                                                                     [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                         FILED
                                                                    U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                          APRIL 6, 2007
                                        No. 06-12664                   THOMAS K. KAHN
                                                                            CLERK


                           D. C. Docket No. 05-00094 CR-1-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                            versus

HOA QUOC TA,

                                                           Defendant-Appellant.



                      Appeal from the United States District Court
                         for the Northern District of Georgia


                                       (April 6, 2007)

Before DUBINA and COX, Circuit Judges, and SCHLESINGER,* District Judge.

PER CURIAM:
______________________
*Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
       Hoa Quoc Ta appeals the district court’s denial of the motion to dismiss the

indictment on double jeopardy grounds after the court declared a mistrial over

defense counsel’s objection. The trial court, sua sponte, declared a mistrial after

defense counsel repeatedly refused to comply with the trial judge’s instructions

regarding opening statement and argued with the judge in view of the jury.

Defendant then perfected this appeal.1 We affirm.

                                          I.Background

       Hoa Quoc Ta and two codefendants were indicted for kidnaping, in

violation of 18 U.S.C. § 1202, carjacking, in violation of 18 U.S.C. § 2119, and

using and carrying a firearm in connection with a crime of violence, in violation of

18 U.S.C. § 924(c). The codefendants pled guilty prior to trial and Hoa Quoc Ta’s

trial started on January 30, 2006. After the jury was empaneled and administered

the oath, the Government made its opening statement the following day. Counsel

for defendant began his opening statement immediately after the Government

completed its remarks. Well into defense counsel’s opening statement, the

Government objected to counsel’s recitation of irrelevant facts.2 At the time the

       1
           Defendant Hoa Quoc Ta’s motion to stay re-trial pending interlocutory appeal was granted.
       2
        Having only the written transcript this Court is hampered in making a precise assessment
of the opening remarks duration, nevertheless, the Court notes that the Government’s opening
statement spanned ten pages of the transcript and the Government’s objection was made after
defense counsel spoke for ten pages.

                                                  2
objection was made, defense counsel had not yet addressed the facts of the

kidnaping, carjacking, or the related firearms violations for which defendant was

charged. In response to the objection, the trial judge instructed defense counsel to

“move on to more germane facts you expect the evidence to show.”

       After Hoa Quoc Ta’s counsel continued his opening for several more

minutes without addressing the operative facts of the crimes alleged, the trial

judge had the courtroom deputy deliver a note to defense counsel stating it was

time to begin wrapping up his opening statement. Counsel again continued with

his opening, and shortly thereafter, the following exchange occurred between the

trial judge and defense counsel:3

       Court: Counselor, I hate to interrupt. Let’s bring it to a close.
       Counsel: I will your Honor, thank you.
       Court: Let’s bring it to a close.
       Counsel: I will your Honor. It’s a long case, Judge.

Defense counsel resumed delivery of his remarks, without reaching the events

charged in the indictment, and the court again instructed counsel to bring his

opening statement to a close:




       3
         At this point, defense counsel’s entire remarks spanned some nineteen pages, almost twice
the amount of pages used from the time the Government’s objection was first raised and the time the
trial judge first admonished defense counsel to wrap up his opening.


                                                3
       Court: Counsel, I’m going to give you two minutes and don’t argue your
       case. You can tell the jury what you anticipate the evidence will show. You
       have just two minutes, two minutes.

After this instruction from the court, defense counsel began to argue4 with the trial

judge in the presence of the jury:

       Counsel: Judge –
       Court: Two minutes.
       Counsel: I need more than two minutes.
       Court: I’m not going to give you more than two minutes, Counsel, go ahead.
       Sum it . . . up in two minutes.
       Court: May I approach, sir?
       Court: No, you may not approach. Go ahead and do as I directed, bring this
       opening statement to a conclusion.
       Counsel: Judge, you didn’t give me a time limit.
       Court: You knew it was 30 minutes.
       Counsel: No, I don’t [sic].
       Court: I want you to do it. Go ahead, I’m giving you two additional minutes,
       I’ve given you more. Go ahead and bring your . . . opening statement to a
       conclusion.
       Counsel: Will you give me ten –
       Court: No.
       Counsel: – so I can finish?
       Court: No, I will not give you ten minutes, no.
       Counsel: I haven’t gotten to the kidnaping, sir.
       Court: Take the jury to the jury room.

After the jury was removed from the courtroom, the trial judge again told defense

counsel to finish his opening remarks in two minutes, to which defense counsel

responded that he could not comply with the trial judge’s instruction:


       4
       The district judge to whom the case was subsequently transferred listened to the tape of the
exchange and confirmed that it was argumentative in nature.

                                                4
     Court: Counselor, I want you to bring it to a close in two minutes. If you
     can’t do that –
     Counsel: I can’t do that Judge, and I’d like to be heard.
     Court: Let the record reflect that the Court is going to declare a mistrial
     because counsel is not cooperating with the Court.
     Counsel: Your Honor, I will attempt to do that, but I cannot –
     Court: Court will be in recess. Court’s in recess.

When court resumed in chambers the following exchange took place:

     Court: Let the record reflect that the Court is going to declare a mistrial.
     Counsel knows – if he’s not familiar with the opening, he had up to 30
     minutes. The Court sent a warning telling him to bring his closing [sic]
     argument to a conclusion; he would not do it. And he persisted, he wants to
     spend as much time with his opening statement as he wants. He cannot
     abide by the Court’s instruction; therefore, the Court is going to declare a
     mistrial and have this case referred to someone else because I cannot work
     with a lawyer who is not going to cooperate with the Court. Let the record
     so reflect.
     Counsel: Your Honor, may I be heard, please, sir?
     Court: You can be heard, make it brief.
     Counsel: I will.
     Court: Make it brief.
     Counsel: First, I’d like to apologize. I did not mean to show the Court
     disrespect and so I’d like to apologize for that. I had no idea in any way,
     shape, or form, I give you my word, that I was limited to 30 minutes. And
     when you sent me the note I tried to speed up but I had to get to the crime in
     our defense. Ths is a complicated case, it’s going to last over a week, my
     client’s facing life in prison. And so I do want to apologize to you and I
     want to make one thing very clear, that I did not intentionally in any way
     hoard more time than I was allowed. I have never been before you before. It
     did not dawn on me that in a case of this magnitude that you would limit me
     to 30 minutes in an opening.
     Court: Did you ask the Court for additional time in which to make an
     opening statement?
     Counsel: I didn’t know to, your Honor. I didn’t know your rule was 30
     minutes. As you know, there is no rule, and your rule, I understand –

                                        5
      Court: How much time did you spend?
      Government: Your Honor, the practice, as I understand it, in federal court is,
      you know, your opening statement is fairly short. And I know [defense
      counsel] has tried other cases in federal court. I have never heard such a
      long opening statement in a case like this.
      Court: Well, I just don’t like what has happened.
      Counsel: Judge –
      Court: I think it’s best we just clean it up and –
      Counsel: May I make a request, Judge –
      Court: – be assigned to another judge.
      Counsel: May I make a request?
      Court: What’s that?
      Counsel: I think it would be a mistake to continue with a mistrial in this
      case, and here’s the reason: We have all of our witnesses from out of town.
      Court: I understand that, but –
      Counsel: I know, and my client –
      Court: And the Court –
      Counsel: And, Your Honor –
      Court: – specifically asked you in a note to you to bring it to a close.
      Counsel: And I will do that . . . I just think it’s a mistake to commit –
      declare a mistrial.
      Court: I’m sorry about that, but in fact the government is bearing this
      expense, anyway. But anyway, I’m going to declare a mistrial, excuse the
      jury, and this case will be reassigned. Thank you and good day.

The parties then returned to open court, and the court made the following

statement for the record:

      Court: Let the record reflect that the Court found it necessary to
      declare a mistrial in this case because counsel for the defendant
      would not follow the Court’s instructions to bring his opening
      statement to a close after being told to do so on two or three
      occasions. The first occasion was in writing, writing submitted to
      counsel by the Court’s deputy clerk, and the Court made I think two
      or three repeated requests that counsel bring his closing [sic]
      argument to a close within two minutes. Counsel refused to follow

                                         6
       the Court’s instruction and an argument between the Court and
       counsel ensued in the presence of the [jury]5. For those reasons the
       Court declared a mistrial and I am going to have this case reassigned
       to another judge.

       The next day the trial judge issued a written order reiterating the reasons for

the mistrial,6 recusing himself from the case, and referring the case for

reassignment to the next district judge in the rotation. Defendant then moved to

dismiss the indictment and bar retrial on double jeopardy grounds, arguing that the

trial court abused its discretion by declaring a mistrial in the absence of manifest

necessity or prejudice. Defendant also argued that the trial court failed to consider

alternatives before declaring a mistrial.

       The Government responded that dismissal was not warranted because the

trial court properly declared a mistrial, as there was manifest necessity. According

to the Government, defense counsel’s refusal to comply with the trial judge’s order

and the argument between the judge and counsel in the presence of the jury likely

created juror bias against defense counsel. Thus, the mistrial protected the

defendant from prejudice. The Government also disputed that double jeopardy

       5
        While the transcript indicates that the court stated in the presence of the “court,” it appears
from the context that the court was referring to the exchange that occurred in the presence of the jury.
        6
          “[C]ounsel for Defendant would not follow the Court’s instructions to bring his opening
statement to a close after being told to do so on multiple occasions . . . and then began to argue with
the Court about the additional time he needed to conclude his opening statement, notwithstanding
the jury being present to witness defense counsel’s obstinance.”

                                                   7
precluded it from retrying the defendant, noting that defense counsel did not raise

the argument before the trial court; defense counsel only argued that it would be a

mistake to grant a mistrial in this case because “we have all of our witnesses from

out of town.”

      The second district judge reassigned to the case denied the defendant’s

motion to dismiss. In concluding that the exchange resulted in manifest necessity,

the district court noted that the trial court’s evaluation of prejudice was entitled to

deference. Reviewing the record, the new judge concluded that the trial court had

not acted abruptly or erratically in light of the terse exchanges that escalated to

counsel’s refusal to comply with the court’s order. The newly assigned judge

noted that the original trial judge had been on the bench for about 30 years and

had a reputation for fairness and a tolerant demeanor. Additionally, the second

district judge reviewed the opening statement and found it “bogged down in

factual details not characteristic of an opening statement” and was rather

“delivered more in the manner of a summation.” The second district judge also

concluded that the incident created a risk of juror bias, and that the mistrial

protected defendant from any prejudice. The district judge further found that,

although the trial judge should have considered alternatives, here, any curative

instruction could have made the situation worse.

                                           8
        Defense counsel then moved for an interlocutory appeal and to stay the

proceedings pending the outcome of the appeal. The district court granted the

stay.

                               II.Standard of Review

        This Court reviews the district court’s denial of a motion to dismiss an

indictment for abuse of discretion. United States v. Quiala, 19 F.3d 569, 570 (11th

Cir. 1994); United States v. Chica, 14 F.3d 1527, 1530 (11th Cir. 1994). An order

declaring a mistrial is reviewed by this Court “to determine whether it was

manifestly necessary, taking into consideration all circumstances.” United States

v. Berroa, 374 F.3d 1053, 1056 (11th Cir. 2004), cert. denied, 543 U.S. 1076

(2005) (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165

(1824)). This Court gives deference to the trial judge’s finding of manifest

necessity, but the deference “varies according to the circumstances, which

circumstances include the basis for the order of mistrial and the trial judge’s

exercise of sound discretion in making the decision.” Id. (citing Arizona v.

Washington, 434 U.S. 497, 509-10, n.28, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)).

Whether a mistrial is a manifest necessity is a fact-intensive inquiry and, therefore,

is not susceptible to a mechanical formulation. Chica, 14 F.3d at 1531. Moreover,

this Court reviews “the entire record in the case without limiting [itself] to the

                                           9
actual findings of the trial court.” Id.; accord Abdi v. Georgia, 744 F.2d 1500,

1503 (11th Cir. 1984). The government bears the heavy burden of establishing

manifest necessity. Chica, 14 F.3d at 1531 (citing Washington, 434 U.S. at 505,

98 S. Ct. at 830).

                                   III. Discussion

      The Double Jeopardy Clause of the Fifth Amendment protects a criminal

defendant from being subjected to repeated prosecutions or multiple punishments

for the same offense. U.S. Const. amend. V; see also United States v. Dinitz, 424

U.S. 600, 606 96 S. Ct. 1075, 1079, 47 L. Ed. 2d 267 (1976). Jeopardy attaches

once the jury is empaneled; once jeopardy has attached, the defendant has a right

to have the case decided by that jury, except under very limited circumstances.

Crist v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 2161, 57 L. Ed. 2d 24 (1978).

When a judge grants a mistrial without the defendant’s consent, the defendant may

have been deprived of the “valued right to have his trial completed by a particular

tribunal.” United States v. Jorn, 400 U.S. 470, 484, 91 S. Ct. 547, 557, 27 L. Ed.

2d 543 (1971) (citing Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837, 93

L. Ed. 974 (1949)); Quiala, 19 F.3d at 570.

      The Constitution protects the defendant’s valued right to have the trial

completed by a particular tribunal “by requiring that a trial judge declare a mistrial

                                          10
without the consent of the defendant only after it determines that mistrial is a

manifest necessity.” Abdi v. Georgia, 744 F.2d 1500, 1503 (11th Cir. 1984); see

also Perez, 22 U.S. (9 Wheat.) at 580; Illinois v. Somerville, 410 U.S. 458, 461, 93

S. Ct. 1066, 1069, 35 L. Ed. 2d 425 (1973); United States v. Bradley, 905 F.2d

1482, 1486 (11th Cir. 1990). While “manifest necessity” is not subject to precise

formulation, it is described as a “high degree of necessity.” Arizona v.

Washington, 434 U.S. 497, 506-07, 98 S. Ct. 824, 831, 54 L. Ed. 2d 717 (1978);

Abdi, 744 F.2d at 1503. In determining the existence of manifest necessity for a

mistrial, a trial court must exercise its sound discretion. Arizona, 434 U.S. at 506-

07, 98 S. Ct. at 831; Venson v. Georgia, 74 F.3d 1140, 1145 (11th Cir. 1996). In

exercising this discretion, “unquestionably an important factor to be considered is

the need to hold litigants on both sides to standards of responsible professional

conduct in the clash of an adversary criminal process.” Jorn, 400 U.S. at 485-86,

91 S. Ct. at 557.

      Appellant Hoa Quoc Ta argues that the mistrial was not supported by

manifest necessity, and, therefore, any retrial would violate double jeopardy.

According to Appellant, the record does not support any finding of manifest

necessity because the mistrial was not to his benefit, the trial judge failed to

consider alternatives, and the judge acted abruptly and without deliberation.

                                          11
Appellant also argues that the trial judge’s frustration with counsel was not a

sufficient reason to declare a mistrial. Further he asserts that the second district

judge erred by deferring to the trial judge’s determinations because the record was

devoid of any evidence, and that defense counsel neither engaged in any

misconduct nor refused to obey the trial judge’s order.

      The Government responds that the mistrial was supported by a manifest

necessity because of defense counsel’s repeated refusal to heed the trial judge’s

instructions, counsel’s argument with the trial judge in the jury’s presence, and the

trial judge’s obvious frustration with counsel, which likely caused prejudice to the

defendant. Moreover, the Government contends that the trial judge did not act

abruptly, but rather excused the jury and moved the parties to chambers to discuss

the mistrial. The Government notes that defense counsel never requested a

curative instruction or any other alternative measure, but it contends that a curative

instruction would not have relieved the potential prejudice. Reviewing the record

in this case, we conclude that the trial court did not abuse its discretion in

discharging the jury. See Jorn, 400 U.S. at 486-87, 91 S. Ct. at 558.

      The trial judge clearly indicated that the mistrial was declared because

defense counsel willfully refused to comply with the judge’s repeated admonition

to bring his opening statement to a close, and that he then proceeded to argue with

                                          12
the judge in the presence of the jury. The second district judge deferred to the

original trial judge’s determination that the argument between the court and

counsel in the presence of the jury created a risk of bias and prejudice against

defense counsel. There was a significant risk that a juror might believe that

defense counsel was not acting professionally toward the trial judge. In this case,

the jury heard the trial judge and defense counsel engaged in an exchange that

showed both the judge’s frustration with counsel and counsel’s refusal to obey the

judge’s instructions. The second district judge who listened to the tape of the

proceeding noted that it was indeed argumentative in nature. In light of this, the

original trial judge could have reasonably believed that the jury thought that

defense counsel was incompetent or unscrupulous. See Washington, 434 U.S. at

512-13. Moreover, based on defense counsel’s conduct displayed before the jury

at the beginning of trial, the trial judge had no assurances that counsel would obey

any further instructions and rulings during the remainder of the trial. Giving due

deference to the trial judge’s determination, it appears to this Court that the

mistrial was to Appellant’s benefit.

      While it is favored that the trial court make manifest necessity

determinations explicit in the record, the trial court is not required to make such

statements. See id. at 516-17; Venson, 74 F.3d at 1146. It would not have been

                                          13
an abuse of discretion for the trial judge to conclude that the argument, and the

judge’s comments and admonitions to defense counsel, communicated to the jury

that the trial judge considered defense counsel inept or incompetent, thereby

discounting defense counsel’s credibility and effectiveness before the jury. There

was a significant risk that the jury could have developed a bias against defense

counsel due to his argument with the trial judge, and this bias against defense

counsel could have transferred to Appellant Hoa Quoc Ta. Generally, the trial

court is in the best position to gauge potential bias and, therefore, special

deference is due when the grounds for the mistrial relate to jury prejudice.

Washington, 434 U.S. at 510-14, 98 S.Ct. at 832-834; Abdi, 744 F.2d at 1503. In

such instances the trial judge is in a prime position to observe the jurors, the

witnesses, and the attorneys so as to evaluate the scope of the prejudice.

Reviewing the record, we are confident that the trial judge did not abuse his

discretion in concluding that the argument that transpired in view of the jury may

have prejudiced how a jury would perceive and evaluate Hoa Quoc Ta at trial,

thereby resulting in a manifest necessity for a mistrial.

      Generally the trial court should consider alternatives before declaring a

mistrial, yet manifest necessity may be present even when a less severe alternative

exists. Abdi, 744 F.2d at 1503. At no time did defense counsel offer any

                                          14
alternatives; nor did the trial court discuss any alternatives. Although the trial

court is not required to choose a particular alternative, Venson, 74 F.3d at 1145, it

is required to consider alternatives. Quiala, 19 F.3d at 572. A failure to consider

alternatives “subjects the [trial] court’s abrupt declaration of a mistrial to close

appellate scrutiny.” Quiala, 19 F.3d at 572; see also Grandberry v. Bonner, 653

F.2d 1010, 1014 (5th Cir. Unit A, 1981).7 Here, in ruling on the motion to

dismiss the indictment, the district judge concluded that any curative instruction

could have increased the chance of bias and prejudice. Reviewing the entire

record we find the district judge did not abuse his discretion in making such a

determination.

       A trial court also abuses its discretion when it acts “irrationally” or in an

“abrupt, precipitous or erratic manner” in granting a mistrial. Washington, 434

U.S. at 514; Bradley, 905 F.2d at 1488. The trial court’s failure to consider

alternatives to a mistrial is evidence of abruptness. Quiala, 19 F.3d at 572.

Although quick decisions do not necessarily indicate abruptness, Abdi, 744 F.2d at

1504, the pace of the decision may “reinforce the impression of an abrupt

decision.” Id. (citing Grandberry, 653 F.2d at 1014). A decision is abrupt when it


       7
         In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the old Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.

                                               15
is “inappropriately fast.” Id. (concluding that a quick decision was not abrupt

because the misconduct was particularly flagrant). Another judge in this same

situation might have responded to defense counsel’s conduct differently or stated

his consideration of alternatives to a mistrial more directly on the record.

Nevertheless, the trial judge who was present in the courtroom observed the jurors,

assessed the likelihood of prejudicial effect, and made the swift but deliberate

decision that the mistrial was to defendant’s benefit and manifestly necessary.

Abdi, 744 F.2d at 1504. The second district judge who read the transcript and

listened to the proceeding, and who was able to at least discern tone and inflection,

which are unavailable from the written transcript, similarly determined that the

mistrial was in the defendant’s interest. For this determination we find no abuse

of discretion.

      Upon careful review of the record we find that the declaration of a mistrial

was not an abuse of discretion and therefore retrial of defendant Hoa Quoc Ta is

not barred. Accordingly, we affirm the district court’s decision denying the

motion to dismiss.

      AFFIRMED.




                                          16
