                                                                                [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT

                            -------------------------------------------
                                         No. 00-10828                            FILED
                                                                        U.S. COURT OF APPEALS
                           -------------------------------------------- ELEVENTH CIRCUIT
                                                                            JULY 20, 2001
                          D. C. Docket No. 98-00003-CR-EBD                THOMAS K. KAHN
                                                                              CLERK


UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,
       versus

JAMES C. BURKE,

                                                            Defendant-Appellant.


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                      Appeal from the United States District Court
                            for the Southern District of Florida
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                                        (July 20, 2001)



Before EDMONDSON, DUBINA and POLITZ*, Circuit Judges.


EDMONDSON, Circuit Judge:
_______________

*   Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
       This appeal involves the authority of defense counsel to decide whether to

request a mistrial in a federal criminal trial. Defendant James C. Burke appeals his

conviction of accepting a bribe from a government agent in violation of 18 U.S.C.

§666(a)(1)(B). We affirm.

       In a case involving several different charges, a jury convicted Defendant of

one: accepting a bribe from a government agent while Defendant was a local

official (in return for Defendant’s political influence in two bond deals).

Defendant argues that he was denied effective assistance of counsel when his

defense counsel sought an Allen charge despite Defendant’s request that his

counsel join the prosecutors in asking for a mistrial.1

       About five days after the jury had begun deliberating, the jury notified the

district court that they had reached a verdict on all but two counts: bribery of a

government official and money laundering. The government asked the district

court to accept the verdict and to declare a mistrial on the remaining counts.

Defendant says that he told his counsel that he also wanted to accept the verdict as

it stood and to accept a mistrial. But Defendant’s counsel instead requested the



   1
     Defendant raises other issues in his appeal. Specifically, he argues that the district court erred
in (1) its jury instructions, (2) denying Defendant’s motion for acquittal based on insufficient
evidence and (3) denying Defendant’s motion for severance of the trial. After reviewing these
claims, we deem them to be without merit.

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district court to instruct the jury with a modified Allen charge. After a brief

discussion on the issue, the court gave the Allen charge. Then about two hours

later, the jury returned with a finding of guilty on the bribery count. The jury said

that it was still hung on the money laundering count; so, the court then declared a

mistrial on that remaining count.

      Defendant filed a motion in the district court for a new trial based on

ineffective assistance of counsel. Defendant contended that his counsel was

ineffective for disregarding defendant’s request to consent to a mistrial. The court

accepted the facts set forth in Defendant’s affidavit but concluded that defense

counsel was not ineffective. The trial court concluded that the pertinent decision

about mistrial was a tactical one that defense counsel was entitled to make.

Defendant now appeals.



                                    DISCUSSION



      The Supreme Court has said that a defendant has the ultimate authority to

make fundamental decisions for his case. The Court has listed four decisions

which it characterizes as fundamental: whether to plead guilty, waive a jury, testify

in his or her own behalf or to take an appeal. See Jones v. Barnes, 103 S.Ct. 3308


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(1983). But this list is all the Supreme Court has said about fundamental rights

that belong solely to the defendant for decision.

       Although a represented defendant does retain the absolute right to make

limited choices for his case, neither the Supreme Court, nor this Court, has ever

expanded the narrow class to include the choice of whether to accept a mistrial or

to request an Allen charge. In the absence of case law on point, we decline to add

to the list of a client’s fundamental decisions. Put differently, we decline to expand

the circumstances that erode defense counsel’s authority at trial. Defense counsel

in a criminal trial is more than an adviser to a client with the client’s having the

final say at each point. He is an officer of the court and a professional advocate

pursuing a result -- almost always, acquittal -- within the confines of the law; his

chief reason for being present is to exercise his professional judgment to decide

tactics.

       Federal courts are “forever adding new stories to the temples of

constitutional law, and the temples have a way of collapsing when one story too

many is added.” Douglas v. Jeannette, 63 S.Ct. 877, 889 (1943) (Jackson, J.,

concurring in part and dissenting in part). When the defendant is given the last

word about how his case will be tried, the defendant becomes his own trial lawyer.

If we add to the list of circumstances in which a defendant can trump his counsel’s


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decision, the adversarial system becomes less effective as the opinion of lay

persons are substituted for the judgment of legally trained counsel. The sound

functioning of the adversarial system is critical to the American system of criminal

justice. We intend to defend it.

        Other circuits have been reluctant to expand the list of fundamental rights set

forth by the Court in Jones and, instead, seem to have construed the list as

exhaustive. See Sistrunk v. Vaughn, 96 F.3d 666, 670 (3rd Cir. 1996); United

States v. Boyd, 86 F.3d 719, 723 (7th Cir. 1996). But today we need not decide

whether the list is really exhaustive. In this case, we must only decide whether the

decision not to request a mistrial (in circumstances like those here) is a

fundamental decision that belongs to the defendant or whether it is a tactical

decision left to the province of defense counsel.2

        The Eighth Circuit has determined that a decision of whether to request a

mistrial in a criminal trial is a tactical decision defense counsel can make even

without consulting at all with the client. See Walker v. A.L. Lockhart, 852 F.2d

379 (8th Cir. 1988); see also United States v. Washington, 198 F.3d 721, 723 (8th



    2
     Defendant does not argue ineffective assistance of counsel under the two-part test set out in
Strickland v. Washington, 104 S.Ct. 2052 (1984). Instead, he argues that defense counsel was per
se ineffective by not complying with Defendant’s expressed wishes to seek a mistrial. But after
applying the Strickland test, we conclude that defense counsel did not act unreasonably.

                                                5
Cir. 1999) (decision to request mistrial and decision not to request mistrial are both

tactical decisions left to defense counsel who need not consult client).

      In addition, in Watkins v. Kassulke, 90 F.3d 138 (6th Cir. 1996), the Sixth

Circuit concluded that the decision to consent to what was, in effect, a mistrial is a

decision entrusted to trial counsel; counsel’s decision will bind the defendant

regardless of whether the defendant participates in the decision. See id. at 143.

While Watkins involves a claim that the defense counsel erred by requesting a

mistrial -- in contrast to the decision before us to not request a mistrial -- we

believe Watkins to be instructive in this case. The reasoning upon which Watkins

was based is identical to those reasons the Eighth Circuit expressed in Walker: the

handling of mistrial issues are matters of trial strategy. See id.; see Walker, 852

F.2d at 382; see also Washington, 198 F.3d at 723 (decision to request mistrial

treated same as decision not to request mistrial).

        Also, the Seventh Circuit, addressing a different kind of ineffective

assistance of counsel claim, has described “[t]he decision whether to move for a

mistrial or instead to proceed to judgment with the expectation that the client will

be acquitted [as] one of trial strategy.” Galowski v. Murphy, 891 F.2d 629, 639

(7th Cir. 1989).




                                           6
      We, therefore, reject Defendant’s contention that the decision to request a

mistrial is a fundamental decision that only a defendant can make. For the reasons

they have explained, we join the other circuits that address this kind of issue. We

conclude that the decision to refrain from asking the court for a mistrial is a tactical

decision entrusted to defense counsel, binding the defendant even when the

defendant expressed a contrary wish to his lawyer.

      AFFIRMED.




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