          United States Court of Appeals
                     For the First Circuit

No. 01-2565

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       JOSÉ TORIBIO-LUGO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Héctor M. Laffitte, U.S. District Judge]


                             Before

                     Selya, Lynch and Lipez,

                         Circuit Judges.


     Joannie Plaza-Martinez, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, was on
brief, for appellant.
     Irene C. Feldman, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, Jorge E. Vega-Pacheco, Chief,
Criminal Division, and Thomas F. Klumper, Assistant United States
Attorney, were on brief, for appellee.



                          July 21, 2004
           SELYA, Circuit Judge.   Four days into a criminal trial,

the district court discovered that a juror had been absent for some

time and, having previously discharged the lone alternate, declared

a mistrial sua sponte.      Defendant-appellant José Toribio-Lugo

thereafter moved to dismiss the indictment on double jeopardy

grounds.     The district court denied that motion.    This appeal

ensued.    After careful review, we conclude that the lower court

erred in refusing to dismiss the indictment.

I.   BACKGROUND

             On June 6, 2001, a federal grand jury indicted the

appellant for various narcotics offenses.   See, e.g., 21 U.S.C. §§

841(a)(1), 952(a).   The court empaneled a jury of twelve, plus one

alternate.     Trial commenced on August 13, 2001.    The alternate

juror experienced a personal problem and the judge excused her on

the second day of trial.

           At the start of the fourth day, the courtroom deputy

informed the judge that only eleven jurors were present. The judge

immediately consulted with both the prosecutor and the appellant's

lawyers. He outlined two options: either postpone the trial until

the twelfth juror could be located or proceed with a jury of

eleven.    See Fed. R. Crim. P. 23(b)(2)(A) (permitting the parties

in a criminal case to stipulate to trial by a jury of fewer than

twelve at any time before the verdict).   Defense counsel asked why

the juror was missing and, in virtually the same breath, began to


                                -2-
express her viewpoint.     She stated:    "The thing is I'm thinking

about --".      That was as far as she got.        The district judge

interrupted, declaring:      "This is very simple.          [The missing

juror's] not here.    She's not here.    She might be dead.       She may

be ill.    It doesn't make any difference."         Chastened, defense

counsel conferred with her client and informed the judge that the

appellant did not wish to proceed at that moment with eleven

jurors, but, rather, would "like to wait for twelve jurors, a

twelve-member    jury."   The   judge   then   terminated   the    sidebar

conference, announcing that the trial would be postponed until the

twelfth juror could be found.

          Almost immediately thereafter, the judge learned that the

problem was more complex than he initially had thought.           Thus, he

excused the jury and told the attorneys what he had learned:          that

the missing juror had been absent during some or all of the earlier

portions of the trial.    The judge then announced that he was going

to declare a mistrial because only eleven jurors had heard the

evidence and he did not believe that there was any way to cure that

defect.   The prosecutor promptly asked for a new trial date, but

the judge, seemingly anticipating a double jeopardy challenge,

declined the request.     Defense counsel tried to articulate her

client's position.    She stated:   "Our position is that --".         The

judge once again cut her off mid-sentence, saying:             "Counsel.




                                 -3-
Wait."   He then began questioning the courtroom deputy about the

number of jurors originally empaneled.

            The shape of the fiasco soon emerged.         On the morning of

August 13 (the first day of trial), twelve jurors and one alternate

were sworn.   For reasons that remain obscure, one of the empaneled

jurors   vanished   later   that   morning.        No   one   —   neither    the

prosecutor, nor defense counsel, nor the courtroom deputy, nor the

judge — noticed the juror's absence, and the trial proceeded apace.

This state of blissful ignorance still existed when, on the second

trial day, the judge, with the assent of both parties, dismissed

the alternate juror.      The upshot was that only twelve jurors had

begun to hear evidence in the case and only eleven of them had been

present from the second day forward.

            After recounting this bizarre sequence of events, the

district judge expressed some uncertainty about whether, in the

event of a mistrial, the Double Jeopardy Clause would bar retrial

of the appellant.     The judge invited the attorneys to brief the

issue. Defense counsel again endeavored to be heard, but the judge

again thwarted her attempt.         He then reconvened the jury and,

acting sua sponte, declared a mistrial.

            When thereafter the government moved for a new trial

date, the appellant objected and cross-moved for dismissal of the

indictment on double jeopardy grounds.        Briefs were submitted.          On

September   24,   2001,   the   district   judge    denied    the   motion    to


                                    -4-
dismiss.1     United States v. Toribio-Lugo, 164 F. Supp. 2d 251

(D.P.R. 2001).   The judge predicated his ruling on two alternative

grounds.    First, he concluded that a mistrial was required by

manifest necessity because only eleven jurors remained and the

appellant had refused to proceed with fewer than twelve.       Id. at

253-54.     Second, he concluded that the appellant had, in all

events, consented to the declaration of a mistrial. Id. at 254-55.

This appeal followed.

II.   ANALYSIS

            In the ordinary course, a defendant cannot pursue an

immediate appeal from an interlocutory order in a criminal case.

Like virtually every general rule, this rule admits of various

exceptions — and one such exception allows immediate appeals from

denials of motions to dismiss premised on colorable double jeopardy

grounds.    See Abney v. United States, 431 U.S. 651, 662 (1977);

United States v. Keene, 287 F.3d 229, 232 (1st Cir. 2002).       This

case comes within that exception.      We turn, then, to the merits of

the appeal.

                     A.   Background Principles.

            The Double Jeopardy Clause ensures that no person shall

"be subject for the same offence to be twice put in jeopardy of



      1
      On the same date, the district judge rescheduled the trial.
The judge thereafter denied the appellant's motion to stay retrial
pending appeal. The appellant has since been retried, convicted,
and sentenced. He is presently serving that sentence.

                                 -5-
life or limb."       U.S. Const. amend. V.           In a jury trial, jeopardy

attaches when the jury is sworn.                Crist v. Bretz, 437 U.S. 28, 35

(1978). 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.

Arizona v. Washington, 434 U.S. 497, 503 (1978).

             The    prophylaxis      of    the     Double    Jeopardy      Clause   is

threefold.     See United States v. Ortiz-Alarcon, 917 F.2d 651, 653

(1st Cir. 1990) (delineating the three main types of protection

conferred).        One such protection restrains the government from

using its power and resources to subject a defendant to serial

prosecutions, thus prolonging his ordeal and unfairly enhancing the

prospect of his ultimate conviction.                Green v. United States, 355

U.S. 184, 187-88 (1957).          Despite its importance, however, the

protection against serial prosecutions is not absolute.

            Mistrials exemplify the need for exceptions.                      When a

mistrial is declared before the jury returns its verdict, jeopardy

may or may not attach.        In other words, double jeopardy principles

do not automatically bar reprosecution, Washington, 434 U.S. at

505, and the circumstances of each case must be examined to

determine    where     that   case    falls       along     the   double    jeopardy

continuum.    If, say, the defendant has consented to a mistrial or

manifest necessity has precipitated it, the prosecution ordinarily

may proceed anew.      See United States v. Dinitz, 424 U.S. 600, 611-


                                          -6-
12 (1976) (finding no double jeopardy bar where the defendant had

moved for a mistrial); United States v. Perez, 22 U.S. (9 Wheat.)

579, 579-80 (1824) (finding no double jeopardy bar where the

existence     of    a   deadlocked      jury    made   a   mistrial   manifestly

necessary).         These outcomes reflect an understanding that "a

defendant's    valued     right    to    have    his   trial    completed      by   a

particular tribunal must in some instances be subordinated to the

public's    interest      in    fair    trials    designed     to   end   in   just

judgments."        Wade v. Hunter, 336 U.S. 684, 689 (1949).

                           B.    Standard of Review.

            The baseline standard of review applicable to a denial of

a motion to dismiss on double jeopardy grounds following the

declaration of a mistrial is abuse of discretion.                     See, e.g.,

Washington, 434 U.S. at 514; Keene, 287 F.3d at 233.                  In light of

the important constitutional right involved, appellate review must

ensure that the trial court indulged in a "scrupulous exercise of

judicial discretion."           United States v. Jorn, 400 U.S. 470, 485

(1971) (plurality op.).          This entails accepting the trial court's

factual findings unless they are clearly erroneous.                 United States

v. Bradshaw, 281 F.3d 278, 291 (1st Cir.), cert. denied, 537 U.S.

1049 (2002). Articulations of law engender de novo review. Keene,

287 F.3d at 233.         A mistake of law is, a fortiori, an abuse of

discretion.        United States v. Snyder, 136 F.3d 65, 67 (1st Cir.

1998).


                                         -7-
            Here, the threshold determination that the appellant

consented to the declaration of a mistrial has both factual and

legal components.       Consistent with the paradigm limned above, we

review the district court's factual findings for clear error.

Whether   the   facts    as   found   add    up   to    consent    is     a   legal

determination that we review de novo.                  Cf. Ornelas v. United

States, 517 U.S. 690, 696-98 (1996) (applying this multifaceted

standard of review to determinations of probable cause).

                         C.   Manifest Necessity.

            Like the district court, we first inquire into the

existence vel non of manifest necessity (after all, if a mistrial

was occasioned by manifest necessity, then the question of consent

becomes immaterial). The Supreme Court initially coined the phrase

"manifest necessity" in the early nineteenth century.                    In Perez,

Justice Story wrote:

            [T]he law has invested Courts of justice with
            the authority to discharge a jury from giving
            any verdict, whenever, in their opinion,
            taking    all    the    circumstances     into
            consideration, there is a manifest necessity
            for the act, or the ends of public justice
            would otherwise be defeated.     They are to
            exercise a sound discretion on the subject;
            and it is impossible to define all the
            circumstances, which would render it proper to
            interfere. To be sure, the power ought to be
            used with the greatest caution, under urgent
            circumstances, and for very plain and obvious
            causes; . . . .

22 U.S. (9 Wheat.) at 580.            Attempts to define the term more

precisely   —   beyond   tautological       acknowledgments       that    manifest

                                      -8-
necessity demands a "high degree" of necessity, Washington, 434

U.S. at 506 — have not been helpful.     Experience teaches that there

is no mechanical rule for determining whether a mistrial is (or is

not) supported by manifest necessity.     Illinois v. Somerville, 410

U.S. 458, 462 (1973).   Consequently, "an appellate court's inquiry

inevitably reduces to whether the district judge's declaration of

a mistrial was reasonably necessary under all the circumstances."

Keene, 287 F.3d at 234.    Typically, this inquiry is informed by a

triumvirate of interrelated factors:      (i) whether alternatives to

a mistrial were explored and exhausted; (ii) whether counsel had an

opportunity to be heard; and (iii) whether the judge's decision was

made after sufficient reflection.      See id.; see also United States

v. Simonetti, 998 F.2d 39, 41 (1st Cir. 1993).

            In the case at hand, there was a clear alternative to a

mistrial:    proceeding with eleven jurors.     Although the Criminal

Rules normally require a twelve-member jury in a criminal case, see

Fed. R. Crim. P. 23(b)(1), the parties may by agreement proceed

with fewer than twelve, see Fed. R. Crim. P. 23(b)(2)(A).     Thus, it

was within the power of the district court to continue with eleven

jurors as long as the parties consented to doing so.

            The district court only tentatively explored — and never

exhausted — that possibility.          Instead, the court mistakenly

concluded that the alternative was foreclosed by the appellant's

initial expression of a preference to wait and see if the twelfth


                                 -9-
juror could be found.   Toribio-Lugo, 164 F. Supp. 2d at 254.   As we

explain below, the record does not support the court's conclusion

that the expression of that preference slammed the door on the

"jury of eleven" alternative.

            When the district court discovered that a juror was

missing, it presented the lawyers with two options:        either to

postpone the proceedings until the vanished juror could be located

or to proceed with a jury of eleven.          As between these two

alternatives, the appellant chose the former.        The court never

offered the appellant a choice between proceeding with eleven

jurors or accepting a mistrial.        To cinch matters, the court,

during the pertinent time frame, made no effort to ascertain the

appellant's attitude or wishes with regard to the possibility of a

mistrial.     In view of these omissions, the record compels a

conclusion that the "jury of eleven" alternative was not adequately

explored.

            That conclusion is dispositive on this point.       Where

there is a viable alternative to a mistrial and the district court

fails adequately to explore it, a finding of manifest necessity

cannot stand.   See, e.g., United States v. Ramirez, 884 F.2d 1524,

1529-30 (1st Cir. 1989); Brady v. Samaha, 667 F.2d 224, 229-30 (1st

Cir. 1981).   This is such a case.   Accordingly, we reject the lower

court's holding that its declaration of a mistrial was supported by

manifest necessity.


                                -10-
                             D.   Consent.

           In the absence of manifest necessity, double jeopardy

principles require that a defendant retain primary control over

whether or not to abort an ongoing trial.       See Dinitz, 424 U.S. at

609.   Withal, the protections of the Double Jeopardy Clause are at

most a series of personal defenses, so they may be waived or

vitiated by consent.    Id. at 607; United States v. DiPietro, 936

F.2d 6, 9 (1st Cir. 1991).   This brings us to the district court's

alternate holding: that the appellant consented to the declaration

of a mistrial.

           In this context, consent may be express, such as where

the defendant himself moves for a mistrial without having been

goaded into doing so by misconduct attributable to the government.

E.g., Dinitz, 424 U.S. at 607-12.        The requisite consent may also

be implied from a defendant's acts or failures to act, such as

where the defendant sits silently by and does not object to the

declaration of a mistrial even though he has a fair opportunity to

do so.   E.g., DiPietro, 936 F.2d at 9-11.     Even so, the implication

of consent is not lightly to be indulged.      Any such finding must be

consistent with the defendant's valued right to trial before a

particular jury and his concomitant interest in deciding whether to

take the case from that jury.

           In this instance, the district court concluded that the

appellant consented to the declaration of a mistrial twice over.


                                  -11-
The court first extrapolated consent from the appellant's refusal

to proceed with eleven jurors.              Toribio-Lugo, 164 F. Supp. 2d at

254.   For the reasons previously discussed, see supra Part II(C),

we reject this extrapolation.            Choosing to await the return of a

missing   juror      over   proceeding      with    a    jury    of   eleven   cannot

reasonably    be     construed   as    consent      to    the    declaration    of   a

mistrial.

             There is, however, more to this case. The district court

also held that the appellant impliedly consented to the declaration

of a mistrial by his silence when the court announced its intention

to abort the proceedings.             Id.     The integrity of this finding

presents a     close    question:        as   the   district       court   correctly

observed, defense counsel was present throughout and did not object

to the declaration of a mistrial at any point.

             Under most circumstances, such silence might well permit

a finding of implied consent. See, e.g., United States v. Nichols,

977 F.2d 972, 974-75 (5th Cir. 1992) (per curiam); DiPietro, 936

F.2d at 11; Camden v. Circuit Court, 892 F.2d 610, 612-18 (7th Cir.

1989).    But this case is different.                   Implying consent from a

failure to object requires, at a bare minimum, that the defendant

has had an adequate opportunity to register an effective objection.

Compare DiPietro, 936 F.2d at 11 (implying consent where defense

counsel sat     in    the   courtroom       for   several       minutes   during   the

announcement of a mistrial without objecting), with Love v. Morton,


                                       -12-
112 F.3d 131, 138-39 (3d Cir. 1997) (rejecting a finding of implied

consent where the trial judge, in a state of grief after learning

of a death in his family, abruptly ordered a mistrial and left the

bench).   Thus, the question reduces to whether defense counsel had

a fair opportunity to object here.

           The   district   court    answered   this   question   in   the

affirmative.     The court found that defense counsel had several

chances to voice an objection:

           For several minutes after the Court announced
           its decision to declare a mistrial, both
           defense   counsel   and   government   counsel
           remained in the courtroom.    Defense counsel
           was present as the Court questioned the
           courtroom deputy as to the whereabouts of the
           missing juror.    Next, defense counsel was
           present while the Court expressed its concern
           over [the] government's motion to set a new
           trial date.    Finally, defense counsel was
           present as the Court explained the reason for
           the mistrial to the jury before discharging
           them.   At no timefrom [sic] the moment the
           Court declared a mistrial to the moment it
           discharged the jury did defense counsel object
           to the mistrial.

Toribio-Lugo, 164 F. Supp. 2d at 254-55.         We accept the court's

factual findings that defense counsel was present at all relevant

times and lodged no formal objection. In the circumstances of this

case, however, those facts tell only a part of the story.         And when

the full panoply of facts is taken into account, the district

court's conclusion that counsel had an adequate opportunity to

object becomes insupportable.



                                    -13-
             The dynamics of a trial are important to its outcome. To

do her job, a lawyer must be forceful, but she also must handle her

relationship with the presiding judge with care.                "Nothing goes

further to disturb the proper atmosphere of a trial than [a

lawyer's] reiterated insistence upon a position which the judge has

once considered and decided." Keen v. Overseas Tankship Corp., 194

F.2d 515, 519 (2d Cir. 1952) (L. Hand, J.).              It follows that when

a   lawyer   repeatedly      attempts    to   state   her    position    but   is

repeatedly rebuffed, there will come a point at which further

insistence can have deleterious consequences.               A lawyer ought not

to be required to persist stubbornly when the judge has made it

perfectly clear that he does not wish to hear what the lawyer has

to say.      Cf. Douglas v. Alabama, 380 U.S. 415, 422 (1965) ("No

legitimate state interest would have been served by requiring

repetition of a patently futile objection, already thrice rejected,

in a situation in which repeated objection might well affront the

court or prejudice the jury beyond repair.").

             In this case, defense counsel made either two or three

attempts to     be   heard    during    the   district   court's   sua    sponte

consideration of whether or not to declare a mistrial.2                  On each

occasion, the court stopped counsel in her tracks, cutting her off


      2
      The parties spar over whether the first attempt was part of
that colloquy. For present purposes, that is a distinction without
a difference. What counts is that the judge set the tone for the
proceedings that followed by interrupting the lawyer in mid-
sentence as she tried to state her client's position.

                                       -14-
once when the court was addressing the issue of whether to wait for

the missing juror and twice more when the court was addressing the

issue of manifest necessity.              It was only after these three

attempts to state her position had been firmly rebuffed that

defense    counsel    lapsed    into    silence.     To   hold,     under   these

circumstances, that the appellant freely, albeit tacitly, consented

to the discharging of the jury would mock reality and at the same

time condone an unfortunate curtness on the part of the district

court.    We do not think that consent to a mistrial fairly can be

inferred from enforced silence.

            Let us be perfectly clear.           We do not mean to say that

being    silenced    by   a   judge    always   correlates   with    a   lack   of

opportunity to object.         See generally United States v. Mejia, 909

F.2d 242, 248 (7th Cir. 1990) (explaining that counsel "has a duty

to object, and even at the risk of incurring the displeasure of the

trial court, to insist upon his objection") (citations omitted).

Here, however, a confluence of factors, especially the number of

times that defense counsel was stymied and the relatively brief

period of time that elapsed, militates strongly in favor of a

conclusion that consent should not be implied.3


     3
      In fairness, it seems quite likely that the court was
laboring under the assumption that the appellant's earlier decision
to wait for the missing juror and, concomitantly, to eschew
proceeding with a jury of eleven at that point was an absolute
rejection of the "jury of eleven" alternative. Ordinarily, counsel
would bear some responsibility for clearing up this sort of
confusion — and we might hesitate to find an abuse of discretion

                                       -15-
            With all due respect for the good faith of the district

judge (which we do not doubt), we conclude that a fundamental

constitutional right of an accused should not be snatched away in

such uncertain circumstances.         Consequently, we hold that the

district court's second basis for its finding of consent is, like

its first, untenable.

            That ends the matter.     In the absence of either manifest

necessity   or   binding   consent,   jeopardy   attached.    Thus,   the

appellant's reprosecution was not constitutionally permissible.

III.   CONCLUSION

            We need go no further. For the reasons elucidated above,

we reverse the order appealed from and remand the case to the

district    court   with   directions    to   vacate   the   defendant's

conviction. See supra note 1. The district court should thereupon

dismiss the indictment.



Reversed and remanded.




had the lawyer sat idly by and lackadaisically allowed the court to
proceed under a false assumption. Here, however, defense counsel
thrice attempted to be heard — and on all three occasions the court
cut her off.

                                  -16-
