                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4579


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man,

                Defendant - Appellant.



                               No. 15-4580


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a
Black Wolf, a/k/a Babi,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge.     (3:14-cr-00016-GEC-JCH-1; 3:14-cr-00016-GEC-
JCH-4)


Submitted:   January 5, 2016                 Decided:   January 11, 2016


Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender for the Western
District of Virginia, Geremy C. Kamens, Acting Federal Public
Defender for the Eastern District of Virginia, Frederick T.
Heblich,    Jr.,     Assistant    Federal    Public    Defender,
Charlottesville, Virginia, Paul G. Gill, Assistant Federal
Public Defender, Richmond, Virginia, for Appellants. Anthony P.
Giorno, United States Attorney, Christopher R. Kavanaugh, Ronald
M. Huber, Jean B. Hudson, Assistant United States Attorneys,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Appellants Daniel Lamont Mathis and Kweli Uhuru appeal from

the district court’s order denying their motion to dismiss the

superseding indictment pending against them on double jeopardy

grounds.    Finding no reversible error, we affirm.



                                    I.

       Appellants and their four codefendants are charged in a 36-

count     superseding    indictment.       The        superseding   indictment

alleges, among other matters, that Appellants are members of a

street gang and that members of this gang conspired with one

another to conduct and participate in the affairs of the gang

through    a   pattern    of   racketeering      activity      consisting   of

assaults, robberies, burglaries, kidnapping, carjacking, murder,

drug    trafficking,     and   obstruction       of     justice.     All    six

Defendants proceeded to a jury trial.            Trial commenced on May 4,

2015, and a 16-person jury was sworn by the district court.                  No

party had sought an anonymous jury, and the 16 sworn jurors were

selected from a non-anonymous jury panel of 134 individuals.

On May 6, 2015, the district court gave its opening remarks to

the jury, and the parties gave their opening statements.

       That evening, counsel for the Government notified the court

and defense counsel that it had a preliminary matter it wished

to take up with the district court prior to the presentation of

                                       3
evidence.        During an in-chambers conference the next day, an

agent with the Federal Bureau of Investigation (FBI) reported to

the district court and counsel that he had learned that Uhuru

had removed from the courtroom and taken to his jail cell a jury

list     containing       personally      identifying        information    for    the

entire 134-person jury panel; this jury list remained in Uhuru’s

possession overnight and for a total of at least 15 hours.                         The

agent expressed concerns regarding the safety of the individuals

on the jury list -- given that the jury panel was not anonymous

-- and stated that his concerns were shared by higher ranking

officials within the FBI, as well as members of the Virginia

State     Police       and    the    Louisa,     Virginia,      County     Sheriff’s

Department.          The agent emphasized that these concerns were based

at     least    in     part   on    the   believed     affiliation    between      the

Defendants and the “United Blood Nation,” a street gang with a

history of taking violent action with respect to trials.

       The     agent    advised     further     that   the    FBI   and    other   law

enforcement agencies believed they had a duty to notify the 134

jury panel members -- whom the agencies believed to be at some

level of risk as a consequence of Uhuru’s actions -- of the

release of their personal information.                 To avoid the possibility

of a mistrial, however, the agent proposed that the members of

the jury panel be advised of the removal of the jury list at the

conclusion of the trial.

                                            4
     The district court also heard from counsel.                         Based on the

concerns     raised     by     the     agent,     several      defense      attorneys

questioned the propriety of waiting until the trial’s conclusion

to notify the individuals on the jury panel and stated their

beliefs that a mistrial was necessary.                 Other defense attorneys

noted that the personal information of jury panel members is

routinely shared with criminal defendants and did not move for

or opposed a mistrial.            Counsel for the Government stated the

Government’s view that there were no grounds for a mistrial.

The district court then elicited input from the United States

Marshals in charge of the security detail for the trial.                           They

advised     counsel     and     the     court     of   Uhuru’s      believed       gang

connections and recruitment activities, but stated there was no

evidence he had shared the jury list with anyone else.

     Following    a   recess,         counsel    for   the    Government     reported

that the FBI remained of the opinion that the individuals on the

jury list should be contacted regarding the dissemination of

their personal information but that the Government opposed a

mistrial.       After        hearing     again    from       the   FBI     agent    and

considering his concerns and the observations of the Marshals

and hearing from counsel, the district court determined that it

would send letters to members of the jury panel advising them

that their personal information had been “viewed to a somewhat

greater extent by criminal defendants than is usually the case

                                          5
in the voir dire process.”            J.A. 222.         The court elected to send

the letters the following morning rather than wait until the

conclusion     of    the    trial.         Consistent    with    this    ruling,     the

district court sent letters to each member of the jury panel.

      After the district court announced its decision to send the

letters, the four Defendants other than Mathis and Uhuru moved

for   mistrials.       Trial      recommenced      on    May    12,   2015,    and    the

district     court     granted       the     mistrial     motions       of    the    four

Defendants     other       than   Mathis     and   Uhuru.        Mathis      and    Uhuru

concurred with the district court’s proposal to conduct a voir

dire of the 16 sworn jurors to determine whether they thought

they could proceed as jurors in light of the information relayed

in the court’s letters to them. 1




      1   The letters advised the 16 jurors that:

      It is routine in all trials, both civil and criminal,
      for counsel to share personal information about
      prospective jurors with their clients, including
      criminal defendants.    This is designed to make sure
      that attorneys and their clients are able to make
      intelligent decisions in matters of jury selection.
      In this case, however, information about all jury
      panel members was disseminated among the defendants to
      a greater degree than is usually the case in federal
      jury selection, in that a jury list was retained by
      one defendant overnight.

     The court has made appropriate inquires and finds no
     reason for special concern. Nonetheless, we wanted to
     advise you of this circumstance.    If you have any
     additional questions, you may use the contact number
(Continued)
                                             6
     After the district court, counsel for Mathis and Uhuru, and

counsel for the Government met with and heard from all 16 jurors

individually, the district court excused 3 jurors but advised

that it was prepared to proceed to trial with the remaining 13

jurors.     The court heard argument from counsel for Mathis and

Uhuru   regarding    their    objections       to   5   of    the   13   jurors   but

stated it was convinced all 5 were capable of continuing to

serve on the jury.          The court also stated its willingness to

proceed to trial with a jury of less than 12 persons if the

parties   could     agree    to   do   so.      Mathis        and   Uhuru   elected,

however, to move for mistrials, and the district court granted

their motions and declared a mistrial in the case.

     Trial was rescheduled for February 1, 2016.                         Mathis and

Uhuru moved to dismiss the superseding indictment on the grounds

that a retrial was barred by the Double Jeopardy Clause of the

Fifth Amendment, claiming that they were goaded into moving for

mistrials    by   the   district       court    and     the    Government.        The

district court denied the motion, concluding that Mathis and

Uhuru failed to prove its actions were intended to goad them

into seeking mistrials and that there was no evidence that the



     previously provided.     The court will discuss this
     matter with you upon your return to court on Tuesday.

     J.A. 229.



                                         7
Government had any desire for a mistrial or intended to cause

one.

       Mathis and Uhuru noted timely interlocutory appeals from

the    district       court’s       order, 2       and     this     court      granted        the

Government’s         motion     for       expedited        briefing.               On    appeal,

Appellants        challenge    the     district      court’s        rejection           of   their

double jeopardy claim.



                                             II.

       The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb.”                           U.S. Const. amend. V.

This clause protects a criminal defendant from facing “repeated

prosecutions for the same offense.”                      Oregon v. Kennedy, 456 U.S.

667,       671   (1982).      “In     the   case     of     a     jury    trial,        jeopardy

attaches when a jury is empaneled and sworn.”                            Baum v. Rushton,

572 F.3d 198, 206 (4th Cir. 2009).                   “As such, the constitutional

protection        against     double      jeopardy        embraces       the       defendant’s

valued       right   to     have    his     trial        completed       by    a    particular




       2
       This court has jurisdiction over the appeals under the
collateral   order  exception  to   the  final   judgment  rule.
See Midland Asphalt Corp. v. United States, 489 U.S. 794, 798-99
(1989); United States v. Jefferson, 546 F.3d 300, 308-10
(4th Cir. 2008).



                                               8
tribunal.”             Id.     (internal    quotation        marks     and       alteration

omitted).

      Nevertheless, the right to have a particular jury decide

guilt or innocence once jeopardy has attached is not absolute.

“There are circumstances under which retrial is permitted after

a   criminal         proceeding    has     ended   in   mistrial.”               Sanders    v.

Easley, 230 F.3d 679, 685 (4th Cir. 2000).                       Where, as here, a

defendant obtains a mistrial, “the conditions for invocation of

the double jeopardy bar are strict.”                     United States v. Wentz,

800 F.2d 1325, 1327 (4th Cir. 1986).                     A defendant can avoid a

second trial only if the “the governmental conduct in question

is intended to ‘goad’ the defendant into moving for a mistrial.”

Kennedy, 456 U.S. at 676.                  “[C]onduct that might be viewed as

harassment       or     overreaching,      even    if   sufficient         to     justify    a

mistrial        on     defendant’s    motion, . . . does             not     bar     retrial

absent intent . . . to subvert the protections afforded by the

Double Jeopardy Clause.”              Id. at 675-76.           Appellants bear the

burden     of        proving    specific     intent     to    provoke        a     mistrial.

United States v. Smith, 441 F.3d 254, 265 (4th Cir. 2006).

      A district court finding as to intent to cause a mistrial

is a factual finding this court must accept unless it is clearly

erroneous.           United States v. Johnson, 55 F.3d 976, 978 (4th Cir.

1995).     Under the clear error standard of review, this court

will reverse only if “left with the definite and firm conviction

                                             9
that a mistake has been committed.”                          United States v. Chandia,

675   F.3d       329,    337   (4th   Cir.     2012)         (internal    quotation           marks

omitted).

          We conclude after review of the record and the parties’

briefs that Appellants have not met their burden to show clear

error       by     the    district      court.               Contrary        to     Appellants’

assertions, the record makes clear that, in sending the letters,

the district court was motivated by a desire to be open and

honest      with    the    jury   panel      members          about    potential        security

concerns and concerns potentially bearing on their ability to

serve as jurors, not by a desire to cause a mistrial.                                          The

record also makes clear that the district court orally confirmed

on multiple occasions that it was ready and willing to proceed

to    a    trial    for    Appellants,       and        we    reject    as    without      merit

Appellants’         suggestions        that        we        should    deem        these      oral

confirmations of only nominal relevance and conclude that the

statements reflected the court’s intent to goad.                              We also reject

as without merit Appellants’ challenge to the district court’s

determination           that   the    Double       Jeopardy       Clause          did   not    bar

retrial even if the decision between requesting a mistrial and

potentially accepting a jury of less than 12 persons qualified

as a Hobson’s choice.                Accord United States v. Green, 636 F.2d

925, 929 (4th Cir. 1980) (noting that when a prosecutor or the

district court “acts erroneously but without such a malevolent

                                              10
purpose [i.e., that of acting to provoke a mistrial], retrial is

not precluded even though the error was such as to present the

defendant with a Hobson’s choice between giving up his first

jury and continuing a trial tainted by prejudicial, judicial[,]

or prosecutorial error” (internal quotation marks omitted)).

      Appellants also argue in the alternative that Government

counsel    and    the   FBI     agent       provoked    their       mistrial      motions.

We conclude,      however,      that    the       record   supports        the    district

court’s determination that the agent and Government counsel did

not act to provoke a mistrial.                    The agent notified the parties

and district court about law enforcement’s concerns regarding

the individuals on the jury list in light of Uhuru’s actions and

believed gang connections because law enforcement had a duty to

notify the jury panel members, whom it believed to be at some

level of risk as a consequence of Uhuru’s actions.                           The agent,

however,   proposed      that    the    panel       members    be    notified      of   the

disclosure of their personal information after the conclusion of

the   trial      to   ensure    that        the    trial   proceedings           were   not

disrupted.

      The record also makes plain that Government counsel had

neither the desire nor intent to cause a mistrial.                           Government

counsel    voiced     opposition       to    the    granting    of     a    mistrial    on

multiple      occasions        and      even        affirmed     the       Government’s

willingness to sever Mathis and Uhuru from their codefendants

                                             11
and proceed to trial against them alone.                     Further, at the point

the agent addressed the district court and counsel at the in

chambers    conference,        Government         counsel    had   made    an    opening

statement for the Government and had subpoenaed its witnesses to

testify;    given      these     circumstances,        there   was    no   reason       for

counsel    to    desire    a   mistrial.          Appellants’      arguments       to   the

contrary are rejected, and we further reject as meritless their

remaining       extraneous       arguments       for   overturning     the      district

court’s order.



                                           III.

     Accordingly,         we      affirm     the       district      court’s       order.

We dispense      with     oral    argument       because     the   facts     and    legal

contentions      are    adequately     presented        in   the   materials       before

this court and argument would not aid the decisional process.

The clerk’s office is directed to issue the mandate forthwith.



                                                                                AFFIRMED




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