                                 ___________

                            Nos. 95-3760/3761/3762
                                  ___________


United States of America,            *
                                     *
           Appellee,                 * Appeals from the United States
                                     * District Court for the
      v.                             * Eastern District of Missouri.
                                     *
Kenneth Givens, Robert Turner,       *
and Guinn Kelly,                     *
                                     *
           Appellants,               *
                               ___________

                   Submitted: March 14, 1996

                       Filed: July 5, 1996
                               ___________

Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                               ___________


MORRIS SHEPPARD ARNOLD, Circuit Judge.


     Appellants contend that the district court improperly declared a
mistrial and subjected them to double jeopardy by retrying them.        The
district court believed that manifest necessity required a mistrial in the
defendants' first trial and therefore rejected appellants' claims of double
jeopardy.   We reverse the judgment of the district court as to two
defendants, affirm as to the other, and remand.


                                      I.
     Kenneth Givens, Robert Turner, and Guinn Kelly were members of the
Saint Louis Police Department who also worked as security guards at a
federal housing project.    They were accused of falsifying their time cards
to inflate the number of hours that it
appeared that they worked at that project.       At trial, Captain Harry Hagger,
the defendants' supervisor at the police department, was called as a
government witness.      Capt. Hagger testified about the policies of the
police department regarding their officers' employment in part-time jobs,
such as working as security guards.       He was one of the prosecution's first
witnesses   and    it   appears   that   the   defendants   were   interested   in
discrediting his testimony.


     During Capt. Hagger's cross-examination by Mr. Givens's attorney, C.
John Pleban, Mr. Pleban approached the bench and described for the court
a conversation that he had had with Capt. Hagger during which no one else
was present.      Mr. Pleban said that Capt. Hagger had told him previously
that Capt. Hagger suggested to Mr. Givens that Mr. Givens resolve the
problem of overstated hours on his time cards by putting in extra hours.
Under Mr. Pleban's cross-examination, however, Capt. Hagger denied making
any such suggestion to Mr. Givens.       Mr. Pleban then informed the court that
if, on further cross-examination, Capt. Hagger denied the substance of
their conversation, Mr. Pleban might have to testify to impeach Capt.
Hagger.   Counsel for Messrs. Turner and Kelly appeared to agree that they
too wanted to elicit this testimony for purposes of impeachment.


     The court outlined alternative courses of action and heard and
considered the arguments of counsel before deciding to declare a mistrial.
The court disqualified Mr. Pleban as Mr. Givens's attorney, and found as
a fact that Mr. Pleban's other attorney was unprepared to continue with the
trial.    While Mr. Givens did not object to the disqualification or the
declaration of mistrial, Messrs. Turner and Kelly repeatedly objected to
a mistrial and expressed their wish to proceed.


     The defendants later moved to dismiss their indictment under the
Double Jeopardy Clause of the Fifth Amendment.         In rejecting the motion,
the court relied on the principles outlined in United




                                         -2-
States v. Allen, 984 F.2d 940 (8th Cir. 1993).                           After reviewing the
alternatives, the court held that mistrial was the one least harmful.                       The
district court believed that "by declaring the mistrial and giving the
defendants    an   opportunity      to    call   Mr.       Pleban    to    provide     possible
impeachment testimony in the next trial, the Court has acted for the
benefit of the defendants."          The court declined to proceed with a trial
against Messrs. Turner and Kelly without Mr. Givens because there was a
conspiracy count against all three defendants and because there would have
been "overwhelming" prejudice (presumably to the government) if a defendant
disappeared and his lead defense counsel took the stand to contradict a
government witness.        The court therefore concluded that there was manifest
necessity for a mistrial and denied the motion to dismiss the indictment.


                                           II.
        We should note that the government describes this case as one raising
a conflict-of-interest issue, but this characterization is not quite
apposite.      This   is    not,   for   example,      a    case    in    which   an   attorney
represented one defendant and might have to cross-examine a former client
who had turned state's evidence.         See Wheat v. United States, 486 U.S. 153
(1988).     Nor is it a case in which there was evidence that the attorney
himself was implicated in his own client's wrongdoing.                     See United States
v. Marren, 919 F.2d 61 (7th Cir. 1990).                Instead of a conflict between
different clients' interests or between a client's interests and his
attorney's self- interest, the problem here is a conflict of courtroom
roles, of blurred distinctions between the roles of advocate and witness.


        Mr. Pleban created such a problem when he interviewed a witness
without another person present.          Local rules of the United States District
Court    for the Eastern District of Missouri (E.D. Mo. L.R. 2(G)(2),
superseded by L.R. 12.02), have adopted the Missouri Rules of Professional
Conduct, which provide that a lawyer shall not act as an advocate at a
trial in which the lawyer is




                                           -3-
likely to be a necessary witness except where the testimony relates to an
uncontested issue, the testimony relates to the nature and value of legal
services rendered in the case, or disqualification of the lawyer would work
substantial hardship on the client.           Missouri Supreme Court Rule 4, Rule
3.7.    While the district court conceivably could have made a finding of
hardship that would have enabled Mr. Pleban to testify and represent Mr.
Givens, we believe that the court chose the better path in disqualifying
Mr.    Pleban.   (We    note,   too,   that    no   one   objected   to   Mr.   Pleban's
disqualification.)     The question then is whether Mr. Pleban's contemplated
change from attorney to witness made the district court's declaration of
mistrial a manifest necessity.



                                        III.
       The Double Jeopardy Clause of the Fifth Amendment provides that no
person shall "be subject for the same offense to be twice put in jeopardy
of life or limb."      Retrying a defendant after a mistrial implicates double
jeopardy because jeopardy attaches when the first jury is sworn.                     The
double jeopardy doctrine, however, does not prevent all retrials after
jeopardy attaches.     "The double-jeopardy provision of the Fifth Amendment
... does not mean that every time a defendant is put to trial before a
competent tribunal he is entitled to go free if the trial fails to end in
a final judgment.      Such a rule would create an insuperable obstacle to the
administration of justice in many cases in which there is no semblance of
the type of oppressive practices at which the double-jeopardy prohibition
is aimed."   Wade v. Hunter, 336 U.S. 684, 688-89 (1949).             Double jeopardy
will thus not bar retrial when the defendant's interest in proceeding to
verdict is outweighed by the competing and equally legitimate demand for
public justice, as, for instance, when an error occurred during the
proceedings that would require reversal on appeal, when a jury cannot reach
a verdict, or when it becomes apparent at trial that a member of the jury
is biased against either the defendant or the government.                 See




                                         -4-
Illinois v. Somerville, 410 U.S. 458, 463, 468-71 (1973); Wade v. Hunter,
336 U.S. at 689.


       The Supreme Court has declined to lay down a rigid formula for
evaluating these matters, but has instead adopted one whose value lies in
its "capacity for informed application under widely differing circumstances
without injury to defendants or the public interest."                    Id. at 691.       Retrial
has therefore long been permitted whenever "taking all the circumstances
into   consideration,        there    is   a   manifest         necessity   for    the    act   [of
mistrial], or the ends of public justice would otherwise be defeated,"
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824) (emphasis
added), but the level of necessity must be of a "high degree" before a
mistrial may be declared.           Arizona v. Washington, 434 U.S. 497, 506 (1978).
"Under     [this]     rule   a   trial     can       be   discontinued         when     particular
circumstances manifest a necessity for so doing, and when failure to
discontinue would defeat the ends of justice."                     Wade v. Hunter, 336 U.S.
at 690.


       Mr.   Givens    did    not    specifically         object    to   the    declaration      of
mistrial, and the trial court's finding that his other attorney was
unprepared to continue in Mr. Pleban's absence was not clearly erroneous.
Objections at trial, however, were handled under an "opt-out" rule under
which the objections of one defendant were considered to be the objections
of all defendants unless a defendant opted out of that objection.                          Messrs.
Turner and Kelly both strongly objected to the declaration of mistrial,
thereby preserving their appeal on the double jeopardy issue, and their
objections therefore must be attributed to Mr. Givens.                      But the court had
no option but to declare a mistrial as to Mr. Givens because his other
attorney was unprepared to continue, and the court had decided, with good
reason, that Mr. Pleban could not serve simultaneously as both attorney and
witness.      The   mistrial        declaration      as    to    Mr.   Givens     was    therefore
manifestly necessary.




                                               -5-
        Messrs.    Turner     and    Kelly,    however,       maintain   that   the   court
impermissibly declared a mistrial as to them for purposes of judicial
economy.       Indeed, the record indicates that the court and the government
wanted to try these defendants together on all counts for efficiency
reasons, and the trial court in fact referred to the existence of the
conspiracy count as one reason for declining to sever the trial.                  Judicial
economy,       however, is not a proper basis for a finding of manifest
necessity, see, e.g., Allen, 984 F.2d at 942; United States v. Dixon, 913
F.2d 1305, 1315 (8th Cir. 1990), and considerations of judicial economy
appear to have played a substantial role in the district court's decision
to declare a mistrial rather than sever.


        Messrs. Turner and Kelly also argue that the district court failed
correctly to weigh the prejudice to them that would result from a
declaration of mistrial, and, indeed, many relevant cases emphasize the
Fifth    Amendment's      function     of   protecting    the    defendant.     The   Fifth
Amendment encompasses the "valued right" to have one's case decided by a
particular jury impaneled for that purpose.                      See, e.g., Arizona v.
Washington, 434 U.S. at 503; United States v. Ford, 17 F.3d 1100, 1102 (8th
Cir. 1994); Dixon, 913 F.2d at 1309-10.              The right to be free from double
jeopardy is of great significance for several reasons: "Even if the first
trial is not completed, a second prosecution may be grossly unfair.                      It
increases the financial and emotional burden on the accused, prolongs the
period    in    which    he   is    stigmatized     by   an   unresolved   accusation    of
wrongdoing, and may even enhance the risk that an innocent defendant may
be convicted."          Arizona v. Washington, 434 U.S. at 503-04 (footnotes
omitted).      These are serious considerations in deciding whether to declare
a mistrial.


        Other relevant cases, by contrast, emphasize the harm that can befall
the government or the factfinding process by failing to declare a mistrial.
Indeed, in our case the court and the government were very concerned about
the potential effect on the




                                              -6-
jury of the changing role of Mr. Pleban and the disappearance of Mr. Givens
as a defendant, and the government has cited a case holding that declaring
a mistrial under somewhat analogous circumstances was not an abuse of
discretion.     See United States v. Arrington, 867 F.2d 122, 125-26 (2d
Cir.), cert. denied, 493 U.S. 817 (1989).          In Arrington, the government
asserted during trial that one of the defense attorneys had coerced the
government's    confidential   informant    into    recanting   his   anticipated
testimony.     Counsel for the other defendants stated their intention of
calling that attorney to testify, presumably regarding the inconstancy of
the informant.     The district court declared a mistrial in light of the
attorney's anticipated transition from advocate to witness.       On appeal, the
Second Circuit noted the potential effect of the attorney's dual role as
both witness and advocate, and worried that such a performance could so
blur the line between argument and evidence as to undermine the jury's
ability to find the facts properly.    The court concluded that the mistrial
was an appropriate exercise of discretion because of the unlikelihood that
a jury could differentiate between counsel's role as witness and his role
as advocate.     "Once a jury sees an attorney take an oath on the witness
stand, it may accord testimonial weight to that which he has argued, or it
may place undue weight on the testimony of an officer of the court."          867
F.2d at 126 (citations omitted).    Arrington thus emphasizes the potential
prejudice to the government and the factfinding process.


      The manifest necessity standard does not require us to look at the
mistrial dilemma from a single point of view.         It is a flexible standard
which seeks fairness to the defendant, the government, and the public
interest alike.   See, e.g., Wade v. Hunter, 336 U.S. at 691; Perez, 22 U.S.
at 580.   The dispute at hand therefore requires us to consider both the
defendant's right to be free from the burdens of a mistrial as well as the
possibility that the jury's factfinding ability might be compromised by an
unusual and confusing twist at trial.       While Arrington makes a good case
for




                                      -7-
the potentially confusing effect that an attorney's changing role might
have on a jury, we believe that we must also give at least as much weight
to the actual prejudice to the defendants whom the government and the
district court wanted to subject to another trial.       In addition, the
district court and the government offer little insight (other than a
limited amount of conjecture) into the nature and extent of any prejudice
to either side of allowing Mr. Pleban to testify.     While we accord the
highest degree of respect to a trial judge's finding of juror bias as a
basis for a mistrial, see Arizona v. Washington, 434 U.S. at 513-14, this
is not a case in which any member of the jury was suspected of harboring
an actual bias.   The trial court's speculation about the possible effects
of a change in role by a trial attorney is not entitled to any particular
deference, nor do we think, on balance, that those effects would have been
substantial.   See Allen, 984 F.2d at 942 ("Practical considerations and
speculation ... cannot serve as a basis for manifest necessity.").      It
seems to us particularly unlikely that the prejudice would have been large
in this instance because Mr. Pleban's testimony would have been relevant
only to a collateral issue, namely, the credibility of one government
witness.


     We offer some comments on Allen, supra, regarding the standards that
it adopted and which the district court applied in this case.    The Allen
court listed four considerations from United States v. Bates, 917 F.2d 388,
395-96 (9th Cir. 1993), but ultimately relied on only one, namely, whether
the mistrial declaration would benefit the defendant.    Allen appeared to
find a lack of manifest necessity in "the fact that it was uncertain
whether Allen would benefit from the mistrial."    984 F.2d at 943.   This
intimates that the Fifth Amendment requires that all mistrial declarations
must benefit the defendant.     But Bates simply explains that mistrial
declarations made for the defendant's benefit are treated favorably because
double jeopardy does not forbid retrial where a mistrial has been granted
for the defendant's benefit.   Id.




                                     -8-
at 943 (quoting Gori v. United States, 367 U.S. 364, 369 (1961)).    A lack
of benefit to the defendant, however, does not automatically mean that
retrial is barred, because, just to name a few examples, retrial is
permitted where the jury is unable to reach a verdict or a juror is biased
toward the government, despite the lack of obvious benefit to the defendant
from retrial in such circumstances.     See, e.g., Wade v. Hunter, 336 U.S.
at 689.


     In sum, we believe that the nature of the prejudice, if any, to the
jury's ability to give proper weight to an advocate or a witness pales in
comparison to the prejudice to the defendants of facing a retrial.       We
believe that a cautionary instruction to the jury would have almost
certainly undone any potential prejudice to the government, especially
since Mr. Pleban had not been representing Messrs. Turner and Kelly.     It
is even possible that the jury, far from drawing inferences against the
government from Mr. Pleban's testimony, might have discounted it because
of his former role as an advocate for one of the defendants.   The district
court erred in weighing the alternatives less drastic than mistrial,
particularly in rejecting the more favorable alternative of severance, and
in relying on forbidden considerations of judicial economy in declaring a
mistrial.   This case could have been severed and tried to a result without
offending the interests of justice.    "While it is regrettable when serious
charges of criminal conduct go untried, such a result is necessary in this
case to protect the right of all citizens not to be twice put in jeopardy
for the same offense, a right `that was dearly won and one that should
continue to be highly valued.'"   Dixon, 913 F.2d at 1315 (quoting Green v.
United States, 355 U.S. 184, 198 (1957)).


                                      IV.
     For the foregoing reasons, we reverse the judgment of the district
court as to Messrs. Turner and Kelly, affirm as to Mr. Givens, and remand
for further proceedings consistent with this opinion.




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A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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