                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                    No. 11-2597
                   _____________

         UNITED STATES OF AMERICA

                          v.

                CARLOS FIGUEROA
                  a/k/a JOSE CURZ,
              a/k/a CARLOS RIVERA,
             a/k/a CARLOS FIGUEROA

             Carlos Figueroa, Appellant
                  _____________

   On Appeal from the United States District Court
       for the District of Eastern Pennsylvania
       (D.C. Criminal No. 2-08-cr-00038-001)
   District Judge: Honorable Mary A. McLaughlin
                         ______

  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                   June 19, 2012

Before: AMBRO, VANASKIE and VAN ANTWERPEN,
                 Circuit Judges
                    (Filed: June 26, 2012)

Paul M. George
McKinney & George
239 South Camac Street
Philadelphia, PA 19107,
              Counsel for Appellant

Zane David Memeger
Robert A. Zauzmer
Emily McKillip
Floyd J. Miller
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
              Counsel for Appellee

                           ______

                OPINION OF THE COURT
                       ______

VAN ANTWERPEN, Circuit Judge.

       Carlos Figueroa was convicted of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924 (e). He appeals, arguing procedural errors regarding
the bifurcated nature of the trial and temporary discharge of
the jury violated his rights under the Double Jeopardy and
Due Process Clauses. We will affirm.




                              2
                              I.

       On December 14, 2006, Figueroa sold four small
packets of heroin to Brian Myers, an undercover Philadelphia
Police Department (“PPD”) officer. Myers returned later the
same day and made a second purchase of four packets; two
contained cocaine and two contained heroin. Figueroa
admitted at trial that he had sold the drugs to Myers.

       During the second purchase, Myers saw “what
appeared to be” a gun tucked into Figueroa’s waistband.
Myers admitted that it was dark when he made this
observation, and that he only saw a few inches of the object.
He was not sure, therefore, that it was actually a gun. Soon
after this second sale, PPD officers stopped the car driven,
and owned, by Figueroa’s girlfriend, Jennifer Sawyer.
Figueroa was seated in the front passenger’s seat. Officers
removed both occupants from the car; one officer opened the
glove compartment and recovered a handgun. Both Sawyer
and Figueroa denied owning, or even knowing of, the firearm.
No forensic evidence connected either individual to the
firearm.

        A grand jury indicted Figueroa on January 22, 2008.
The grand jury charged him with one count of distribution of
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)
(Count One), one count of distribution of cocaine, in violation
of 21 U.S.C. § 841(a)(1) (Count Two), one count of carrying
a firearm during a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1) (Count Three), and one count of
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (Count Four).




                              3
        Figueroa’s trial started on December 14, 2009. Count
Four was bifurcated from the other counts. Figueroa admitted
that he sold the drugs and was guilty of Counts One and Two.
He denied, however, possessing either the firearm Myers
observed on his person or the firearm discovered in the glove
compartment. On December 16, the jury began deliberations
on Counts One, Two, and Three. Deliberations began at 3:10
p.m., and at 4:50 p.m. the jury sent a note 1 that said: “We are
split regarding his actual possession of weapon during the
exchange.” 2 At 6:00 p.m. another note was received that
said: “Do not believe we’re going to be able to reach a
unanimous decision on the third charge.”


1
  The language of the notes is quoted according to Judge
McLaughlin’s on-the-record statements.
2
  During trial, the government prosecuted Count Three on an
actual possession theory, based on Officer Myers’ testimony
that he observed a firearm in Figueroa’s waistband. It did not
try to connect the firearm in the glove compartment to Count
Three because Figueroa’s possession of the firearm, while in
the car, was irrelevant to the charge under 18 U.S.C. §
924(c)(1)(A). Under § 924(c)(1)(A) the firearm must have
been used or carried in relation to the drug trafficking crime
or possessed in furtherance of the drug trafficking crime. The
government did not argue either prong was met on the facts of
this case. The firearm in the glove compartment was
relevant, however, to whether Figueroa violated the
prohibition in 18 U.S.C. § 922(g)(1) on convicted felons
possessing a firearm that has travelled through interstate
commerce. To that end, the prosecuting attorney wanted to
argue constructive possession of the firearm in the glove
compartment in the part of the trial pertaining to Count Four.




                               4
       The jury was reconvened the following day. At 1:48
p.m. the jury again sent a note, stating “Your Honor, we will
not be able to reach a verdict on the gun charge.” Defense
counsel felt the jury should continue to deliberate, but Judge
McLaughlin stated that it would be coercive given the notes
received and time already spent deliberating. The prosecutor
believed the jury’s verdict should be received at that time.

       Judge McLaughlin then asked the prosecutor “what
should we do with Count [Four], if indeed I do declare a
mistrial on Count [Three], Mr. Miller?” The prosecutor
responded that the court should proceed with the bifurcated
portion of the trial. Defense counsel opposed this position,
and argued that giving the jury Count Four would put the jury
“back in the same situation they are right now.” Judge
McLaughlin agreed, and stated that it “would be coercive” to
give them another charge after they could not decide the
possession element of Count Three.

       Next, Judge McLaughlin brought the jury into the
courtroom. The foreperson stated that the jury had reached
verdicts as to Counts One and Two. Judge McLaughlin asked
the foreperson whether it had reached a unanimous verdict as
to Count Three. The foreperson replied that it had not. Judge
McLaughlin inquired whether it would be able to reach such a
verdict with more time, and the members of the jury indicated
they would not reach a unanimous verdict.               Judge
McLaughlin then published the verdicts. The jury found
Figueroa guilty on Counts One and Two. Judge McLaughlin
thanked the jury members for their service and released them.
Immediately upon their exit, the chief of the firearms section
of the U.S. Attorney’s Office, Francis Barbieri, presented
himself to the court and asked that the jury be held so Count




                              5
Four could be further discussed.          Judge McLaughlin
immediately sent a court employee to hold the jury.
       Barbieri stated that a finding of “manifest necessity”
was required to properly declare a mistrial. Barbieri
explained that although such a finding was appropriate as to
Count Three due to the jury’s inability to reach a verdict, it
would not be appropriate as to Count Four if the jury was
never presented with the Count and instructed as to its
elements. Judge McLaughlin stated that, “obviously when I
made the finding that I did, I assumed there would be a retrial
on Counts [Three] and [Four].” Given the government’s
concern, Judge McLaughlin left the bench and researched the
issue. When she returned, she concluded that she would
bring the jury back into the courtroom to consider Count
Four.

       Figueroa’s defense counsel did not object at any point
to these events. Judge McLaughlin brought the jury back and
rescinded her prior dismissal. The evidence regarding Count
Four was set forth. Two of the three elements of Count Four
were stipulated: that Figueroa had a prior conviction and that
the firearm had traveled in interstate commerce. The
attorneys then made short closing arguments as to the third
element, possession. Judge McLaughlin charged the jury on
Count Four, and it returned a verdict of guilty. Figueroa was
sentenced to 180 months, the statutory minimum for Count
Four.

                              II.

                              A.




                              6
       The District Court exercised jurisdiction pursuant to 18
U.S.C. § 3231. We exercise jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the
District Court’s actions for plain error because Figueroa did
not object below. To demonstrate plain error an appellant
must show: “(1) that there was an error, i.e., a deviation from
a legal rule, (2) that the error was ‘plain,’ i.e., clear or
obvious, and (3) that the error affected his substantial rights.”
United States v. Corso, 549 F.3d 921, 928 (3d Cir. 2008).

                               B.

       Figueroa contends that his rights under the Double
Jeopardy and Due Process Clauses of the Fifth Amendment
were violated. Never before, he argues, has a judge asked for
the opinions of both parties regarding dismissing a jury,
reached a decision on the record regarding the issue,
proceeded to dismiss the jury, and then reconvened the same
jury and presented it with new evidence regarding an
additional criminal charge. After reviewing the record and
relevant case law, we conclude that the District Court did not
commit error, let alone plain error, when it brought the jury
back into the courtroom and instructed it to decide Count
Four.

       The discharge or release of jurors can be problematic
because, upon release, they become susceptible to outside
influences. The “protective shield” imposed by a court
throughout the proceeding aims to prevent jurors from being
influenced by outside factors. See People v. McNeeley, 575
N.E.2d 926, 929 (Ill. App. Ct. 1991) (describing a court’s
efforts at preventing jurors from being influenced by
improper outside factors as a “protective shield”). Judges




                               7
reiterate this concern time and again to jurors. When the
jurors are discharged after their decision, the concern
regarding outside influences ends. Because the proceedings
and the jury’s deliberation process can no longer be affected,
often, as happened here, the jurors are instructed that they
may discuss the case with the parties or other individuals.
See United States v. Marinari, 32 F.3d 1209, 1214 (7th Cir.
1994) (“Of course, after discharge, the jurors are quite
properly free to discuss the case with whomever they
choose.”).

       In cases such as Figueroa’s, the pivotal inquiry is
whether the jurors became susceptible to outside influences.
“When a jury remains as an undispersed unit within the
control of the court and with no opportunity to mingle with or
discuss the case with others, it is undischarged and may be
recalled.” Marinari, 32 F.3d at 1213 (citing Summers v.
United States, 11 F.2d 583 (4th Cir. 1926)); see also United
States v. Rojas, 617 F.3d 669, 678 (2d Cir. 2010) (“It is
significant that, although the jury had technically been
declared ‘discharged’ by the court, it had not dispersed.”). As
the Fourth Circuit long ago stated, “the mere announcement
of [the jury’s] discharge does not, before they have dispersed
and mingled with the bystanders, preclude recalling them.”
Summers, 11 F.2d at 586 (citing AUSTIN ABBOTT, A BRIEF
FOR THE TRIAL OF CRIMINAL CASES 730 (2d ed. 1902)).

       In this case, the jury returned its verdict as to Counts
One and Two, and notified the District Court that it could not
reach a verdict as to Count Three. The District Court below
retained control of the jury at all times after it informed the
jurors they were released. The jurors did not disperse and
interact with any outside individuals, ideas, or coverage of the




                               8
proceedings. Thus the fact that the jury was momentarily
released did not subject them to outside influence.
Accordingly, the District Court did not err by reconvening the
jury for Count Four.
                                 C.

       We now turn to Figueroa’s Double Jeopardy claim.
“The constitutional prohibition against ‘double jeopardy’ was
designed to protect an individual from being subjected to the
hazards of trial and possible conviction more than once for an
alleged offense.” Green v. United States, 355 U.S. 184, 187
(1957). If a mistrial is properly declared it does not prevent
reprosecution. See Richardson v. United States, 468 U.S.
317, 325 (1984) (“[W]e reaffirm the proposition that a trial
court's declaration of a mistrial following a hung jury is not
an event that terminates the original jeopardy to which
petitioner was subjected.”). “The power to declare a mistrial
‘ought to be used with the greatest caution, under urgent
circumstances, and for very plain and obvious causes.’”
United States v. Rivera, 384 F.3d 49, 55 (3d Cir. 2004) (citing
United States v. Perez, 22 U.S. 579, 580 (1824)). “Only
where the mistrial is required by ‘manifest necessity’ will
reprosecution be permitted under the Double Jeopardy
Clause.” Id.

      Here, a mistrial was properly declared regarding Count
      3
Three. But, as the government noted, the record was not

3
   The declaration of a mistrial does not prevent the
government from reprosecuting the charge. Richardson, 468
U.S. at 325 (“[W]e reaffirm the proposition that a trial court's
declaration of a mistrial following a hung jury is not an event
that terminates the original jeopardy to which petitioner was




                               9
clear as to the “manifest necessity” of declaring a mistrial
regarding Count Four. Judge McLaughlin decided that it may
have been improper to declare a mistrial on Count Four
without having any jury deliberations from which “manifest
necessity” could be demonstrated. Figueroa’s counsel did not
object to her conclusion. None of the protections afforded by
the Double Jeopardy Clause was implicated by the District
Court’s decision to bring the jury back into the courtroom to
consider a charge that had not previously been presented to
them. 4 If anything, this action was required to avoid
prejudicing the government on Count Four. See Richardson,
468 U.S. at 326 (“The Government, like the defendant, is
entitled to resolution of the case by verdict from the jury . . .
.”). For these reasons we determine that the District Court did
not violate Figueroa’s rights under the Double Jeopardy
Clause.

                               III.



subjected.”). Figueroa could have been retried on Count
Three given the appropriate “manifest necessity” finding
made by the District Court. See id. at 323–24 (“It has been
established for 160 years, since the opinion of Justice Story in
United States v. Perez, that a failure of the jury to agree on a
verdict was an instance of ‘manifest necessity’ which
permitted a trial judge to terminate the first trial and retry the
defendant, because ‘the ends of public justice would
otherwise be defeated.’” (quoting Perez, 22 U.S. 579, 580
(1824))).
4
  The bifurcated nature of the trial created a situation where
the jury was not even aware of Count Four.




                               10
      For the foregoing reasons, we will affirm Figueroa’s
conviction.




                           11
