                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-14-2004

USA v. Rivera
Precedential or Non-Precedential: Precedential

Docket No. 03-1658




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                     PRECEDENTIAL       Martial A. Webster
                                        116 Queen Cross Street
  IN THE UNITED STATES COURT            Frederiksted, St. Croix
          OF APPEALS                    United States Virgin Islands 00840
     FOR THE THIRD CIRCUIT              Counsel for Appellant Kelly

            Case No: 03-1658            Beverly A. Edney
  UNITED STATES OF AMERICA              P.O. Box 4958
                     v.                 Kingshill, St. Croix
            FELIPE RIVERA,              United States Virgin Islands 00851
                     Appellant          Counsel for Appellant Danielson
       ______________________
            Case No: 03-1659            David M. Nissman
  UNITED STATES OF AMERICA              United States Attorney
                     v.                 St. Clair Theodore (Argued)
       HOMER WILLIS KELLY,              Assistant United States Attorney
                     Appellant          1108 King Street, Suite 201
       ______________________           Christiansted, St. Croix
            Case No: 03-1660            United States Virgin Islands 00820
  UNITED STATES OF AMERICA              Counsel for Appellee
                     v.                        ______________________
        LUDVIG DANIELSON,
                     Appellant                OPINION OF THE COURT
       ______________________                 ______________________
  On Appeal From the District Court
           of the Virgin Islands        SMITH, Circuit Judge.
District Judge: The Honorable Raymond
                 L. Finch                       This case involves the application
     (D.C. V.I. 02-cr-00167-1; 3; 4)    of the Double Jeopardy Clause where a
           Argued May 6, 2004           District Judge has sua sponte declared a
       ______________________           mistrial over a defense objection. The
Before: BARRY, AMBRO, and SMITH,        defendants were indicted for violations of
              Circuit Judges            21 U.S.C. §§ 841 and 846, and 18 U.S.C.
                                        § 2. Near the close of the Government’s
     (Filed:   September 14, 2004 )     case, a key witness injured his leg and was
                                        unable to appear in court as scheduled.
Jeffrey B. C. Moorhead (Argued)         Before the witness’s prognosis could be
C.R.T. Brow Building                    ascertained by counsel or the District
1132 King Street                        Court, and over the objection of
Christiansted, St. Croix                defendants, the District Judge declared a
United States Virgin Islands 00820      mistrial, ordered the matter rescheduled
Counsel for Appellant Rivera            for a new trial and denied a motion to
dismiss the indictment. The defendants            Tuesday, February 18, the day after
brought this timely appeal. We conclude           Presidents’ Day. Schoenbaum returned to
that the declaration of a mistrial was not        Orlando, Florida for the long weekend.
manifestly necessary and, as such,
reprosecution is barred.                                 Before trial resumed on Tuesday,
                                                  February 18, the Government informed the
                     I.                           Court that Schoenbaum had been
       On December 3, 2002, the United            hospitalized with a broken leg. According
States Attorney for the District of the           t o t h e G o v e r n m e n t ’ s a t to r n e y,
Virgin Islands filed an indictment against        Schoenbaum had undergone surgery
Felipe Rivera, Homer Willis Kelly and             during which a plate and several pins had
Ludvig Danielson, charging each with one          been placed in his leg. The Government’s
count of conspiracy to possess with the           information was that Schoenbaum was still
intent to distribute more than five               in the hospital but that he was to be
kilograms of cocaine in violation of 21           discharged in the near future. The trial
U.S.C. §§ 841(a)(1), 841(b)(1)(a) and 846.        was recessed until Thursday, February 20.
The indictment also charged each
defendant with one count of attempting to                 When court reconvened on the
possess with the intent to distribute more        morning of February 20, the attorney for
than five kilograms of cocaine in violation       the Government explained that all that
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a),          remained in the presentation of its case
and 846, and 18 U.S.C. § 2.1                      were tape recordings that would be played
                                                  to the jury and the rest of the direct
       A jury was empaneled and trial             testimony of Schoenbaum. 2            The
commenced on Monday, February 10,                 Government explained, however, that
2003. The trial proceeded over the course         Schoenbaum would not be able to travel
of the week, with the Government                  until the following week. Upon learning
presenting its case. On Friday, February          this, counsel for co-defendant Miranda-
14, the Government began the direct               Colon, stated: “[Y]our Honor, for the
examination of its last witness,                  record . . . we’re going to move for a
Christopher Schoenbaum.       When the
Friday session concluded, the District
Court scheduled the resumption of trial for         2
                                                       The exact nature of these tapes is
                                                  unclear from the record. It is clear that
                                                  Schoenbaum was heard on at least one
  1
     Two other individuals, Claude Earl           tape, and that the recordings were
Francis and Daniel Miranda-Colon, were            lengthy. One of these tapes had been
charged in the same information and               played to the jury, but 20 had not as of
went to trial with the appellants. They           the time trial was to resume on February
are not parties to the present appeal.            18, 2003.

                                              2
mistrial.”       Miranda-Colon’s counsel                  reason for possessing the medication, also
explained that he was concerned about the                 refused to allow him to board the plane
lapse of time between the jury hearing the                without a doctor’s waiver. Government
Government’s direct examination and the                   counsel noted that Schoenbaum was
e v e n t u a l c r o s s -e x a m i n a t io n o f       scheduled for an appointment with his
Schoenbaum by the defendants. Further,                    doctor at 10:00 A.M. that very day and
Miranda-Colon’s attorney was concerned                    advised the Court that “within a few hours
that, if Schoenbaum were required to use a                we [will] know whether or not the doctor
wheelchair, the jury would be more                        will release [Schoenbaum] to get on the
sympathetic to his testimony. Counsel for                 plane.”
the remaining defendants joined in support
of the motion.             Counsel for Kelly                      The defendants requested that the
commented that he had concerns about two                  Government go forward or that the Court
of his witnesses going on vacation if the                 strike Schoenbaum’s testimony. Rivera’s
trial were to be postponed. Danielson’s                   attorney informed the Court that he did not
counsel cited scheduling conflicts if the                 want a mistrial. Counsel for Miranda-
trial were to be postponed. Counsel for                   Colon instead suggested that “perhaps
Rivera expressed his concern that he                      [they] could resume testimony tomorrow.”
would look like “some kind of animal”                     The Government pressed the Court for
cross-examining Schoenbaum while he                       more time. The following discussion then
was recuperating.             The Government              ensued:
opposed the defendants’ motion for a
mistrial. The District Court ruled promptly                  THE COURT: The fact of the
and summarily: “Very well. Motion for                        matter is that in this case there is
mistrial is denied.” The District Judge                      inconvenience to everyone, Court,
made no other statements, nor did he                         counsel, the Government. I have
provide the defendants the opportunity to                    140 people ready to go in another
seek reconsideration of his ruling. The                      trial in anticipation of something
Court recessed the jury for the day, and                     like this happening.       The big
scheduled trial to resume on M onday,                        problem for me in this case is the
February 24.                                                 way in which the case has
                                                             unfolded. That is, with frequent
       When February 24th arrived, the                       inte rruptions, n u m e r o us
attorney for the Government informed the                     interruptions, the jurors having to
Court that Schoenbaum had attempted to                       sit for long periods of time,
board a plane to return to the trial, but was                sometimes for days, as a matter of
turned back when narcotic medications                        fact. Together with the fact that the
and syringes were found in his luggage.                      large portion of the testimony was
According to the prosecutor, the airline,                    recorded, and a large portion of it,
after questioning Schoenbaum as to his                       recorded testimony, is still to be

                                                      3
   presented to the jurors. I find that                  We have jurisdiction over the
   the nature of the recording                   District Court’s rejection of the
   particularly is such that jurors are          defendants’ motion to dismiss under
   not likely to recall properly and fit         Abney v. United States, 431 U.S. 651, 662
   into the proper sequence of events            (1977).        While an order denying a
   and give proper weight to this                motion to dismiss an indictment on double
   recorded testimony in light of the            jeopardy grounds “lacks the finality
   continued interruptions and the               traditionally considered indispensable to
   long delay. And I [am] dispose[d]             appellate review,” Abney counsels that
   to declaring a mistrial, and will so          such orders satisfy the collateral order
   declare. I will declare a mistrial.           doctrine articulated in Cohen v. Beneficial
   Gentlemen and ladies, will you                Industries Loan Corp.         Id. at 659
   proceed downstairs to Magistrate              (discussing Cohen v. Beneficial Industries
   Resnick, and he will reschedule the           Loan Corp., 337 U.S. 541, 546 (1949)).
   matter. I will discharge the jury.            Because the District Court denied the
                                                 defendants’ motion to dismiss on what
   [Counsel for Miranda-Colon]: For the          were clearly double jeopardy grounds, the
   record, Defendant Colon would like to         jurisdictional requisites of § 1291 have
   object and ask for a dismissal.               been met. Id. at 662.

   THE COURT: Denied.                                                 III.
                                                         The Double Jeopardy Clause
   [Counsel for Rivera]: Denied?                 forbids that “any person be subject for the
                                                 same offence to be twice put in jeopardy
   [Counsel for Kelly]: I join in that.          of life or limb.” U.S. Const. amend. V.
                                                 Under that clause, a defendant has a
   THE COURT: Denied.                            “valued right to have his trial completed
                                                 by a particular tribunal,” Wade v. Hunter,
That same day, February 24, a M agistrate        336 U.S. 684, 689 (1949), which is a right
Judge issued an order re-scheduling trial        held by the individual, independent of the
for Monday, May 5, 2003. On March 5,             public interest in conducting “fair trials
2003, the District Court issued a “notice”       designed to end in just judgments,”
which read: “Defendants moved for a              Arizona v. Washington, 434 U.S. 497, 503
mistrial on February 24, 2003. At a              n.11 (1978) (internal quotation and citation
hearing held on such motion, for the             omitted).
reasons stated on the record, the Court
granted Defendants’ motion.” This timely                Protections against double jeopardy
appeal followed.

                    II.

                                             4
are ancient3 and we interpret the Double          Accordingly, a defendant may not be
Jeopardy Clause in light of “its origin and       reprosecuted where a first trial has ended
the line of its growth.” Green v. United          with an improperly declared mistrial.
States, 355 U.S. 184, 199 (1957)                  United States v. Perez, 22 U.S. (9 Wheat)
(Frankfurter, J., dissenting) (quoting            579 (1824).
Gompers v. United States, 233 U.S. 604,
610 (1914)).         The Double Jeopardy                  A mistrial “may be granted upon
Clause’s prohibition of multiple trials           the initiative of either party or upon the
evolved in reaction to “a time when               court’s own initiative.” United States v.
English judges served the Stuart monarchs         Scott, 437 U.S. 82, 92 (1978). 5 Ordinarily,
by exercising a power to discharge a jury         where the defendant seeks a mistrial, “[n]o
whenever it appeared that the Crown’s             interest protected by the Double Jeopardy
evidence would be insufficient to convict.”       Clause is invaded.” Id. at 100. The
W a sh i n g to n , 434 U .S . at 507. 4          Government may, therefore, bring a
                                                  subse que nt r e pr osec ution with o ut
  3
                                                  offending the Constitution.        Love v.
     The Greek orator, Demosthenes,               Morton, 112 F.3d 131, 133 (3d Cir. 1997).6
explained that “the laws forbid the same
man to be tried twice on the same issue.”
Whalen v. United States, 445 U.S. 684,            188, 189 (1795)).
699 (1980) (Rehnquist, J., dissenting)
                                                    5
(citing 1 Demosthenes 589 (J. Vince                    See Washington, 434 U.S. at 498
trans., 4th ed. 1970)). Roman law                 (holding that defense counsel’s improper
contained similar prohibitions, with the          statements created manifest necessity for
precept in the Digest of Justinian that           the state trial court to grant the
“the governor should not permit the same          prosecution’s motion for a mistrial);
person to be again accused of a crime of          United States v. Valadez-Camarena, 163
which he had been acquitted.” Jay A.              F.3d 1160, 1163 (10th Cir. 1998) (noting
Sigler, Double Jeopardy: The                      that reprosecution is usually barred
Development of a Legal and Social                 where the prosecution requested the
Policy 2 (1969); see also Bartkus v.              mistrial).
Illinois, 359 U.S. 121, 152 n.3 (1959)
                                                    6
(Black, J., dissenting).                               We reject the Government’s
                                                  contention that the defendants requested
  4
     Repeated attempts to convict fell out        the mistrial at issue here. In its March 5,
of favor by the late Seventeenth Century          2003 “notice,” the District Court did
and the reign of King James II, when              state that the defendants had moved for a
prosecutions which subjected an                   mistrial and that the motion was granted
individual to double jeopardy began to be         at a subsequent hearing. Yet defendants
barred. Washington, 434 U.S. at 508               did not request the mistrial declared on
n.23 (citing State v. Garrigues, 2 N.C.           February 24, which provides the basis for

                                              5
                                                            The realities of litigation preclude a
        A fundamentally different analysis          precise definition of “manifest necessity”:
applies where a mistrial is sought by the              [A] criminal trial is, even in the best
Government, or, as here, entered by the                of circumstances, a complicated
Court sua sponte. There is an inherent                 affair to manage. The proceedings
danger that the Government will “enter[]               are dependent in the first instance on
upon the trial of the case without sufficient          the most elem entary sort of
evidence to convict” and request a mistrial            considerations, e.g., the health of the
simply to marshal a better case. Downum                various witnesses . . . . And when
v. United States, 372 U.S. 734, 737 (1963).            one adds the scheduling problems
Similarly, the Double Jeopardy Clause                  arising from case overloads, and the
“prevents a prosecutor or judge from                   Sixth Amendment’s requirement that
subjecting a defendant to a second                     the single trial to which the double
prosecution by discontinuing the trial                 jeopardy provision restricts the
when it appears that the jury might not                Government be conducted speedily,
convict.” Green, 355 U.S. at 188. The                  it becomes readily apparent that a
power to declare a mistrial “ought to be               mechanical rule prohibiting retrial
used with the greatest caution, under                  whenever circumstances compel the
urgent circumstances, and for very plain               discharge of a jury without the
and obvious causes.” Perez, 22 U.S. (9
Wheat) at 580. Only where the mistrial is
required by “manifest necessity” will
                                                    testify); United States v. Sammaripa, 55
reprosecution be permitted under the
                                                    F.3d 433 (9th Cir. 1995) (reprosecution
Double Jeopardy Clause. Scott, 437 U.S.
                                                    barred where government moved for a
at 92.7
                                                    mistrial, which was subsequently granted
                                                    by the district court, on the grounds that
the present double jeopardy claims. The             the defendant had improperly exercised
mistrial they had earlier sought was flatly         peremptory challenges during jury
denied by the District Court on February            selection); United States v. Council, 973
20. The record is clear on this, and the            F.2d 251, 256 (4th Cir. 1992) (where the
District Court’s statement on March 5,              prosecuton failed to show his request for
2003 that the defendants sought the                 mistrial was based upon a manifest
February 24 mistrial is plainly wrong.              necessity, reprosecution was barred);
                                                    United States v. Ruggiero, 846 F.2d 117,
  7
     See also United States v. Stevens,             123 (2d Cir. 1988) (“when the
177 F.3d 579 (6th Cir. 1999) (reversing             Government moves for a mistrial, it must
the District Court’s denial of defendant’s          show a high degree of necessity, a
motion to dismiss on double jeopardy                ‘manifest necessity,’ to avoid a double
grounds after the Government moved for              jeopardy bar to a subsequent
a dismissal when its key witness failed to          prosecution”).

                                                6
    defendant’s consent would be too                         is appropriate.” Washington, 434 U.S. at
    high a price to pay . . . .                              508; Crawford v. Fenton, 646 F.2d 810,
United States v. Jorn, 400 U.S. 470, 479-                    817 (3d Cir. 1981) (“If, for example, a
80 (1971); see also Illinois v. Somerville,                  mistrial has been granted in order to allow
410 U.S. 458, 463 (“The interests of the                     the state to achieve a tactical advantage,
public in seeing that a criminal prosecution                 then the strictest scrutiny is appropriate.”).
proceed to verdict . . . need not be forsaken
by the formulation or application of rigid                       Critically, a mistrial must not be
rules that necessarily preclude the                          declared without prudent consideration of
v i n d i c at i o n o f t h a t i n t e r e s t. ” ).       reasonable alternatives. Federal Rule of
Nevertheless, “trial judges may declare a                    Criminal Procedure 26.3 requires that,
mistrial without barring reprosecution only                  “[b]efore ordering a mistrial, the court
in extraordinary circumstances.” United                      must give each defendant and the
States ex rel. Russo v. Superior Court of                    government an opportunity to comment on
N.J., 483 F.2d 7, 13 (3d Cir. 1973).                         the propriety of the order, to state whether
                                                             that party consents or objects, and to
    The question of whether “manifest                        suggest alternatives.”        The dialogue
necessity” existed in the case before us is                  fostered by Rule 26.3 ensures that only
a mixed question of law and fact over                        those mistrials that are truly necessary are
which we exercise plenary review. Id. at                     ultimately granted. Crawford, 646 F.2d at
15 (citing Townsend v. Sain, 372 U.S. 293,                   817-18; United States v. McKoy, 591 F.2d
309 n.6 (1963)); United States ex rel.                       218, 223 (3d Cir. 1979). The Government
Thomas v. State of N.J., 472 F.2d 735,                       bears the burden of demonstrating that,
737-38 (3d Cir. 1973). Reprosecution may                     “under the circumstances confronting the
be had when the mistrial is necessitated by                  trial judge, he had no alternative to the
the jury’s inability to agree upon a verdict.                declaration of a mistrial.” McKoy, 591
Perez, 22 U.S. (9 Wheat) at 580;                             F.2d at 222 (citing Jorn, 400 U.S. at 487).
Richardson v. United States, 468 U.S. 317,                   Ultimately, however, the District Court
325 (1984) (“the failure of the jury to                      must exercise prudence and care, giving
reach a verdict is not an event which                        due consideration to reasonably available
terminates jeopardy”). Further, if a juror                   alternatives to the drastic measure of a
is biased, Simmons v. United States, 142                     mistrial. Crawford, 646 F.2d at 818-19.
U.S. 148 (1891), or served on the indicting                  Where a District Court sua sponte declares
grand jury, a trial judge may declare a                      a mistrial in haste, without carefully
mistrial without precluding a second                         considering alternatives available to it, it
prosecution, Thompson v. United States,                      cannot be said to be acting under a
155 U.S. 271 (1894). Where, as here, the                     manifest necessity. Morton, 112 F.3d at
basis for the District Court’s declaration of                134-35; accord Glover v. McMackin, 950
a mistrial is the unavailability of a                        F.2d 1236 (6th Cir. 1991); Cherry v. Dir.
prosecution witness, “the strictest scrutiny                 State Bd. of Corr., 635 F.2d 414 (5th Cir.

                                                         7
1981) (en banc); Brady v. Samaha, 667                not outweigh the Court’s duty to protect
F.2d 224, 229 (1st Cir. 1981). Any                   the defendants’ constitutional right to be
subsequent reprosecution under those                 required to stand trial only once and are,
circumstances is barred by the Double                by themselves, insufficient to support the
Jeopardy Clause.                                     declaration of a mistrial. Jorn, 400 U.S. at
                                                     479-80.
                      IV.
    The record in this case demonstrates                 Second, the District Court expressed
that the District Court failed to consider           concern that the deliberating jurors might
both the constitutional implications                 have difficulty piecing together the
attendant to the declaration of a mistrial, as       evidence following a disjointed trial. Yet
well as the reasonable alternatives to a             at the time the judge declared the mistrial,
mistrial. Ordinarily, the Government bears           only three calendar days had passed since
a heavy burden of demonstrating that there           the Court had rejected the defendants’ own
is no alternative but to declare a mistrial.         request for a mistrial.            Further,
McKoy, 591 F.2d at 222. Here, however,               Schoenbaum had an appointment with his
the Government opposed the mistrial,                 doctor at the very moment that the Court
informing the Court that Schoenbaum was              considered declaring a mistrial. The
meeting with his doctor to obtain the                record provides no basis on which to
necessary release to travel to the Virgin            conclude that the three prior days had
Islands. Rather than demonstrate manifest            significantly eroded the jury’s ability to
necessity, the Government presented the              recall testimony, or that further erosion
Court with a reasonable alternative to a             would occur in the short time needed to
mistrial, i.e., that the Court wait “a few           determine Schoenbaum’s prognosis.
hours [to] know whether or not the doctor
will release [Schoenbaum] to get on the                 What makes this declaration of a
plane.”                                              mistrial particularly troubling is that it was
                                                     due to the absence of a prosecution
    The concerns identified by the District          witness. As the Supreme Court explained
Court do not justify rejection of this               above, the “strictest scrutiny is appropriate
alternative, nor do they amount to manifest          when the basis for the mistrial is the
necessity.     First, the District Court             unavailability of the critical prosecution
expressed concern about the scheduling               evidence.” Washington, 434 U.S. at 508.
difficulties Schoenbaum’s absence created.           This is not to say that the absence of a key
The judge explained that the trial had               witness can never constitute manifest
provided an “inconvenience to everyone,              necessity. See, e.g., Downum, 372 U.S. at
Court, counsel, the Government.” The                 737 (cautioning that, based on the facts
Court further observed that it was                   presented, the absence of a witness could
scheduled to begin another trial soon.               constitute manifest necessity for a
Scheduling considerations, however, do               mistrial). The District Court, however,

                                                 8
must take great care to ensure that there           prosecution witness simply broke his leg
are no available alternatives before                while away from the jurisdiction on a long
declaring a mistrial in such circumstances.         weekend. Wade is completely inapposite
E.g., United States ex rel. Gibson v.               to the comparatively trivial trial
Ziegele, 479 F.2d 773, 778 (3d Cir. 1973). 8        inconvenience that the District Court
That the Government itself presented the            faced.
District Court with a reasonable alternative
to a mistrial places the Government in a                Instead, the facts of this case are much
poor position to now argue that the District        closer to those in United States v. Tinney,
Court exercised such care.                          473 F.2d 1085 (3d Cir. 1973). Tinney was
                                                    not present when the final day of his trial
    The Government’s attempt to analogize           began, and the judge inquired as to his
this c a s e t o th e u n f o r e se e a b le       whereabouts. Tinney’s lawyer explained
circumstances that necessitated a mistrial          that he had phoned his client’s home and
in Wade misses the mark. 336 U.S. at 687.           been assured that the defendant had set out
Wade arose out of a court martial initially         for court some time before. The trial judge
convened in Krov, Germany during World              then stated that “‘if Tinney was not present
War II. A mistrial was declared after a key         in ‘ten minutes, I am going to have the
witness became ill at the same time that            marshals pick him up. I am going to
the Army unit was forced by the ongoing             revoke his bail and commit him.’” Id. at
conflict to relocate. Id. at 689.        The        1087. The defendant’s counsel objected,
District Court here was hardly presented            and asked for a short continuance to
with the prospect of advancing armies or            determine the whereabouts of his client.
the invasion of hostile territory. Instead, a       The motion was denied. Approximately
                                                    ten minutes after the jury entered the room,
                                                    Tinney appeared and explained that his
  8                                                 vehicle had broken down on the drive to
     In Ziegele, a key prosecution witness
                                                    the courthouse. The judge ordered Tinney
was too ill to testify after initially being
                                                    taken into custody and declared a mistrial.
present on the first day of a murder trial.
                                                    Id. This Court was troubled that “the
Id. at 775. The Court declared a recess
                                                    decision was made without regard to other
for the remainder of the day in order to
                                                    reasonable possibilities and without taking
ascertain the severity of the witness’s
                                                    all the circumstances into consideration.”
illness. The next day the Court learned
                                                    Id. at 1089. We concluded that the trial
that the witness would be unable to
                                                    court’s decision to declare a mistrial, after
testify for several weeks. It was only
                                                    waiting only ten minutes for the defendant
after gaining this information and
                                                    to arrive, was unjustified and did not
conducting “considerable discussion”
                                                    display the care necessary to ensure that
with the parties that the trial court
                                                    the situation warranted such drastic action.
declared a mistrial. Ziegele, 479 F.2d at
                                                    See also Morton, 112 F.3d at 134-35
775-78.

                                                9
(barring reprosecution where the trial
judge declared a m istrial almost
immediately after learning of the death of
his mother-in-law; although this Court
f o und the trial judge’s distr e ss
understandable, a decision as to the course
of the trial could have been made at a later
date when there had been time for careful
c o n si d e ration o f the appropr ia te
alternatives).

    We therefore conclude that the District
Judge did not exercise “‘sound discretion’
in declaring a mistrial.” Washington, 434
U.S. at 514. Choosing not to await the
final prognosis of Schoenbaum’s ability to
appear and testify, the District Judge
prematurely declared a mistrial without
considering the constitutional import of his
decision. Because the declaration of a
mistrial was not manifestly necessary, any
subsequent reprosecution of the defendants
is barred by the Double Jeopardy Clause.
The District Court’s order denying the
defendants’ motion to dismiss will be
reversed.




                                               10
