                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                  No. 01-4173
WILLIAM J. STREETT; SHARON L.
STREETT; JAMES G. SPRINKEL,
             Defendants-Appellants.
                                       
            Appeal from the United States District Court
       for the Western District of Virginia, at Harrisonburg.
                  James P. Jones, District Judge.
                            (CR-00-27)

                      Argued: September 27, 2001

                      Decided: October 18, 2001

       Before WILKINSON, Chief Judge, and LUTTIG and
                  MICHAEL, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Edward Scott Austin, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia; Paul Lawrence Knight, Washington,
D.C., for Appellants. Rick A. Mountcastle, Assistant United States
Attorney, Abingdon, Virginia, for Appellee. ON BRIEF: Guy M.
Harbert, III, GENTRY, LOCKE, RAKES & MOORE, Roanoke, Vir-
ginia, for Appellant Sprinkel; John J. McDermott, HALL, ESTILL,
2                      UNITED STATES v. STREETT
HARDWICK, GABLE, GOLDEN & NELSON, P.C., Washington,
D.C., for Appellant William Streett; John S. Hart, Jr., JOHN S.
HART, JR., P.C., Harrisonburg, Virginia, for Appellant Sharon
Streett. Ruth E. Plagenhoef, United States Attorney, Abingdon, Vir-
ginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Defendants William J. Streett, Sharon L. Streett, and James G.
Sprinkel appeal the district court’s order denying their joint motion to
dismiss the tax charges against them. They contend that the Double
Jeopardy Clause bars a retrial after a hung jury under the circum-
stances of this case. Because the defendants acquiesced in the mistrial
declaration, and because the court did not abuse its discretion in find-
ing that a mistrial was required by manifest necessity, we affirm the
order of the district court.

                                   I.

   On March 8, 2000, Defendants Dr. William J. Streett, his wife
Sharon L. Streett, and their accountant, James G. Sprinkel, were
charged with conspiracy to obstruct the Internal Revenue Service
("IRS") in the ascertainment and collection of federal income taxes,
in violation of 18 U.S.C. § 371. The Streetts were also charged with
three counts of making a false tax return, in violation of 26 U.S.C.
§ 7206(1). Mrs. Streett pleaded guilty to this charge before trial.

   The defendants’ jury trial began on November 6, 2000 and lasted
two and one-half days. The case was submitted to the jury at noon on
November 9, 2000. After approximately three hours of deliberation,
the jury told the court that it could not reach a unanimous verdict on
                       UNITED STATES v. STREETT                       3
any of the charges. After the court returned the jurors to the jury room
to consider whether "there are questions or other items of evidence
that the jury has not seen that you think might be of assistance," the
court asked the government whether it wanted the court to declare a
mistrial. The government responded that it would first like to hear
"whether the jurors have any additional questions or evidence they
want to look at and see what happens then." The court then asked
defense counsel whether he had anything to add. Defense counsel
replied, "Not at this time, Your Honor."

   After the jury returned and reported that no additional assistance
from the court would help it to reach a unanimous decision, the court
asked the government what it wanted to do. The government
responded, "I would say we need a mistrial, Your Honor." The court
next asked defense counsel whether he wished to add anything.
Defense counsel replied, "No, sir." The court then declared a mistrial,
advising the jury that it was being discharged because of its inability
to reach a unanimous decision. After returning the jurors to the jury
room, the court asked if there was any further matter that needed to
be taken up. In response, defense counsel requested postponement of
Mrs. Streett’s meeting with the probation office.

   On December 13, 2000, a grand jury returned a second indictment
against Sprinkel, charging him with two counts of making a materi-
ally false statement or writing to the IRS, in violation of 18 U.S.C.
§ 1001. The false statements charged in the second indictment
involved the same conduct charged as overt acts in the conspiracy
count of the original indictment. On December 15, the government
successfully moved to consolidate both indictments.

   On February 6, 2001, the defendants filed a joint motion to dismiss
the indictments for violations of the Double Jeopardy Clause. The dis-
trict court denied the motion on February 26, 2001, finding that the
defendants had acquiesced in the declaration of a mistrial. The court
also determined that there was a manifest necessity for a mistrial
because the jury was reasonably perceived to be hopelessly dead-
locked "after a relatively short trial on issues of comparative simplic-
ity." Defendants appeal.
4                      UNITED STATES v. STREETT
                                   II.

                                   A.

   We review de novo the legal questions raised by double jeopardy
claims. United States v. Imngren, 98 F.3d 811, 813 (4th Cir. 1996).
In addition, we must accept the district court’s factual findings unless
they are clearly erroneous. United States v. Johnson, 55 F.3d 976, 978
(4th Cir. 1995). Finally, the trial court has "broad discretion" in deter-
mining whether manifest necessity requires a mistrial declaration. Illi-
nois v. Somerville, 410 U.S. 458, 462 (1973). Thus, we review that
determination for abuse of discretion. United States v. Sloan, 36 F.3d
386, 393 (4th Cir. 1994). However, strict scrutiny is appropriate
"when there is reason to believe that the prosecutor is using the supe-
rior resources of the State to . . . achieve a tactical advantage over the
accused." Arizona v. Washington, 434 U.S. 497, 508 (1978).

                                   B.

   The Double Jeopardy Clause states 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. The Clause allows for a retrial following a mistrial
provided that, "taking all the circumstances into consideration, there
is a manifest necessity" for declaring a mistrial. United States v.
Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). It has long been estab-
lished that the failure of a jury to agree on a verdict is an instance of
"manifest necessity." Id. at 579-80; Richardson v. United States, 468
U.S. 317, 323-24 (1984).

   However, the Double Jeopardy Clause "bars retrials where bad-
faith conduct by judge or prosecutor . . . threatens the harassment of
an accused by . . . declaration of a mistrial so as to afford the prosecu-
tion a more favorable opportunity to convict the defendant." Washing-
ton, 434 U.S. at 508 (internal quotation omitted). Nevertheless, if the
defendant has an opportunity to object to the trial court’s declaration
of a mistrial but fails to do so, the defendant impliedly consents to the
mistrial and cannot raise a double jeopardy defense to further prose-
cution before a second jury. See United States v. Ndame, 87 F.3d 114,
115 (4th Cir. 1996); United States v. Ham, 58 F.3d 78, 83-84 (4th Cir.
1995); United States v. Ellis, 646 F.2d 132, 135 (4th Cir. 1981).
                       UNITED STATES v. STREETT                       5
                                  III.

                                  A.

   The defendants argue that the Double Jeopardy Clause bars repro-
secution of this case because the government requested a mistrial for
the purpose of gaining a tactical advantage in a future retrial, thereby
triggering strict scrutiny under Washington. 434 U.S. at 508. The
defendants maintain that the tactical advantage was a second indict-
ment against Sprinkel. The defendants point out that during trial, it
was never denied that Sprinkel made the alleged false statements;
rather, his defense was that the statements were not in furtherance of
any conspiracy. According to the defendants, if Sprinkel continued
with this same defense at retrial to avoid conviction on the one con-
spiracy count, the result might well be two convictions under the new
indictment for making false statements. Moreover, the defendants
contend that by effectively preventing Sprinkel from presenting a via-
ble defense to the conspiracy charge, the government will more easily
be able to convict the Streetts of this same charge because a conspir-
acy requires at least two people. The defendants submit that the short
time between the mistrial declaration and the second indictment is cir-
cumstantial evidence of the government’s illicit intent.

   In addition, the defendants argue that there was no manifest neces-
sity for a mistrial because this was a complex case in which the jury
had deliberated for only a short time and was not given an Allen
charge. See Allen v. United States, 164 U.S. 492 (1896). The defen-
dants further maintain that they did not consent to a mistrial.

                                  B.

   There are two significant problems with the defendants’ position.
Procedurally, there is no doubt that the defendants were given an
opportunity to object to the trial court’s declaration of a mistrial but
failed to do so. In fact, the court twice gave defense counsel the
opportunity to object when it was considering declaring a mistrial.
Defense counsel twice indicated that it had nothing to say. In addi-
tion, after the court advised the jury that it was being discharged
because of its inability to reach a unanimous decision, the court gave
defense counsel yet another opportunity to object to the mistrial, ask-
6                      UNITED STATES v. STREETT
ing if there was any further matter that needed to be taken up. Again,
defense counsel did not object to the mistrial declaration. Indeed,
none of the defendants made a double jeopardy challenge until
approximately three months after the end of the first trial.

   At a minimum, the defendants failed to object to the mistrial decla-
ration. At a maximum, they affirmatively acquiesced. Either way,
they cannot now raise a double jeopardy defense to further prosecu-
tion before a second jury. See Ndame, 87 F.3d at 115; Ham, 58 F.3d
at 83-84; Ellis, 646 F.2d at 135.

   Even if the defendants had not acquiesced in the mistrial declara-
tion, their claim fails in substance. The district court was not too
quick on the trigger here. The court did not automatically declare a
mistrial. Rather, when the jury informed the court that it was unable
to reach a unanimous decision on any of the charges, the court asked
the jury to return to the jury room to consider whether any additional
assistance would aid it in its decision, and then consulted with both
the government and defense counsel. It was only after the jury indi-
cated that no additional help would allow it to reach a unanimous
decision that the court declared a mistrial. The district court is in the
best position to determine whether further deliberation would have
been fruitful. It is very difficult for us to replicate its vantage point.
Our role is limited to deciding whether the court abused its discretion.
See Sloan, 36 F.3d at 393. It did not.

   As for the defendants’ contention that strict scrutiny is the correct
standard of review because the government had an illicit purpose in
seeking the mistrial declaration, there have been no findings or sug-
gestions by the district court that the prosecutor acted in bad faith.
And there is nothing in the record that would cause us to conclude
that the court was clearly erroneous in assessing the government’s
intent. See Johnson, 55 F.3d at 978. It was the prosecutor who stated
that he wanted to hear whether the jurors had any additional questions
or wanted to examine any other evidence before the court declared a
mistrial. It was only after the jurors again indicated that they could
not reach a unanimous decision that the government requested a mis-
trial.

  Moreover, the defendants’ "tactical advantage" theory also rings
hollow in view of their failure to object when the government ulti-
                      UNITED STATES v. STREETT                       7
mately sought a mistrial. As we found in Ham, defense counsel’s
actions "suggest that the double jeopardy argument was a mere after-
thought . . . conjured up long after the district court dismissed the
original jury." 58 F.3d at 84. Strict scrutiny is thus inappropriate in
this case. See Washington, 434 U.S. at 508.

                                 IV.

  For the foregoing reasons, the order of the district court is

                                                         AFFIRMED.
