           Case: 13-12310   Date Filed: 09/30/2015   Page: 1 of 22


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12310
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:12-cr-00237-LSC-HGD-5



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CHRISTOPHER LEE TUTTLE,
a.k.a. Red,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (September 30, 2015)

Before TJOFLAT, WILSON and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Christopher Tuttle (“Defendant”) was originally tried on drug-

related charges, but because the jury failed to reach a verdict after five days of

deliberation, the district court declared a mistrial. Seeking to bar a second trial on

these charges and arguing that there had been no manifest necessity for a mistrial,

Defendant filed a motion to dismiss the indictment, raising a double jeopardy

argument. The district court denied Defendant’s motion, and the latter now

appeals that ruling. For the reasons set out below, we AFFIRM.

                                I. BACKGROUND

      In August 2012, Defendant and others were charged in a multi-count

superseding indictment for drug offenses. The indictment charged Defendant with

one count of conspiracy to possess with intent to distribute 1000 kilograms or more

of marijuana (Count 1), in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A),

and seven counts of using a telephone to facilitate the commission of a drug-

trafficking crime (Counts 11–17), in violation of 21 U.S.C. § 843(b). Defendant

pled not guilty and the case went to trial. The Government’s case took two days to

present. Defendant did not present a case.

      Although the indictment charged Defendant with conspiring to possess 1000

or more kilograms of marijuana, the court explained in its charge to the jury that

the jury could find Defendant guilty of that conspiracy even if it did not find that

he conspired to possess at least 1000 kilograms of marijuana. Further, the court


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advised jurors that, if they did find Defendant guilty of the conspiracy count, they

would also have to unanimously agree as to the quantity 1 that he conspired to

possess. The above instruction was no surprise to Defendant or his counsel

because the court and parties had discussed, at the preceding charge conference,

the appropriate instructions to give the jury. Defendant never objected to this

instruction.

         The requirement for a unanimous verdict on the quantity of drugs

attributable to a defendant who has gone to trial arises out of somewhat recent

Supreme Court precedent. Specifically, the Supreme Court has held that when a

prosecutor seeks a statutory mandatory-minimum sentence or a higher statutory

maximum sentence based on the existence of a threshold quantity of drugs that

triggers these sentencing enhancements, the enhancement can be imposed only if

the jury unanimously agrees that the defendant is responsible for the applicable

drug amount. See Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151, 2155

(2013) (holding that any fact, other than a prior conviction, that increases the

statutory minimum penalty must be submitted to the jury and proved beyond a

reasonable doubt) and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding

that any fact, other than a prior conviction, that increases the penalty for a crime



1
    In discussing this issue, we use the words “quantity,” “amount,” and “weight,” synonymously.


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beyond the statutory maximum must be submitted to a jury and proved beyond a

reasonable doubt).

         Given the jury’s responsibility to now make the finding necessary to impose

either a mandatory-minimum sentence or a higher statutory maximum sentence

than would be available were the defendant not responsible for the threshold

amount of drugs, courts typically provide a special verdict form to permit the jury

to indicate the quantity of drugs it has found the defendant conspired to possess.

And a special verdict form was given to the jury in this case.

         Based on the special verdict form to which they agreed, the parties

apparently envisioned three possible sentencing outcomes, depending on the jury’s

determination of the applicable quantity. 2 First, if the jury unanimously found that



2
    With respect to the conspiracy charge, the verdict form read as follows:

         1. We, the Jury, find the Defendant Christopher Lee Tuttle __________ as charged in
         Count One of the Superseding Indictment.

         [Note: If you find the Defendant not guilty as charged in Count One, STOP! Do
         not consider paragraphs 2–9 below.]

         2. We, the Jury, having found the Defendant guilty of the offense charged in
         Count One, further find with respect to the Count that he conspired to possess
         with intent to distribute and to distribute the following controlled substance in
         the amount shown (place an X in the appropriate box):
         (a) Marijuana:

          (i)     Weighing 1000 kilograms or more                               
          (ii)    Weighing 100 kilograms or more, but less than
                  1000 kilograms                                                

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the weight of the marijuana that Defendant conspired to possess was equal to or

greater than 1000 kilograms, Defendant was subject to a 10-year mandatory-

minimum sentence and a statutory maximum sentence of life in prison. 21 U.S.C.

§ 841(b)(1)(A)(vii). If it found that Defendant was responsible for a quantity

involving 100 or more kilograms, but less than 1000 kilograms, Defendant was

subject to a 5-year mandatory-minimum sentence and a maximum sentence of 40

years in prison. § 841(b)(1)(B)(vii). Finally, if the jury found that the quantity of

marijuana attributable to Defendant was less than 100 kilograms, then he would be

subject to no mandatory-minimum. But, in that event, it is unclear what statutory

maximum the parties envisioned being applicable because § 841 provides for a

maximum sentence of 20 years if the quantity of marijuana is between 50–100

kilograms, but only a 5-year maximum sentence if the quantity is less than 50

kilograms, unless there are 50 or more marijuana plants involved. See

§§ 841(b)(1)(C) and (D). As the third option asked the jury whether it concluded

that Defendant had conspired to distribute less than 100 kilograms, it would appear

that the parties envisioned a statutory maximum of 20 years. At any rate, because

the jury was unable to reach a unanimous verdict on any quantity, this ambiguity

does not affect the question before us on this appeal.



       (iii)   Weighing less than 100 kilograms                        


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       About five hours into deliberations, the jury reported that it was divided.

The court instructed the jury to continue deliberating. On the third day of

deliberations, the jury informed the court that it was in agreement on Count 1, the

conspiracy count, but was deadlocked on the seven telephone counts (Counts 11–

17). With the parties’ consent, and pursuant to Federal Rule of Criminal Procedure

31(b)(2),3 the court informed the jury that it could return a verdict for any count on

which there was unanimous agreement.

       About an hour and a half later, however, the jury submitted another question,

this time asking if it was “allowed to give a partial verdict only on Count #1, and

not apply[] a weight to the illegal substance.” The note further stated, “This

answer will help us to decide on a partial verdict.” Logically reasoning that the

jury must have found Defendant guilty of conspiracy, but had not yet agreed on the

weight to be attributed to him, the district court observed, “It sounds like they have

answered question one unanimously but not question two, which is quantity, and

want to know if they are required to reach a unanimous verdict on quantity, which

they are.” The prosecutor agreed that if the jury found Defendant guilty of

conspiracy (Question 1), then it had to reach unanimous agreement on the quantity

3
  Federal Rule of Criminal Procedure 31 provides that, in a case involving multiple counts, if the
jury cannot agree on all counts, the jury may return a verdict on those counts on which it has
agreed. Fed. R. Crim. P. 31(b)(2). The Rule further provides that if the jury cannot agree on a
verdict as to one or more counts, the court may declare a mistrial on those counts and the
defendant may be retried on any count on which the jury could not agree. Fed. R. Crim. P.
31(b)(3).


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of marijuana as well (Question 2). The court stated it intended to instruct the jury

that it had to agree unanimously on both the question of guilt and the question of

quantity in order to return a verdict on Count 1. Defendant did not object, and the

court delivered that instruction.

       Late on the fourth day, the jury again informed the court it could not agree

on the weight of the marijuana, so the court proposed delivering an Allen 4 charge.

As the parties discussed the substance of an Allen charge, the court indicated it

would focus on the weight of the drugs because if the jury could not agree on that

issue, a mistrial had to be declared. On that subject, the prosecutor altered his

previous position, opining the possibility that the quantity of drugs was not an

element of the offense under § 841, and so, if the jury did not agree on the amount,

the sentencing range would default to the lowest one. Interestingly, and contrary to

the position that Defendant is taking on appeal, defense counsel said she disagreed

with the prosecutor on that point, but did not elaborate.

       Before bringing the jury back in, the court asked the parties to consider

overnight whether it should accept a verdict on guilt alone, or whether the parties

wanted to move for a mistrial. Defense counsel objected generally to an Allen

charge but did not object to a specific instruction that the jury must return a

4
  Allen v. United States, 164 U.S. 492 (1896). An Allen charge “instructs a deadlocked jury to
undertake further efforts to reach a verdict.” United States v. Chigbo, 38 F.3d 543, 544 n.1 (11th
Cir. 1994).


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unanimous verdict on both questions: guilt and weight of the marijuana. The court

then instructed the jury: “If you cannot reach a verdict—a unanimous verdict with

regard to Question 2, then you should return to the courtroom, and the Judge will

declare this case mistried and discharge you with sincere appreciation for your

services.” The jury deliberated for another hour and then adjourned for the

evening, again without a verdict.

      On day five, the court invited argument from the parties about declaring a

mistrial. At this point, the jury had been deliberating for three to four hours since

receiving the modified Allen charge. Both parties requested that deliberation be

allowed to continue. The court, however, decided to declare a mistrial because the

jury (1) was in its fifth day of deliberations following only two days of evidence,

(2) had received a modified Allen charge, and (3) had been focusing exclusively on

the quantity issue in Count 1 for two entire days, after having deadlocked earlier on

all the other counts.

      Defense counsel inquired whether the court was inclined to accept a partial

verdict on the conspiracy count by receiving the jury’s answer to Question 1. The

court explained that, in that event, the Government would have to stipulate to the

lowest quantity under the statute, which the Government declined to do. When the

judge repeated that a decision on quantity was necessary to render a complete




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verdict on Count 1, once again defense counsel offered no disagreement or

objection. The court then declared a mistrial and excused the jury.

      Subsequently, Defendant filed a motion to dismiss the indictment, asserting

that because there had not been a manifest necessity to declare a mistrial in the first

place, a retrial would violate the Double Jeopardy Clause. This motion was based

on Defendant’s argument that the court had prematurely declared a mistrial and

instead should have waited a bit longer to confirm that the jury was unable to reach

a verdict. There was no mention in this motion to dismiss of any concern by

Defendant that the court had insisted that the jury determine unanimously the

quantity to be attributed to Defendant. The court denied the motion to dismiss, and

this appeal followed.

      Notwithstanding his absolute silence, both at trial and in the motion to

dismiss, as to the accuracy of the district court’s assumption that the jury needed to

reach a unanimous verdict on the quantity question before the court could accept a

guilty verdict on the conspiracy count, Defendant has now made that decision his

primary argument on appeal. Defendant also repeats the argument made before the

district court that the latter erred in declaring a mistrial less than four hours after

giving an Allen charge. Finally, Defendant argues that the court erred because it

based its decision to declare a mistrial on impermissible considerations.




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                                  II. DISCUSSION

      A.     District Court’s Requirement that the Jury Reach a Unanimous
             Verdict as to the Quantity of Drugs Defendant Conspired to
             Distribute

             1.     Standards of Review

      Defendant argues that the Double Jeopardy Clause operates to prevent a

second trial of him on these charges. Found in the Fifth Amendment of the

Constitution, the Double Jeopardy Clause protects a criminal defendant from being

subjected to multiple prosecutions for the same offense. U.S. Const. amend. V.

Jeopardy is said to have attached when the jury is empaneled and sworn. And,

once jeopardy has attached, the defendant generally enjoys a constitutional right to

have his case decided by that jury. United States v. Therve, 764 F.3d 1293, 1298

(11th Cir. 2014). But this rule is not absolute because a defendant’s “valued right

to have his trial completed by a particular tribunal must in some instances be

subordinated to the public’s interest in fair trials designed to end in just

judgments.” Id. (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). District

courts are thus permitted to declare a mistrial where, taking into consideration all

of the circumstances, there is a manifest necessity to do so. Id.

      The denial of a motion to dismiss an indictment on double jeopardy grounds

is an appealable final order. When preserved, we review a claim of double

jeopardy for an abuse of discretion. United States v. Davis, 708 F.3d 1216, 1221


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(11th Cir. 2013). Defendant’s contention that the district court prematurely

declared a mistrial and instead should have given the jury more time was an

argument that he preserved, and hence an abuse of discretion standard applies to

that argument.

       When a defendant fails to object to a matter that he later asserts on appeal,

however, he has failed to preserve that issue for appeal purposes, meaning that the

alleged misstep by the district court can be a basis for reversal only if it is deemed

to be plain error. United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007).

As to Defendant’s present challenge to the district court’s requirement that the jury

return a unanimous verdict on the quantity of drugs involved, he voiced no

objection at trial to this requirement, and accordingly a plain error standard of

review applies.

               2.     Defendant’s Belated Complaint About the Court’s Action

       Defendant now asks us to forbid any retrial of him, at least as to the

conspiracy count of the indictment. 5 He argues that we should do so because the



5
  We do not understand Defendant to be arguing that an error by the district court in declaring a
mistrial on Count 1 means that he should also walk free as to all the other counts of the
indictment. Certainly, there would be no justification for such an outcome. By the third day of
the five-day deliberation period, it was clear that the jury was deadlocked on the seven telephone
counts. Neither Defendant, the Government, nor the court ever questioned that reality. And
nothing ever happened in the next two days of deliberation to suggest that the jury was even
considering those counts any more. Accordingly, it was clear that a mistrial would be declared
on those seven counts, regardless of what the jury did on Count 1. Therefore, whatever the
merits of Defendant’s double jeopardy challenge to Count 1, we conclude that there was clearly a
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district court could have accepted the jury’s apparent finding of his guilt on Count

1 without insisting that it also agree on the quantity of drugs that he conspired to

possess. The court’s failure to follow that course of action, says Defendant, means

that there was no manifest necessity for a mistrial. Oddly, although Defendant

makes this argument the centerpiece of the present appeal, the issue never seemed

significant enough to him at trial to warrant an objection to the court’s decision.

And Defendant had multiple opportunities to object. More than that, Defendant

also failed even to articulate this objection in the motion to dismiss indictment that

he later filed before the district court, whose order denying that motion is now the

subject of this appeal.

       By failing to object, Defendant never gave the district court an opportunity

to consider the arguments that Defendant now makes on appeal and to correct its

course, if that course was in fact ill-advised. To preserve an issue for appeal, “one

must raise an objection that is sufficient to apprise the trial court and the opposing

party of the particular grounds upon which appellate relief will later be sought.”

Straub, 508 F.3d at 1011 (quoting United States v. Dennis, 786 F2d 1029, 1042

(11th Cir. 1986)) (internal quotation marks omitted). When a party fails to object

to a ruling that it later seeks to challenge on appeal, it can prevail only if the



manifest necessity to declare a mistrial on the other seven counts and, thus, Defendant should
obviously face a retrial on those counts.


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challenged ruling constituted plain error. Under plain error review, a party must

demonstrate that: (1) an error occurred, (2) that was plain, (3) that affected

substantial rights, and (4) that seriously affected the fairness, integrity, or public

reputation of the judicial proceeding. Id. at 1008. An error is plain if it violates

either the plain meaning of a statute or constitutional provision or a holding of the

Supreme Court or this Court. United States v. Pantle, 637 F.3d 1172, 1174–75

(11th Cir. 2011).

      Similarly, Defendant failed to assert in his motion to dismiss indictment this

issue that he now raises on appeal. Just as with an unobjected-to ruling, we review

arguments not raised before the district court only for plain error. United States v.

Perez, 661 F.3d 568, 583 (11th Cir.2011); United States v. Abraham, 386 F.3d

1033, 1036 (11th Cir. 2004) (applying plain error review when the defendant

raised a new argument on appeal in support of his motion for mistrial).

      We thus review Defendant’s present claim for plain error and conclude that,

even if erroneous, the district court’s now-challenged decision was not plainly

erroneous.

      3.     Application of Plain Error Standard

      As noted, because he never objected or called to the district court’s attention

any concern about the court’s belief that the jury had to agree unanimously on the

quantity of the drugs at issue, Defendant can prevail on this present claim only if


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he can first show that the court committed error and that this error was plain.

Assuming for purposes of this appeal that the district court erred, we conclude that

this error was not plain. For an error to be considered plain, there must be a statute

or controlling authority from either this Court or the Supreme Court that squarely

supports the Defendant’s argument. See Pantle, 637 F.3d at 1174–75. Further, the

Supreme Court has instructed us that plain error review should be exercised

sparingly and only in circumstances in which a miscarriage of justice would

otherwise occur. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005). We, ourselves, have noted that the plain error rule “places a daunting

obstacle before [the appellant].” Id. (internal citation omitted).

      On appeal, Defendant has failed to grapple with the plain error standard of

review. He does not mention it in his opening brief and, even though the

Government relied on this standard of review in its own brief, Defendant’s reply

brief is silent as to how he can hurdle that standard in this case. We, ourselves,

have found no case on point that would have clearly alerted the district court to its

obligation to accept the jury’s partial verdict on the specific facts of this case. In

fact, we appear to be the first circuit court to be confronted with this specific

question. The only federal case cited by Defendant is a 1977 Sixth Circuit case on

which we find no other federal circuit court to have relied: Wallace v. Havener,




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552 F.2d 721, 723 (6th Cir. 1977). 6 On federal habeas review, the Sixth Circuit

concluded that the state trial court abused its discretion when, over the objection of

the defendant, it refused to accept the jury’s partial verdict on four counts of a five-

count indictment. As a result, the court concluded that the Double Jeopardy Clause

precluded a retrial on those counts. Id.

       Defendant argues that the district court here likewise abused its discretion in

failing to accept the jury’s partial verdict on Count 1. But Wallace is quite distinct,

factually, from this case, and it is not an Eleventh Circuit case. We repeat,

“[T]here can be no plain error where there is no precedent from the Supreme Court

or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288,

1291 (11th Cir. 2003).

       Even were we to assume that the district court erred and that this error was

plain, Defendant would still have to demonstrate that his substantial rights were

undermined by the error and that the error seriously affected the fairness, integrity,

or public reputation of the judicial proceedings. See Rodriguez, 398 F.3d at 1298

(“If all three conditions are met, an appellate court may then exercise its discretion

to notice a forfeited error, but only if (4) the error seriously affects the fairness,

6
  In Wallace, the jury in a state trial had announced, without disclosing its verdict, that it had
reached verdicts on four counts of the indictment charging the defendant with shooting with
intent to kill and with illegally possessing a firearm. But it also indicated that it could not reach a
verdict on the armed robbery count. Over the objection of defense counsel, who asked the court
to accept whatever verdicts the jury had reached, the state trial court declared a mistrial as to all
counts. 552 F.2d at 723.


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integrity, or public reputation of judicial proceedings.” Id. (quotations and internal

marks omitted)).

      Given his failure to object to the court’s requirement that the jury

unanimously determine quantity—and once even indicating his disagreement that

the jury could return a verdict on guilt, without also deciding the question of

quantity—Defendant cannot show that the fairness of his proceedings were

undermined by the court’s refusal to accept the jury’s partial answer to the

questions concerning the conspiracy count. Indeed, the outcome that Defendant

now advocates would diminish the public reputation of judicial proceedings.

Specifically, at the time the district court was deciding how to handle the jury’s

inability to decide unanimously the drug-quantity question, Defendant had clearly

dodged, at least temporarily, a conviction on the seven telephone counts on which

the jury had deadlocked. Seemingly, all that stood between Defendant and a

conviction on the sole remaining conspiracy count was the district court’s

insistence that the jury be required to unanimously decide the quantity of drugs

attributable to Defendant: something the jury over five days had not been able to

do. One can understand why, in such a circumstance, a defendant might choose

not to object when the trial court takes an action that effectively prevents the jury

from rendering a verdict of guilty.




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       It is one thing for a defendant to pursue a strategy that will achieve at least a

temporary reprieve from a possible conviction. It is quite another, however, for

him to try to render permanent that reprieve by switching legal gears after the trial

and attacking the court’s decision on a new ground that, if successful, will give the

defendant a pass altogether on the criminal charge. And if Defendant’s Double

Jeopardy argument were to succeed here, that is what he would have

accomplished. 7 Defendant’s effort to have his cake and eat it too would produce

an outcome that does not serve the “fairness, integrity, and public reputation of

judicial proceedings.”

       Accordingly, we conclude that Defendant failed to demonstrate that the

district court plainly erred in refusing to accept the jury’s verdict on Defendant’s

guilt as to the conspiracy count, given the jury’s inability to determine the drug

quantity and given Defendant’s failure to object. 8




7
  The premise of Defendant’s Double Jeopardy argument is that the jury had effectively
convicted him on the conspiracy count and that the only remaining step necessary to finalize that
decision was the court’s agreement to accept the partial verdict. Yet, nowhere does Defendant
offer to accept, as appropriate relief for a successful challenge, a guilty verdict on the conspiracy
count, with the sentencing options to be provided by that part of the statute providing the lowest
penalties.
8
   We decide this issue on a plain error standard of review, meaning that our affirmance does not
necessarily indicate our endorsement of the district court’s premise that the jury had to reach a
unanimous decision on drug quantity in order to render a verdict. Because the briefing before us
is insufficient to permit a decision on that underlying question, we do not resolve that issue here.

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      B. Declaration of Mistrial without a Manifest Necessity

      Defendant also repeats the argument that was the basis for his motion to

dismiss: specifically, that the district court prematurely declared a mistrial less

than four hours after it had delivered the Allen charge and before it was clear that

the jury would be unable to return a verdict. At trial, Defendant had requested that

the jury be allowed to continue its deliberations as to the drug-quantity question.

Thus, as the Government concedes, Defendant has preserved this claimed error,

and it is therefore reviewed for an abuse of discretion.

      A district court abuses its discretion in denying a motion to dismiss an

indictment on double jeopardy grounds when a mistrial ruling was not manifestly

necessary. Davis, 708 F.3d at 1221. Whether manifest necessity exists is a fact-

intensive inquiry, and we review the entire record without limiting ourselves to the

district court’s findings. Id. When a mistrial is granted over the defendant’s

objection, the Government bears the heavy burden of justifying it. United States v.

Chica, 14 F.3d 1527, 1531 (11th Cir. 1994).

      Here, the district court declared a mistrial due to a jury’s inability to reach a

verdict. This ground, which is the “classic basis for a proper mistrial,” is generally

accorded great deference. Therve, 764 F.3d at 1298–99 (citing Washington, 434

U.S. at 509–10). And for good reason, because the district court is in the best

position to assess the relevant factors in determining whether the jury will be able


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to reach a just verdict upon continued deliberation. Washington, 434 U.S. at 510

n.28. Indeed, a trial court will generally have a strong incentive to obtain a verdict

in a case and thereby avoid the need for a second trial. Nevertheless, the district

court must exercise sound discretion in deciding to declare a mistrial, and close

appellate scrutiny is warranted where “the trial judge acts for reasons completely

unrelated to the trial problem which purports to be the basis for the mistrial ruling.”

Id.

       We consider a number of relevant factors in determining whether a mistrial

was manifestly necessary, including the length of the trial and complexity of the

issues involved, the length of the jury’s deliberation, and the jury’s

communications with the trial judge, which are particularly significant. United

States v. Gordy, 526 F.2d 631, 635–36 (5th Cir. 1976)9 (noting that the jury’s

statement that it is hopelessly deadlocked is a crucial—but not necessarily

determinative—factor of whether further deliberations might be helpful); see also

Therve, 764 F.3d at 1300 (affirming the declaration of a mistrial in light of the

jury’s statements that it was deadlocked, the short duration of the trial, and the

straightforward nature of the issues). Additionally, we consider whether the

district court afforded the parties an opportunity to explain their positions and to

9
  In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit Court of Appeals
handed down before October 1, 1981.


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make suggestions regarding possible alternatives to declaring a mistrial. Id. at

1301. We will uphold the district court’s decision “where the record, considered as

a whole, indicates that the trial judge . . . carefully considered the alternatives and

did not act in an abrupt, erratic, or precipitate manner.” Grandberry v. Bonner,

653 F.2d 1010, 1014 (5th Cir. Unit A Aug. 1981).

      According to Defendant, because the court (1) instructed the jury to return to

the courtroom if it could not reach a unanimous verdict and (2) told the jury it

could be leisurely in its deliberations, the court should have either waited for the

jury to announce it was still deadlocked or consulted the jury before declaring a

mistrial. But by the time the jury received the Allen charge, it had been

deliberating over the course of four days, after just a two-day trial, with much of

that time having been spent in an effort to decide this quantity question. In fact,

after an overnight recess and four more hours of post-Allen charge deliberation, the

jury had still failed to reach a verdict on this single discrete matter.

      Further, the court gave the parties an opportunity to be heard before deciding

to call a halt to the proceedings. In fact, we must remember that just the afternoon

before, when the jury had announced itself deadlocked, Defendant opposed the

giving of an Allen charge, which action arguably implied his belief that a mistrial

should have been declared right then. It is somewhat awkward for Defendant to

now argue that the court should have given the jury even more time to deliberate


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when earlier Defendant had effectively objected to the additional time that the

court had allowed them.

       Admittedly, it would have been prudent for the district court to have called

the jury back into the courtroom to formally confirm, again, its inability to reach a

verdict. Had that occurred, we would likely not be facing this issue. But,

nonetheless, based on all the above facts, we conclude that the court did not abuse

its discretion by declaring a mistrial.

       C. Declaration of a Mistrial Based on Impermissible Considerations

       Finally, Defendant argues that in declaring a mistrial, the district court relied

on impermissible considerations and failed to consider reasonable alternatives.

Defendant did not adequately raise these arguments in his motion to dismiss, so we

review for plain error. Having carefully reviewed the record, we are unpersuaded

that the court considered any impermissible factors, 10 and conclude that it

adequately considered alternatives to a mistrial.




10
   Because of scheduling conflicts, the district court judge relied on other judges to supervise
jury deliberations during several late afternoon hours of deliberation. In explaining to the jury
this arrangement, the judge joked that he would have to spend much of his salary compensating
these judges for their “babysitting” duties. Contrary to Defendant’s suggestion that the judge
had therefore revealed a financial incentive to stop the proceedings, it is obvious that the judge
was not actually paying his colleagues to help him out and that his comments were intended to
be humorous.


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            Case: 13-12310     Date Filed: 09/30/2015   Page: 22 of 22


                              III. CONCLUSION

      For the above reasons, we affirm the district court’s denial of Defendant’s

motion to dismiss the indictment.

      AFFIRMED.




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