                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10452
                                                       17-10456
                Plaintiff-Appellee,
                                                D.C. Nos.
 v.                                             2:11-cr-00296-JAM-3
                                                2:11-cr-00296-JAM-4
RUBEN RODRIGUEZ and JAIME
MAYORGA,                                        MEMORANDUM*

                Defendants-Appellants.

                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                           Submitted August 16, 2018**
                            San Francisco, California

Before:      O’SCANNLAIN and BEA, Circuit Judges, and McLAUGHLIN,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Mary A. McLaughlin, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
      Defendants-Appellants Jaime Mayorga and Ruben Rodriguez (together,

“Defendants”) bring this interlocutory appeal from the district court’s denial of

their motion to dismiss the indictment on double jeopardy grounds. We have

jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. United States v.

Bates, 917 F.2d 388, 392 (9th Cir. 1990). We review the denial of a motion to

dismiss the indictment de novo, id., but the district court’s underlying finding of

manifest necessity is reviewed only for abuse of discretion, United States v. Bonas,

344 F.3d 945, 947–48 (9th Cir. 2003). We affirm.

      On abuse of discretion review, the proper inquiry is “whether the trial

court’s application of the correct legal standard was (1) ‘illogical,’ (2)

‘implausible,’ or (3) without ‘support in inferences that may be drawn from the

facts in the record.’” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.

2009). The district court’s finding of manifest necessity for a mistrial was neither

illogical, implausible, nor without support in the record.

      In evaluating a finding of manifest necessity for abuse of discretion, this

court has considered whether the factual record shows that “the district court ‘(1)

heard the opinions of the parties about the propriety of the mistrial, (2) considered

the alternatives to a mistrial and chose[] the alternative least harmful to a

defendant’s rights, [and/or] (3) acted deliberately instead of abruptly.’” United

States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008) (quoting Bates, 917 F.2d


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at 396). The narrow goal of this court’s review is to “weed out ‘irrational or

irresponsible behavior by the trial judge.’” Id. (quoting Bates, 917 F.2d at 395).

Here, the record shows—and Defendants concede—that the district court (1) heard

the parties on the issue of mistrial, (2) solicited, considered, and investigated

possible alternatives to mistrial, including substitution of another district judge,1

and (3) acted “deliberately instead of abruptly” in ordering the mistrial.

      According to Defendants, the district court nevertheless abused its discretion

in declaring a “manifest necessity” without finding, on the record, that it was not

possible to (1) ask the jury whether they would be able to hear the case to

conclusion if a further continuance of one or two weeks was granted, (2) ask other

Eastern District judges besides those based in Sacramento, such as those based in

Fresno, California, to step in or seek to have a visiting judge from another district

preside over the remainder of the case, or (3) make further inquiries about Judge




1
 The district court’s attempts to find an alternative to mistrial through internal court
communications are sufficiently supported in the factual record. See Bonas, 344
F.3d at 949 (“There may well be peripheral factual matters a district judge may rely
on without making a formal record—for example, matters pertaining to the internal
operation of the court.”).

                                           3                             17-10452, 17-10456
Shubb’s availability to hear the case again.2 The district court did not abuse its

discretion in determining that these alternatives would not be practical or adequate.

      With regard to Defendants’ first proposal, the timing of Judge Mendez’s

return was inherently uncertain, as evidenced by Judge England’s statements at the

mistrial hearing. The district court had a reasonable basis to worry that an

indefinite continuance would impair jurors’ ability to remember evidence already

presented. Thus, the district court did not abuse its discretion in determining that

an indefinite continuance of trial was not a viable alternative to mistrial.

      With regard to Defendants’ second proposal, it is undisputed that Judge

England made inquiries of the other Sacramento-based district judges, and

Defendants concede that those inquiries “may be put informally on the record.”

Defendants cite no precedent to support their argument that this effort was

insufficient because the district court did not make a formal finding on the record

that no federal district judge could take over the case. Far from presenting an

“obvious and adequate alternative[] to aborting the trial,” such an exhaustive

requirement would place an unreasonably onerous burden on the judge tasked with


2
  Defendants also argue that because this appeal concerns the second mistrial in
Defendants’ case, the panel should be particularly solicitous about protecting the
rights secured by the Double Jeopardy Clause. Whatever the merits of that point,
however, it does not alter the standard for showing that a “manifest necessity”
actually existed on this particular occasion. The determination of whether a
“manifest necessity” to declare a mistrial has arisen at any given time is left to the
discretion of the district court. Bonas, 344 F.3d at 948.

                                           4                            17-10452, 17-10456
dealing with the sudden illness of the presiding judge. Defendants argue that

Judge England should have at least contacted Eastern-District judges based in

Fresno, but even Fresno is 170 miles from the courthouse in Sacramento. Indeed,

Defendants themselves did not suggest substitution by a non-Sacramento based

judge when given an opportunity to propose alternatives at the mistrial hearing. In

the circumstances, the district court did not abuse its discretion in finding a

manifest necessity for mistrial after looking for a replacement judge among the

other district judges in the Sacramento area.

      Finally, upon Defendants’ request, Judge England specifically asked Judge

Shubb, who had presided over Defendants’ first trial, if he was available to step in

again. Judge England took a brief recess to contact Judge Shubb, and then

reported that Judge Shubb was unavailable, which fact was placed in the record on

the transcript of the hearing. With no authority to compel Judge Shubb to hear the

case, he had no choice but to accept Judge Shubb’s abstention. Therefore, the

district court did not abuse its discretion in determining that substitution by Judge

Shubb was not a viable alternative to mistrial.

      In sum, the record does not reveal any “irrational or irresponsible behavior

by the trial judge.” Chapman, 524 F.3d at 1082 (quoting Bates, 917 F.2d at 395).

The district court did not abuse its discretion in finding a manifest necessity to




                                           5                            17-10452, 17-10456
declare mistrial. Therefore, it properly denied Defendants’ motion to dismiss the

indictment.

      AFFIRMED.




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