                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4742


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

RASHAD SALEEM MUHAMMAD,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:08-cr-01237-PMD-1)


Argued:   September 21, 2012            Decided:   November 30, 2012


Before SHEDD, KEENAN, and THACKER, Circuit Judges.


Affirmed in part and remanded by unpublished per curiam opinion.


ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant.   Robert Nicholas Bianchi, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Columbia, South Carolina, Nathan S. Williams, Assistant United
States   Attorney,  OFFICE   OF  THE   UNITED  STATES  ATTORNEY,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      During      Rashad      Saleem     Muhammad’s           criminal     trial,     the

government produced for the first time a statement made by co-

defendant Damon Milford in March 2010 that tended to exculpate

Muhammad. Relying on the parties’ agreement that the statement

created a problem under Bruton v. United States, 391 U.S. 123

(1968), the district court granted a mistrial without Muhammad’s

consent. The court later denied Muhammad’s motion to dismiss the

indictment      on       double    jeopardy        grounds,     reasoning     that    the

mistrial was manifestly necessary because there were no viable

alternatives. See Oregon v. Kennedy, 456 U.S. 667, 672 (1982)

(manifest      necessity          standard       applies      to     double    jeopardy

determination         when    mistrial       was     declared      without     consent).

Muhammad now appeals the denial of the motion to dismiss.

      In Bruton, the Court “held that, in certain circumstances,

admission    of      a    non-testifying         co-defendant’s        confession    that

inculpates      the        defendant     violates        the       Sixth     Amendment’s

Confrontation Clause because the defendant has no opportunity

for cross-examination.” United States v. Lighty, 616 F.3d 321,

376   (4th     Cir.      2010)    (emphasis        added).     Thus,     “[u]nless    the

prosecutor wishes to hold separate trials or to use separate

juries or to abandon use of the confession, he must redact the

confession to reduce significantly or to eliminate the special



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prejudice that the Bruton Court found.” Gray v. Maryland, 523

U.S. 185, 192 (1998).

     At    trial,         the    parties       and     the       district          court       did    not

discuss Bruton            in    detail.       Muhammad         appears     to      have        been   the

first    party       to    raise    Bruton,          see       J.A.    493,     and       he    clearly

asserted Bruton as his basis for seeking a dismissal of the

indictment      with       prejudice,         see     J.A.       506.     For      its        part,    the

government       acknowledged           that     Milford’s            March        2010       statement

“certainly creates implications about Bruton,” J.A. 513-14, and

for this reason it conceded that a mistrial was appropriate and

consented to a mistrial, J.A. 515-16. In the order denying the

motion     to    dismiss,         the     court       stated:          “The        government         and

Defendants agreed that the statement allegedly made by Defendant

Damon Milford and summarized in the documents produced once the

trial    had    begun      created       a     constitutional            problem          based       upon

Bruton.” J.A. 592.

     A     district        court        has    broad           discretion          in     determining

whether manifest necessity requires declaration of a mistrial,

and we review that court’s invocation of the manifest necessity

doctrine       and    concomitant         denial          of    a     motion       to     dismiss       an

indictment for abuse of this discretion. United States v. Sloan,

36 F.3d 386, 393 (4th Cir. 1994). Unquestionably, the district

court’s     mistrial           declaration          was        prompted       by        the    parties’

arguments that Milford’s March 2010 statement creates a Bruton

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problem. However, because Milford’s March 2010 statement tends

to exculpate, rather than inculpate, Muhammad, it actually does

not create a Bruton problem. Despite their contrary arguments

below, the parties agreed with this assessment at oral argument. 1

     In     light    of    the    parties’   changed   positions       concerning

Bruton, we believe the prudent course is to remand this case to

the district court for reconsideration of the motion to dismiss.

See generally In re Matthews, 395 F.3d 477, 483 (4th Cir. 2005)

(remanding case for district court consideration of issue first

raised      on   appeal).    On    remand,    the   district        court   should

reevaluate       whether   manifest    necessity    existed    to    declare   the

mistrial, bearing in mind that the government “must shoulder the

[heavy] burden of justifying the mistrial . . . to avoid the

double jeopardy bar.” Arizona v. Washington, 434 U.S. 497, 505

(1978). 2

                                              AFFIRMED IN PART AND REMANDED

     1
      When trial began, Muhammad knew that Milford had given a
statement to law enforcement on August 21, 2008. Milford’s
August 2008 statement is contrary to his March 2010 statement in
that it tends to inculpate Muhammad. Although not addressed
below, the August 2008 statement may lead to a Bruton problem if
the government attempted to introduce it at trial. That
potential problem, if it exists at all, is independent of the
government’s untimely disclosure of the March 2010 statement.
     2
      On appeal, Muhammad challenges the district court’s finding
that the government did not commit intentional misconduct. We
discern no clear error in this finding. Therefore, we affirm the
court’s order denying the motion to dismiss to this extent.



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