                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-3880
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

DARIUS VAISETA,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 01 CR 922—Paul E. Plunkett, Judge.
                          ____________
      ARGUED MAY 21, 2003—DECIDED JUNE 25, 2003
                    ____________


  Before FLAUM, Chief Judge, and POSNER and MANION,
Circuit Judges.
  FLAUM, Chief Judge. Darius Vaiseta was charged with
five counts of receiving, possessing or selling stolen motor
vehicles, in violation of 18 U.S.C. § 2313, one count of
conspiracy to commit the same, in violation of 18 U.S.C.
§ 371, and one count of altering a vehicle identification
number (“VIN”), in violation of 18 U.S.C. 511(a)(1). After
hearing twelve to fourteen hours of evidence at trial
and deliberating for just over seven hours, the jury in-
formed the court that it had reached a verdict as to
six counts but was deadlocked on the remaining count. De-
spite Vaiseta’s request that the jury be encouraged to
keep deliberating, the court accepted the jury’s partial
2                                               No. 02-3880

verdict, which found Vaiseta guilty of the five counts of
auto theft and not guilty of the one count of VIN altera-
tion. The court declared a mistrial on the remaining con-
spiracy count, and Vaiseta now appeals. We affirm.


                     I. BACKGROUND
  The government returned a seven-count indictment
against Vaiseta based on its investigation of his role in
an auto theft ring. The indictment alleged that Vaiseta
participated in a scheme to steal cars in Canada, “clone” the
stolen cars (i.e., swap the visible VIN on the stolen car
with a VIN from a non-stolen vehicle of similar make,
model and year, and then obtain a duplicate set of title
documents based on the history of the non-stolen car),
submit the Canadian title documents to the Illinois Sec-
retary of State in exchange for “valid” Illinois titles
and registrations for the stolen cars, and then sell the
stolen cars to innocent, unsuspecting customers through
classified ads. Vaiseta was indicted after United States
Customs seized a stolen car that was being driven across
the border from Canada by one of Vaiseta’s employees
(Vaiseta also runs a lawful business selling Kirby vac-
uum cleaners). The government later discovered that
Vaiseta paid this employee $1,000 to pick up the car from
Canada and drive it back to Illinois.
  The government also attempted to prove that Vaiseta
had conspired with his fiancé and a man named Algis
Bagdonas in a larger auto theft ring. Vaiseta’s bank rec-
ords revealed that he paid $54,000 to Bagdonas between
December 1999 and May 2000, and that Vaiseta sent
$15,750 to Canada during that time. Vaiseta testified
that he met Bagdonas when he first came to the United
States, and that he called Bagdonas when he needed
vehicles for his vacuum cleaner sales business because he
had heard Bagdonas got good deals on cars.
No. 02-3880                                                   3

  At the conclusion of the 12-14 hour trial, the jury de-
liberated for approximately seven hours before sending
a note to the judge1 stating: “We feel we are in a deadlock
on one count. It appears we are not going to be able to
change this, if we stay in this position what would be the
procedure at this point.” After discussing the issue with
the parties and without objection from either side, the
judge sent the jury a note asking them to clarify their
status on the other counts: “Have you reached a verdict on
six counts and are deadlocked on one? Please answer
either yes or no.” The jury responded “Yes.” The govern-
ment then asked the judge whether it would be appropri-
ate to accept a partial verdict and declare a mistrial on
the remaining count. Vaiseta objected, expressing his
preference that the jury be permitted to continue delib-
erating rather than be called in to deliver a partial verdict.
The judge then suggested, and both sides agreed, to send
another note to the jury asking whether they had any hope
at breaking their impasse: “Do you believe that if you
continue to deliberate you have any hope or expectation
of resolving deadlock on remaining count.” To this final
query the jury replied: “We believe that if we continue
to deliberate we will not be able to come to a unanimous
decision on the remaining count.”
  In response to the jury’s third admission of deadlock,
the judge consulted with the parties and ruled that he
would “bring the jury out, take the verdict as they have
it and declare a mistrial to the count as to which they
have not reached a verdict.” Vaiseta again objected to
taking a partial verdict on the six unanimous counts and


1
  All of the following conversations and decisions regarding the
jury’s inability to reach a verdict on one of the seven counts
were conducted by the parties via telephone with Judge Plunkett,
who was out of chambers that afternoon for a doctor’s appoint-
ment. Judge Guzman received the jury’s verdict in his stead.
4                                               No. 02-3880

reiterated that he wanted the jury to continue deliberat-
ing until they reached agreement on all seven counts.
But the judge decided that there would be no benefit
from asking the jury to continue its deliberations once
it had plainly declared itself deadlocked. Over Vaiseta’s
objection, the jury was called into the courtroom to deliver
its partial verdict.
  The jury found Vaiseta guilty of the five counts of receiv-
ing, possessing or selling stolen motor vehicles, not guilty
of the one count of VIN alteration, and deadlocked on
the one count of conspiracy. Following Vaiseta’s sentenc-
ing for the five counts of auto theft, the government dis-
missed the conspiracy charge. Vaiseta now appeals the
court’s decision to halt the jury’s deliberations and de-
clare a mistrial on the conspiracy count.


                      II. DISCUSSION
  We review the district court’s declaration of a mistrial
for abuse of discretion, United States v. Byrski, 854 F.2d
955, 960 (7th Cir. 1988), and we accord great deference
to the court’s decision when the “manifest necessity”
justifying the mistrial is rooted in jury deadlock, Arizona
v. Washington, 434 U.S. 497, 511 (1978). The decision to
declare a mistrial is committed to the sound discretion
of the trial judge because he or she is most aware of the
circumstances of the trial and in the best position to
balance the interests of the defendant in having a tribunal
“favorably disposed to his fate” render a verdict, United
States v. Jorn, 400 U.S. 470, 485 (1971), and of the public
in “fair trials designed to end in just judgments,” Lovinger
v. Circuit Court of 19th Judicial Circuit, 845 F.2d 739,
743 (7th Cir. 1988).
  In this case the court was well within its discretion
when it declared a mistrial on the one deadlocked count.
In determining whether the jury deadlock justified a
No. 02-3880                                                  5

mistrial, we consider factors such as: “the jury’s own
statements that it cannot agree, the length of delibera-
tions, the length of trial, the complexity of the issues
presented, the jury’s communications to the judge, and
the impact that further, forced deliberations might have
on the verdict.” Escobar v. O’Leary, 943 F.2d 711, 718 (7th
Cir. 1991); Byrski, 854 F.2d at 961. Looking at the
facts here in light of our decisions in Escobar and Byrski,
we find that every consideration is met. First, the jury
itself stated three different times that it was deadlocked
as to one of the seven charged counts. Second, the judge
noted that the length of the jury’s deliberations (7 hours),
compared with the length of the evidentiary portion of
the trial (12-14 hours) and the complexity of the issues
tried, seemed reasonable and provided the jury with
adequate time to reach a fair decision. Third, the judge
communicated with the jury three times regarding its
professed impasse, each time taking care to clarify where
the jury stood with respect to its deliberative process.
Finally, against all of these indications that the jury was
in fact deadlocked, there was no contrary evidence to
suggest that any further deliberations would result in
a unanimous verdict on the remaining count.
  Nevertheless, Vaiseta claims that the court acted too
hastily and should have given the jury additional time
to deliberate, perhaps calling them back into the court-
room for a Silvern instruction or Allen charge, see United
States v. Silvern, 484 F.2d 879 (7th Cir. 1979) (con-
cerning appropriate supplemental instructions where
jury seems unable to reach verdict) and Allen v. United
States, 164 U.S. 492 (1896) (same), before “simply de-
clar[ing] a mistrial . . . over defendant’s objections.” Appel-
lant’s Br. at 14. Vaiseta suggests that with more time the
jury might have reached a different outcome: “Perhaps, had
the jury been permitted to deliberate further, they might
have convicted the defendant on the conspiracy count . . .
6                                              No. 02-3880

Perhaps, however, the jury might have chosen to acquit
the defendant. It is reasonable to conclude that they
might have revisited those five theft counts.” Appellant’s
Br. at 16. But Vaiseta’s “might have” argument, without
any evidence that his rights and interests were compro-
mised by the declaration of a mistrial, cannot prevail
against the specific facts and circumstances of this case.
By all indications, the jury in this case had deliberated
long enough to know that it was hopelessly deadlocked
on one of the seven charged counts. In particular, the
fact that the jury found Vaiseta guilty of the five iden-
tical counts of auto theft, but not guilty or not sure
about the two different counts of VIN alteration and
conspiracy, strongly suggests that the jury considered all
of the evidence presented at trial and took care to eval-
uate the evidence in light of the various charges levied
against Vaiseta. This record is simply devoid of evidence
that the jury gave up too soon, or that it would have
reached any different verdict after further deliberation.


                    III. CONCLUSION
  The district court did not abuse its discretion by declar-
ing a mistrial due to jury deadlock on one of the seven
charged counts. Vaiseta’s conviction is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit



                   USCA-02-C-0072—6-25-03
