 63 F.3d 287 (4th Cir. 1995).

United States v. Sloan, 36 F.3d 386 (4th Cir. 1994)

During his opening statement, the attorney for the defendant described the defendant’s Horatio Alger life. Throughout the course of the trial, moreover, the trial court stated that it based evidentiary rulings on the defendant’s asserted intention to take the stand. At the close of the government’s case, however, the defendant opted not to testify. The trial court declared a mistrial. There was no manifest necessity to do so and a retrial was barred by the double jeopardy clause. With regard to the evidentiary rulings, the record demonstrated that the few times the issue of the defendant’s expected testimony was raised, it was when the district court ruled out certain defense-offered testimony, on the basis that such evidence would have to wait until the defendant testified. With regard to the opening statement, the trial court did not entertain options short of declaring a mistrial. Here, unlike in Arizona v. Washington, 434 U.S. 497 (1978), the attorney did not refer to clearly inadmissible evidence. Rather, as in Frazier v. Culp, 394 U.S. 731 (1969), the attorney had a good faith belief in the availability of the evidence which he referred to in the opening statement.

United States v. Shafer, 987 F.2d 1054 (4th Cir. 1993)

During the course of this arson trial, the government introduced evidence that the defendant was in a precarious financial condition. In response to a defendant’s subpoena, a police officer brought to court a box full of documents which had been misplaced in the property room which demonstrated that defendant’s business was in good financial shape. These documents clearly should have been produced pursuant to Brady. The district court promptly declared a mistrial without asking what the defendant’s desire was. This was error and a retrial was barred. There were alternatives to granting a mistrial and the defendant did not move for, or agree to, a mistrial.

United States v. Council, 973 F.2d 251 (4th Cir. 1992)

During the jury’s deliberations, the trial court decided that he had improperly restricted the defendant’s offer of proof on the defense of justification and declared a mistrial. The defendant objected. Declaring a mistrial was not a manifest necessity and a retrial was therefore barred by the double jeopardy clause.

Harpster v. State of Ohio, 128 F.3d 322 (6th Cir. 1997)

The state trial judge declared a mistrial when the defense counsel, cross-examining a state’s witness revealed the possible penalty for the charged offense. There was no manifest necessity for the mistrial and retrying the defendant was barred by the double jeopardy clause.

Terry v. Potter, 111 F.3d 454 (6th Cir. 1997)

The defendant was initially charged with committing wanton or intentional murder under Kentucky state law. The jury convicted him of wanton murder and left the intentional murder verdict form blank. The state appellate court reversed the conviction, holding that “wanton” murder only applies where the intention to commit murder is found, but the wrong person is killed. This holding by the appellate court barred another prosecution for intentional murder. Even though the jury was silent on its findings regarding the intentional murder theory, the court concluded that this amounted to an “implicit acquittal.” See Green v. United States, 355 U.S. 184 (1957).

United States v. White, 914 F.2d 747 (6th Cir. 1990)

The defendant’s first trial was aborted by a declaration of mistrial prompted by the prosecutor’s improper questioning of a witness. A co-defendant moved for a mistrial; the defendant said nothing. Because this defendant did not consent to the declaration of the mistrial and there was no manifest necessity for declaring a mistrial in regard to him, the Sixth Circuit concludes that a retrial of this defendant was barred on double jeopardy grounds.

Taylor v. Dawson, 888 F.2d 1124 (6th Cir. 1989)

The defendant’s initial trial was mistried, but because there was no “manifest necessity” the double jeopardy clause barred a retrial. The initial mistrial was declared because the defense attorney elicited testimony that the victim of the murder had beaten the defendant as well as others and had used drugs. The trial court had indicated that such evidence would not be admissible in the trial. The Sixth Circuit holds that the defense attorney had not been instructed to avoid those topics and, furthermore, Kentucky law specifically permitted the introduction of such testimony.

Saylor v. Cornelius, 845 F.2d 1401 (6th Cir. 1988)

The defendant was charged with murder in an indictment which would have supported a conviction on either a conspiracy or accomplice theory. At trial, the prosecutor introduced evidence which would have supported a verdict of guilty only on an accomplice theory. The judge instructed the jury only on a conspiracy theory. The jury returned a verdict of guilty. The Kentucky State Supreme Court reversed the conviction but permitted a re-trial to allow the State to present its conspiracy theory. The federal court granted habeas relief: Although the State Supreme Court did not hold that the evidence was insufficient to convict the defendant of murder, jeopardy had attached and a re-trial to permit the State to present its conspiracy theory would violate the double jeopardy clause.

United States v. Oseni, 996 F.2d 186 (7th Cir. 1993)

In some cases, such as this one, it is appropriate to conduct an evidentiary hearing to determine if the prosecutor’s conduct in causing a mistrial was intended to do just that – that is, cause a mistrial in order to improve its position in a retrial. If that was the government’s intent, of course, a retrial would be barred by the double jeopardy clause. Oregon v.Kennedy, 456 U.S. 667 (1982). Here, an assistant U.S. attorney was called as a witness and her testimony improperly referred to statements of the defendant’s attorney during preliminary discussions which indicated that the attorney believed the defendant was lying. Whether the witness/prosecutor did this in order to induce a mistrial should have been the subject of an evidentiary hearing at which the prosecutor could be cross-examined.

United States v. Givens, 88 F.3d 608 (8th Cir. 1996)

Shortly after the trial began in this multi-defendant case, the attorney for one defendant notified the court that, in light of one witness’s testimony, he might have to appear as a witness to discredit that witness. The court suggested that a mistrial would be declared and that defendant could retain a new lawyer. The remaining defendants objected. Nevertheless, a mistrial was declared. The Double Jeopardy Clause barred a retrial. Judicial economy is not a proper basis for a finding of manifest necessity.

United States v. Allen, 984 F.2d 940 (8th Cir. 1993)

Three defendants were tried jointly. Mid-trial, it was learned that substantial exculpatory information about two of the defendants had not been produced. Over the objection of the third defendant, a mistrial was granted. The retrial of that defendant was prohibited by the double jeopardy clause. There was no necessity to declare a mistrial as to the defendant who objected and who had not been deprived of discoverable material prior to trial.

United States v. Cavanaugh, 948 F.2d 405 (8th Cir. 1991)

Defendants were charged with assault and murder. At trial, the government prevailed on the jury to return a verdict of guilty on the murder, without reaching any verdict on the assault charges. When the murder conviction was reversed on sufficiency grounds by the appellate court, a prosecution for assault could not be pursued.

United States v. Dixon, 913 F.2d 1305 (8th Cir. 1990)

A trial judge declared a mistrial based on the disclosure that jurors saw a TV broadcast which the trial judge determined was prejudicial to both the government and the defense. However, the trial judge did not make an effort to poll the jury or to warn the jury not to pay attention to any news reports. Consequently, there was no manifest necessity for declaring the mistrial and because jeopardy had attached during the first trial, a retrial was barred by the Double Jeopardy Clause.

United States v. Gaytan, 115 F.3d 737 (9th Cir. 1997)

Angered by the government’s Brady violation, the district court dismissed the case mid-trial and declared that it was dismissed “with prejudice.” The appellate court reversed, holding that the discovery violation did not necessitate a dismissal of the indictment. A retrial was barred, however, because the defendant did not consent, or request the mistrial.

United States v. Sammaripa, 55 F.3d 433 (9th Cir. 1995)

In a jury trial, jeopardy attaches when the jury is impaneled and sworn. In this case, after the jury was impaneled and sworn, the prosecutor voiced a Batson challenge and the trial court thereafter granted a mistrial. There was no manifest necessity for doing so, because the prosecutor should have made the Batson challenge before the jury was impaneled and sworn. Therefore, the double jeopardy clause barred trying the defendant after this first aborted attempt.

Weston v. Kernan, 50 F.3d 633 (9th Cir. 1995)

When the state introduced evidence about the defendant’s character which the trial court had already held to be inadmissible, the defense attorney requested that the trial court grant a mistrial on its own motion on the grounds of prosecutorial misconduct and declare that a retrial would be barred by the double jeopardy clause. The trial court declared a mistrial “without prejudice” and denied the defendant’s double jeopardy motion. There was no manifest necessity for granting the mistrial and retrial was barred by the double jeopardy clause. It was clear that the defendant did not request a mistrial unless it was granted “with prejudice,” that is, without allowing the state to prosecute the defendant again. Thus, the defendant did not consent to the granting of the mistrial motion and a retrial was barred. A simple cautionary instruction was sufficient to cure the prosecutor’s error.

United States v. Blount, 34 F.3d 865 (9th Cir. 1994)

The defendant was charged with several counts relating to his efforts to prevent the “harvesting” of trees in a National Forest. At the conclusion of the government’s case, the defendant’s motion for judgment of acquittal was granted on certain counts. The next day, however, the trial court reinstated those counts as lesser included misdemeanors. This violated the double jeopardy clause: the district court’s ruling was clearly a determinative ruling on the merits and that ended the matter with regard to that charge, as well as any lesser included offense.

United States v. Bates, 917 F.2d 388 (9th Cir. 1990)

Despite the trial court’s ruling that a police officer could not give certain testimony without laying a proper foundation, the police officer did so. The trial court declared a mistrial without the defendant’s permission. This constituted an abuse of discretion and was not necessitated by any manifest necessity. A retrial was barred on double jeopardy grounds.

United States v. Baptiste, 832 F.2d 1173 (9th Cir. 1987)

A magistrate made a determination that the police lacked probable cause to order the defendant out of his car. Subsequently, the prosecution dismissed the indictment. This amounted to an acquittal and barred a subsequent prosecution.

Venson v. Georgia, 74 F.3d 1140 (11th Cir. 1996)

At the defendant’s state trial, his attorney asked a witness an impeaching question which was improper under state law. This witness was testifying about two counts of the three count indictment. Though a mistrial was properly granted as to the two counts about which the witness testified, there was no manifest necessity to grant a mistrial as to the other count. Retrial on this other count was, therefore, barred.

United States v. Butler, 41 F.3d 1435 (11th Cir. 1995)

An indictment charged nineteen people with being members of a drug conspiracy. The defendants were severed into two groups. During the second day of the first trial, all but one of the defendants in the first group entered guilty pleas. The government moved to mistry the case and put the remaining defendant into the second group. The defendant objected, noting that any interviews of these new witnesses (i.e., the former co-defendants) could be accomplished during the evening. Over objection, the trial court granted a mistrial. There was no manifest necessity for a mistrial and the double jeopardy clause barred a retrial. Moreover, the government’s fear that the defendant would have been prejudiced because the jury would know that all the co-defendants had pled guilty could be handled with a cautionary instruction.

United States v. Quiala, 19 F.3d 569 (11th Cir. 1994)

At the conclusion of the trial of the defendant’s co-defendants, the parties agreed that the defendant would be permitted to introduce certain additional evidence before submitting his case to the jury which would have been prejudicial to the co-defendants. During an overnight recess, the defense counsel flew from Key West back to Miami, intending to return on the early morning flight the next day. She was accompanied by court personnel. The morning flight, however, was delayed by mechanical difficulties and the earliest the attorney could return was 11:30 a.m. In the meantime, the trial court granted a mistrial. There was no manifest necessity to do so and the double jeopardy clause barred a retrial.

United States v. Chica, 14 F.3d 1527 (11th Cir. 1994)

Two defendants moved for a mistrial when a witness testified about inadmissible matters which prejudiced them. The two other defendants insisted on proceeding. The trial court held that the mistrial was granted not only because of the inadmissible evidence, but also because a case agent was engaged in the Waco, Texas standoff. The latter explanation did not represent a manifest necessity, because the agent’s unavailability was known prior to the beginning of trial and arrangements were contemplated. With regard to the necessity of mistrying the other defendants, this represents nothing more than an interest in judicial economy – the trial court’s desire not to have to try the case twice if a severance of defendants were granted. However, judicial economy is not a manifest necessity. If the original jury is capable of rendering a fair verdict, then the inconvenience of trying the case twice can never amount to a manifest necessity.

Freer v. Dugger, 935 F.2d 213 (11th Cir. 1991)

Following his murder conviction, the defendant moved the trial court to enter a judgment of acquittal. The trial judge indicated that he thought the evidence was insufficient to support the conviction, but, at the urging of the state, simply granted a motion for new trial (thus permitting the appellate court to review the evidence and the state to retry the defendant). In light of the trial judge’s findings that the evidence was insufficient, a retrial was barred by the double jeopardy clause.

United States v. Bennett, 836 F.2d 1314 (11th Cir. 1988)

At his first trial, the defendant was found not guilty of importation of drugs, but the jury deadlocked on other substantive and conspiracy offenses. Prior to the second trial, the Eleventh Circuit set forth the rules governing the government’s right to present evidence on the offenses which were already adjudicated and on the offenses which were not adjudicated. The Eleventh Circuit canvasses both the rules of collateral estoppel and double jeopardy. Essentially, all the evidence is admissible if it relates to the offenses for which the defendant is now standing trial, but the jury must be cautioned that the evidence should only be considered as relating to the counts which the evidence relates to.