          United States Court of Appeals
                      For the First Circuit


No. 18-1873

                    UNITED STATES OF AMERICA,

                            Appellant,

                                v.

              CHARLES W. GARSKE, A/K/A CHUCK GARSKE;
               RICHARD J. GOTTCENT; MICHAEL SEDLAK,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                              Before

                   Thompson, Selya, and Barron,
                          Circuit Judges.


     Cynthia A. Young, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellant.
     David Spears, with whom Josiah Pertz, Spears & Imes LLP,
Justine Harris, Michael Gibaldi, Sher Tremonte LLP, William J.
Cintolo, Meredith Fierro, and Cosgrove, Eisenberg & Kiley, PC were
on joint brief, for appellees.


                        September 20, 2019
             SELYA, Circuit Judge. This appeal requires us to address

a novel question implicating the Double Jeopardy Clause.          See U.S.

Const. amend. V.      Concluding, as we do, that the district court

erred in holding that the defendants were insulated from a retrial

by double jeopardy principles, we reverse the district court's

order of dismissal and remand the case for further proceedings

consistent with this opinion.

I. BACKGROUND

             We briefly rehearse the relevant facts and travel of the

case.    The reader who thirsts for more exegetic detail may wish to

consult the district court's comprehensive account.             See United

States v. Ackerly, 323 F. Supp. 3d 187, 190-92 (D. Mass. 2018).

             On August 10, 2016, a federal grand jury sitting in the

District of Massachusetts returned an indictment charging four

defendants — Donna Ackerly, Charles Garske, Richard Gottcent, and

Michael Sedlak — with multiple counts of wire fraud, honest-

services wire fraud, and conspiracy to commit both species of wire

fraud.     See 18 U.S.C. §§ 1343, 1346, 1349.               The indictment

recounted that between September of 2007 and March of 2012, the

four defendants conducted a fraudulent scheme while employed at

Georgeson,    Inc.,   a   firm   that   specializes   in   advising   public

companies on positions that institutional investors are likely to

take in voting their proxies with respect to corporate governance

proposals.    The alleged scheme consisted of bribing an employee of


                                    - 2 -
Institutional     Shareholder      Services,     Inc.   (ISS),      a    firm      that

advises    institutional      shareholder     clients   on    how       to    vote   on

particular proxy issues, in exchange for confidential information

about ISS's proxy-voting advice and then falsifying invoices to

Georgeson's clients to cover the cost of the bribes.

             Ackerly moved to sever, see Fed. R. Crim. P. 14(a),

arguing that she was "peripheral at most" to the conduct alleged

in   the   indictment   and    that    severance    would     shield         her   from

potentially prejudicial spillover attributable to the evidence

against    her   codefendants.        The     government     opposed         Ackerly's

motion,    and   the    district      court    sustained     the    government's

objection.    Ackerly renewed her severance motion approximately one

year later, but to no avail.

             Trial began on February 26, 2018, with twelve jurors and

two alternates empaneled. On the second day of trial, the district

court excused a juror who failed to report for duty.                On the fourth

day of trial, the court excused a second juror for medical reasons.

During the eleventh day of trial (Friday, March 16), the court

told the jurors that the presentation of evidence would conclude

on Monday, March 19, with final arguments and jury instructions to

follow.    Later that evening, a "distraught" Juror 12 contacted a

district court clerk, explaining that his wife had gone to the

hospital and he was concerned about continuing his jury service.




                                      - 3 -
He subsequently told the clerk that his wife had been diagnosed

with a brain tumor and would require surgery in the next few days.

          At 10:32 a.m. on Saturday morning, at the direction of

the district court, the clerk notified counsel by email about Juror

12's situation.   The clerk wrote that Federal Rule of Criminal

Procedure 23(b)(2)(B) "allows a reduction to 11 jurors with the

written consent of the parties and the judge" and added that the

court was "prepared to make the necessary finding of good cause

and look[ed] to the parties to agree."      Attorneys for Garske,

Gottcent, and Sedlak all responded, indicating their clients'

assent to proceeding with a jury of eleven. The government replied

by email at 12:18 p.m. that it "consent[ed] to proceed with 11."

At 2:53 p.m., the government clarified "that [its] consent is

conditioned on all four defendants consenting."   Ackerly's counsel

weighed in at 4:15 p.m., reminding the court that Ackerly had

sought severance from the inception of the case and stating that

she would not consent.    This email went on to assert that the

government witnesses set to testify that Monday would "not offer

any evidence against [Ackerly]," and that Ackerly was prepared to

move for a judgment of acquittal.   The government replied that the

evidentiary record as to Ackerly was "not complete."     Moreover,

the government noted that it was "puzzled by [Ackerly's] reference

to severance," expressing the view that it would be "terribly




                              - 4 -
inappropriate to use this circumstance in an attempt to achieve

that result."

            Later that afternoon, the clerk emailed the parties that

she had communicated their positions to the district court.             The

email explained, inter alia, that the court would not entertain

Ackerly's motion for judgment of acquittal and that it intended to

enter a finding of good cause for Juror 12's excusal on Monday,

March 19.      Finally, the email stated that the court "accept[ed]

the emails of the consenting defendants['] attorneys as made in

good faith and believe[d] that the double jeopardy clause g[ave]

. . . those defendants the right to proceed to a verdict with [the

empaneled] jury."      This email, however, proved to be premature.

Shortly after it was sent, the clerk reported to the parties that

the district court had just seen the government's second email —

clarifying that its consent was conditional — and the court "fe[lt]

it ha[d] no other choice than to declare a mistrial on Monday

morning."

            On Monday, the district court convened a non-evidentiary

hearing.    The court began by reiterating that the circumstances

"constitute[d] good cause for the juror's excusal."             Turning to

Rule 23(b)(2), the court noted that the rule was "as clear as a

rule   could    be"   in   stating   that    the   parties,   "which   would

necessarily include the government," must agree to proceed with a

jury of fewer than twelve.       Given the government's unwillingness


                                     - 5 -
to   consent   to   a   reduced   jury,    the   court   acknowledged   that

"[t]here's no power that I see, or discretion that I have, under

the rule to force any different result."           The court then related

that it had considered alternatives to the declaration of a

mistrial but could think of only one:        indefinitely postponing the

trial pending the return of Juror 12.            In the court's judgment,

though, such an alternative was not feasible due to the uncertainty

of the juror's wife's medical condition and the difficulty of

supervising the other jurors in the interim. The parties suggested

no other alternatives to a mistrial, but Garske, Gottcent, and

Sedlak objected to a mistrial on the ground that the government's

"conditional" consent did not demonstrate the requisite "manifest

necessity."

           At that point, the district court summoned the jury and

explained what had transpired.       The court declared a mistrial and

discharged the jurors. The following day, the government announced

that it intended to retry the defendants.

           On April 27, 2018, Garske, Gottcent, and Sedlak filed a

joint motion to preclude retrial and to dismiss the indictment

under the Double Jeopardy Clause on the ground that the government

could not establish "'manifest necessity' for its decision to force

the mistrial."      After hearing argument, the district court took

the matter under advisement.       In due course, the court handed down




                                   - 6 -
a rescript and granted the motion to dismiss the indictment.           This

timely appeal followed.

II. THE LEGAL LANDSCAPE

            This   case   presents    a   question   of   first   impression

arising at the intersection of Federal Rule of Criminal Procedure

23 and the Double Jeopardy Clause.           It implicates two competing

rights:    the right of all parties to have a criminal case decided

by a jury of twelve and a criminal defendant's right not to be

twice put in jeopardy.      We lay the groundwork for our analysis by

limning the applicable legal principles.

                               A. Rule 23.

            In Patton v. United States, 281 U.S. 276 (1930), the

Supreme Court held that a criminal defendant has a constitutional

right to a jury of twelve unless he waives that right.            See id. at

312.    The Court cautioned that "[i]n affirming the power of the

defendant in any criminal case to waive a trial by a constitutional

jury and submit to trial by a jury of less than twelve persons

. . . , we do not mean to hold that the waiver must be put into

effect at all events."       Id.     In amplification, the Court stated

that "before any waiver can become effective, the consent of

government counsel and the sanction of the court must be had, in

addition to the express and intelligent consent of the defendant."

Id.    Relatedly, "the duty of the trial court in that regard is not




                                     - 7 -
to be discharged as a mere matter of rote, but with sound and

advised discretion."    Id.

           The Patton Court's holding was later codified in Federal

Rule of Criminal Procedure 23.     See Fed. R. Crim. P. 23 advisory

committee notes to 1944 adoption.        Rule 23 declares that, except

as otherwise provided in the rule, "[a criminal] jury consists of

12 persons."     Fed. R. Crim. P. 23(b)(1).       The rule contains a

proviso, which states that "[a]t any time before the verdict, the

parties may, with the court's approval, stipulate in writing that:

(A) the jury may consist of fewer than 12 persons; or (B) a jury

of fewer than 12 persons may return a verdict if the court finds

it necessary to excuse a juror for good cause after the trial

begins."   Fed. R. Crim. P. 23(b)(2).       It follows that, by virtue

of the plain language of Rule 23, the consent of all parties and

the court is generally required to try a case to verdict with a

jury of eleven.1

                          B. Double Jeopardy.

           The Double Jeopardy Clause ensures 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.    It provides "a triumvirate


     1  There is an exception for situations in which jury
deliberations already have begun. See Fed. R. Crim. P. 23(b)(3)
(authorizing district court to "permit a jury of 11 persons to
return a verdict, even without a stipulation by the parties, if
the court finds good cause to excuse a [deliberating] juror").
This exception is not implicated in the case at hand.


                                 - 8 -
of safeguards:   'It protects against a second prosecution for the

same offense after acquittal.       It protects against a second

prosecution for the same offense after conviction. And it protects

against multiple punishments for the same offense.'" United States

v. Ortiz-Alarcon, 917 F.2d 651, 653 (1st Cir. 1990) (quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969)).    These safeguards

attach once a criminal jury is sworn.        See United States v.

Toribio-Lugo, 376 F.3d 33, 37 (1st Cir. 2004).      "That jeopardy

attaches at this early stage, rather than at final judgment, is a

recognition of the defendant's prized right to have his trial,

once under way, completed by a particular trier."   Id.

          Even so, the prophylaxis of the Double Jeopardy Clause

is not absolute.    See Wade v. Hunter, 336 U.S. 684, 688 (1949)

(explaining that double jeopardy protection "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").   When a mistrial occurs, the point at which double

jeopardy principles bar a retrial is not always easy to plot.   The

general rule is that a judge's decision to discharge an empaneled

jury and declare a mistrial prior to verdict does not bar retrial

when, "taking all the circumstances into consideration, there is

a manifest necessity for the act, or the ends of public justice

would otherwise be defeated."   United States v. Perez, 22 U.S. (9

Wheat.) 579, 580 (1824).   Although the determination of whether to


                                - 9 -
discharge the jury and declare a mistrial lies in the "sound

discretion" of the trial court, id., "the prosecutor must shoulder

the burden of justifying the mistrial if he is to avoid the double

jeopardy bar," Arizona v. Washington, 434 U.S. 497, 505 (1978).

Specifically,    "[t]he   prosecutor       must   demonstrate       'manifest

necessity' for any mistrial declared over the objection of the

defendant."   Id.

          The   Supreme   Court    has    cautioned   that    the    manifest

necessity standard cannot "be applied mechanically or without

attention to the particular problem confronting the trial judge."

Id. at 506.     So, too, the Court has warned "that the key word

'necessity' cannot be interpreted literally."           Id.     After all,

"there are degrees of necessity," and the Court's jurisprudence

"require[s] a 'high degree' [of necessity] before concluding that

a mistrial is appropriate."       Id.    Thus, "[a] trial judge properly

exercises his discretion to declare a mistrial if an impartial

verdict cannot be reached, or if a verdict of conviction could be

reached but would have to be reversed on appeal due to an obvious

procedural error in the trial."         Illinois v. Somerville, 410 U.S.

458, 464 (1973).

III. ANALYSIS

          Against this backdrop, we turn to the case at hand.              We

review the district court's allowance of a motion to dismiss on

double jeopardy grounds, following the declaration of a mistrial,


                                  - 10 -
for abuse of discretion. See Toribio-Lugo, 376 F.3d at 38. Within

this rubric, we accept the district court's factual findings unless

those findings are clearly erroneous.                  See id. (citing United

States    v.     Bradshaw,       281   F.3d   278,    291    (1st    Cir.    2002)).

"Articulations of law engender de novo review." Id. (citing United

States v. Keene, 287 F.3d 229, 233 (1st Cir. 2002)).                 And we remain

mindful that "an error of law is always tantamount to an abuse of

discretion."        Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336

(1st Cir. 2008).

               Re-examining its earlier decision to declare a mistrial,

the court below concluded that

               [w]ere the issue to turn solely on the
               operation of Rule 23, it would be difficult to
               imagine a necessity more manifest: the Rule
               plainly dictates that in circumstances like
               these, a trial cannot proceed with less than
               twelve jurors without the consent of all
               parties, and that includes the government.

Ackerly, 323 F. Supp. 3d at 201 (emphasis in original).                     But, the

court explained, "the issue is more complex than a strictly rule-

based analysis would suggest. While [Rule 23] may excuse the trial

judge    for    declaring    a    mistrial    (at    least   where   there    is   no

practical      or   feasible      alternative),      the    [manifest   necessity]

doctrine also implicates the decision-making of the government."

Id.     Analogizing to the Supreme Court's pronouncement that "the

prosecutor must shoulder the burden of . . . demonstrat[ing]

'manifest necessity' for any mistrial declared over the objection


                                        - 11 -
of the defendant," id. at 202 (quoting Washington, 434 U.S. at

505), the district court ruled that when "the prosecutor plays a

prominent role in bringing about the necessity of a mistrial, the

'manifest      necessity'   standard     applies     to    the   government's

decision-making with the same force as it does to the actions taken

by the trial judge," id.

              On this understanding, the district court framed the

dispositive question as: "Can the government, in the circumstances

of this case, point to a 'manifest necessity' for the withholding

of its consent to a verdict by a jury of eleven one day before a

month-long trial was coming to an end?"             Id.    Answering its own

question in the negative, the court granted the joint motion of

Garske, Gottcent, and Sedlak for dismissal of the charges against

them.    See id. at 203.

              The district court's focus on the manifest necessity of

the government's decisionmaking is novel and, in our view, rests

on a misreading of Washington.        We do not gainsay that in order to

retry a defendant after a mistrial, the government must carry the

burden   of    showing   "'manifest    necessity'    for   [the]   mistrial."

Washington, 434 U.S. at 505.           But this burden is not — as the

district court suggests — a burden to show manifest necessity for

the government's decisionmaking.         Instead, it is a burden to show

manifest necessity for the district court's decision to declare a

mistrial.     See id. at 514 (explaining that "reviewing courts have


                                  - 12 -
an obligation to satisfy themselves that . . . the trial judge

exercised 'sound discretion' in declaring a mistrial" (quoting

Perez, 22 U.S. at 580)); Toribio-Lugo, 376 F.3d at 39 (suggesting

that the manifest necessity "inquiry inevitably reduces to whether

the district judge's declaration of a mistrial was reasonably

necessary under all the circumstances" (quoting Keene, 287 F.3d at

234)); see also Perez, 22 U.S. at 580 (stating that there must be

"manifest necessity for the act" of declaring a mistrial (emphasis

supplied)).

          Washington illustrates this point.        There, the trial

judge granted the government's motion for a mistrial due to

prejudicial comments in defense counsel's opening statement.      See

434 U.S. at 498, 501.   The Supreme Court trained the lens of its

inquiry on whether the judge "act[ed] precipitately in response to

the prosecutor's request for a mistrial," not on the prosecutor's

decision to make such a request.   Id. at 515.    The Court concluded

that, because the judge "exercised 'sound discretion' in handling

the sensitive problem of possible juror bias created by the

improper comment of defense counsel, the mistrial order [was]

supported by the 'high degree' of necessity which is required in

a case of this kind."   Id. at 516.

          The Supreme Court's decision in Somerville is similarly

instructive.   There, the prosecutor moved for a mistrial after

spotting a fatal defect in the indictment.       See 410 U.S. at 459-


                              - 13 -
60.    Concluding that further proceedings under the defective

indictment     would   be    futile,   the    trial   judge   granted   the

prosecutor's motion.        See id. at 460.    The Court determined that

there was manifest necessity for the judge's decision to declare

a mistrial, explaining that "where the declaration of a mistrial

. . . aborts a proceeding that at best would have produced a

verdict that could have been upset at will by one of the parties,

the defendant's interest in proceeding to verdict is outweighed by

the competing and equally legitimate demand for public justice."

Id. at 471.    The Court did not, however, inquire into the reasons

for the government's faulty indictment.

             Although the Somerville Court kept the focus of the

manifest necessity inquiry squarely on the trial judge's actions,

it did not categorically dismiss the relevance of the government's

role in causing a mistrial.        The Court explained that "[a] trial

judge properly exercises his discretion to declare a mistrial" if

"a verdict of conviction could be reached but would have to be

reversed on appeal due to an obvious procedural error."             Id. at

464.   The Court hastened to add that "[i]f an error would make

reversal on appeal a certainty, it would not serve 'the ends of

public justice' to require that the Government proceed with its

proof when, if it succeeded before the jury, it would automatically

be stripped of that success by an appellate court."           Id. (quoting

Perez, 22 U.S. at 580).        Importantly, the Court qualified these


                                   - 14 -
statements by noting that "the declaration of a mistrial on the

basis of a rule or a defective procedure that would lend itself to

prosecutorial manipulation would involve an entirely different

question."       Id. (emphasis supplied).          Nothing in the Court's

discussion, however, suggests that the manifest necessity test

used to determine the propriety of the trial judge's decision to

declare    a     mistrial   is    the   relevant    metric   for    assessing

prosecutorial exploitation of a rule or procedure.

               Washington and Somerville light the path that we must

tread.    There is nothing either in those opinions or elsewhere in

the Supreme Court's double jeopardy jurisprudence that affords any

basis    for    applying    the   manifest   necessity   doctrine    to   the

decisionmaking of the government (as opposed to that of the trial

court).    Such an application would represent a substantial — and

ungrounded — expansion of the manifest necessity doctrine.

               This is not to say that the actions of the government

never factor into the double jeopardy inquiry.               As Somerville

intimates, those actions may have relevance to that inquiry.

Indeed, they may sometimes be of critical import because "the

Double Jeopardy Clause provides a defendant with a shield against

prosecutorial maneuvering designed to provoke a mistrial."            United

States v. McIntosh, 380 F.3d 548, 557 (1st Cir. 2004) (citing

Oregon v. Kennedy, 456 U.S. 667, 674 (1982)); see United States v.

Dinitz, 424 U.S. 600, 611 (1976). Thus, even if manifest necessity


                                    - 15 -
exists for the trial judge's decision to declare a mistrial, a

retrial     may   be   foreclosed    "if     the   prosecutor   purposefully

instigated a mistrial or if he committed misconduct designed to

bring one about."      McIntosh, 380 F.3d at 557.2

            When all is said and done, a defendant whose trial was

terminated prior to verdict can invoke the double jeopardy bar in

one of two situations.       First, if the defendant objected and the

trial judge's decision to declare a mistrial was unsupported by

some manifest necessity, double jeopardy will foreclose a second

trial.    See id. at 553; United States v. Simonetti, 998 F.2d 39,

41 (1st Cir. 1993). Second, if the prosecution either deliberately

instigated the mistrial or engaged in other misconduct causing the

mistrial, double jeopardy will foreclose a second trial.                See

McIntosh, 380 F.3d at 557; Simonetti, 998 F.2d at 42.

            The defendants have a more expansive view of double

jeopardy.     They argue that their constitutional right to proceed


     2 The defendants strive to persuade us that this standard "has
no relevance to this case" because they did not request the
mistrial. We are not convinced. Although Kennedy and Dinitz both
involved defendants who had sought mistrials, see Kennedy, 456
U.S. at 668; Dinitz, 424 U.S. at 601, we see no reason why
prosecutorial misconduct would not similarly activate the double
jeopardy bar when the defendant objected to the mistrial, cf.
McIntosh, 380 F.3d at 552, 557 (analyzing claim that retrial was
barred by prosecutor's actions that "were both improper and
designed to provoke a mistrial" when defendants had objected to
mistrial on the basis of such actions); United States v. Simonetti,
998 F.2d 39, 41-42 (1st Cir. 1993) (considering defendant's
argument that retrial was barred because mistrial declared over
his objection was "caused by governmental misconduct").


                                    - 16 -
with       an   already-empaneled   jury   "takes   precedence"   over   the

government's right to withhold consent to a jury of eleven.

According to the defendants, "neither Patton nor Rule 23(b)(2)(B)

was intended to give the government an automatic right to retry a

defendant before a new jury simply by refusing to consent to fewer

than 12 jurors and thereby compelling a mistrial over a defendant's

objection."       Since "the government was the exclusive agent of the

mistrial," their thesis runs, its reason for withholding consent

to an eleven-member jury must satisfy the manifest necessity

standard.       Referencing several cases in which courts have found no

manifest necessity when a district court chose to declare a

mistrial rather than sever a defendant's case,3 see, e.g., United

States v. Chica, 14 F.3d 1527, 1532-33 (11th Cir. 1994); United

States v. Allen, 984 F.2d 940, 942 (8th Cir. 1993); United States

v. Crotwell, 896 F.2d 437, 440 (10th Cir. 1990); United States v.

Ramirez, 884 F.2d 1524, 1530 (1st Cir. 1989); United States v.

Bridewell, 664 F.2d 1050, 1051 (6th Cir. 1981) (per curiam), the

defendants insist that concerns about judicial economy cannot

satisfy the manifest necessity standard.

                As an initial matter, we disagree with the defendants'

attempt to brand the government as the architect of the mistrial.


       3
       For the sake of completeness, we note that none of the three
defendants who are appellees here moved for a severance at or after
the time when Ackerly refused to consent to proceeding with a jury
of eleven.


                                    - 17 -
Although the government's decision to withhold consent to a jury

of eleven technically precipitated the mistrial, the root cause of

the mistrial was Juror 12's sudden unavailability due to his wife's

medical emergency. Once Juror 12 was excused, the remaining eleven

jurors no longer comprised a constitutional jury, see Patton, 281

U.S. at 312, and the trial was stopped in its tracks.                  It could

proceed only if the strictures of Rule 23(b)(2)(B) were satisfied.

              Of course, the right to a constitutional jury may be

waived. Such a waiver is permitted, though, only with "the consent

of government counsel and the sanction of the court."                  Id.   The

government is under no obligation to consent to a jury of eleven,

and the defendants' entitlement to waive trial by a jury of twelve

does not carry with it an entitlement to override the government's

unwillingness to consent.       Cf. Singer v. United States, 380 U.S.

24, 34-35 (1965) ("The ability to waive a constitutional right

does not ordinarily carry with it the right to insist upon the

opposite of that right.").      Seen in this light, keeping the focus

of the manifest necessity inquiry on the trial judge's decision to

declare   a    mistrial,   rather   than     switching   the   focus    to   the

government's decision to withhold consent to a jury of eleven,

does not impermissibly elevate the government's right to withhold

consent under Rule 23 above the defendants' double jeopardy rights.

              Nor would such a focus impair the defendants' double

jeopardy protections.       Although these protections attach when a


                                    - 18 -
jury is sworn, see Toribio-Lugo, 376 F.3d at 37, "unforeseeable

circumstances that arise during a trial [may make] its completion

impossible,"      Somerville, 410 U.S. at 470 (quoting Wade, 336 U.S.

at 689).     In such an event, "a defendant's valued right to have

his trial completed by a particular tribunal must . . . be

subordinated to the public's interest in fair trials designed to

end in just judgments."      Id. (emphasis omitted) (quoting Wade, 336

U.S. at 689); see Dinitz, 424 U.S. at 609 n.11 (explaining that

"the defendant's interest in going forward before the first jury

[is   not]   a    constitutional    right    comparable   to   the   right   to

counsel").       So it is here:    a circumstance    beyond the control of

the parties and the district court rendered the empaneled jury

unconstitutional.      Although the defendants were entitled to waive

their right to a constitutional jury, they had "no absolute right

to proceed with a jury of less than twelve."              Parker v. United

States, 507 F.2d 587, 589 (8th Cir. 1974); see United States v.

Ruggiero, 846 F.2d 117, 124 (2d Cir. 1988) (concluding that "a

court can grant a mistrial even where the defendant files a motion

to proceed with a jury of eleven").            They needed the consent of

both the government and the district court, and that consent was

not forthcoming.

             We have been unable to find a case directly on point.

But we think that a fair analogy can be drawn to cases in which

courts of appeals have found no double jeopardy bar when a trial


                                    - 19 -
judge refused to allow a case to continue to verdict with a jury

that had shrunk to eleven members.          See Parker, 507 F.2d at 589-

90 (finding that trial judge had discretion to declare mistrial

when one of three defendants refused to consent to jury of eleven);

United States v. Potash, 118 F.2d 54, 56 (2d Cir. 1941) (explaining

that when one juror became incapacitated, "the court had discretion

to discharge the jury, even if both parties had consented . . . to

proceed with the reduced number"); Gardes v. United States, 87 F.

172, 177 (5th Cir. 1898) (finding manifest necessity for mistrial

due to juror's death when trial court declined to allow parties to

proceed with jury of eleven).

            The severance cases on which the defendants rely are

inapposite.    When a mistrial is unavoidable with respect to one

defendant     in   a   partially     completed    two-defendant   trial,

considerations of judicial economy, without more, cannot justify

the trial judge's refusal to sever the other defendant and allow

him to continue separately to a verdict with an already-empaneled

jury.     See, e.g., Chica, 14 F.3d at 1532-33.        Those cases rest

solidly on the proposition that "judicial economy, standing alone,

does not support a finding of manifest necessity." Id. (collecting

cases).     In the last analysis, the court's interest in judicial

economy cannot outweigh a defendant's valued right to continue to

a verdict with an already-empaneled jury.




                                   - 20 -
          Here, however, the finding of manifest necessity does

not rest to any degree on considerations of judicial economy.        The

district court had no viable option to allow Garske, Gottcent, and

Sedlak to proceed with the already-empaneled jury.       Accordingly,

this is not a case in which the district court may be said to have

put its interest in judicial economy above the defendants' valued

right to double jeopardy protections.

          Instead,    the   district    court's   rationale   for    the

declaration of a mistrial was the unavailability of the twelfth

juror (due to circumstances beyond the parties' control).           This

rationale strongly supports a finding of manifest necessity, and

the severance cases do not diminish the strength of that support.

          The short of it is that it was an error of law for the

district court to apply the manifest necessity standard to the

government's decision to withhold consent to a jury of eleven.

The correct approach would have been for the court to have inquired

whether there was manifest necessity for the declaration of a

mistrial and, if so, to inquire whether the government helped to

bring about that manifest necessity through some misconduct or

purposeful instigation.     The record makes the answers to these

inquiries pellucid.

          We start with manifest necessity itself.     In determining

whether there was manifest necessity for a mistrial, it is useful

to consider three interstitial factors:     "(1) whether the district


                               - 21 -
court consulted with counsel; (2) whether the court considered

alternatives to a mistrial; and (3) whether the court adequately

reflected         on   the     circumstances          before    making    a   decision."

McIntosh, 380 F.3d at 554 (citing Simonetti, 998 F.2d at 41).

These factors, though, "serve only as a starting point."                                Id.

"Each case is sui generis and must be assessed on its idiosyncratic

facts."      Id.

              In this instance, it is nose-on-the-face plain that

there was manifest necessity for the district court's declaration

of    a    mistrial:         the    court    was    left   with    a    constitutionally

deficient jury of eleven.                The court tried to avoid a mistrial by

requesting that the parties consent to a jury of eleven.                                Cf.

Toribio-Lugo, 376 F.3d at 39 (finding no manifest necessity when

"[t]he      court      never       offered    the     appellant     a    choice     between

proceeding with eleven jurors or accepting a mistrial").                            Once it

became apparent that universal consent would not be forthcoming,

the       court    explored        the   possibility       of     delaying    the     trial

indefinitely.          But such an alternative was not feasible, the court

reasonably concluded, given the unpredictability of how long Juror

12 would be unavailable and the difficulties inherent in attempting

to supervise the remaining eleven jurors in the interim.                            Seeking

additional ideas, the court solicited the parties — but none of

them offered any helpful suggestions.




                                             - 22 -
              Nor did the court act rashly.           It mulled the mistrial

decision over the course of several days and decided upon a course

of action only after requesting consent from all parties and

seeking   their       input   on   potential    alternatives.         The    court

recognized      that it had no power to force either side to proceed

to verdict with eleven jurors.          As the court aptly observed, its

"[h]ands [were] tied."        Ackerly, 323 F. Supp. 3d at 192.

              "Where, as here, the district court fully considers, but

reasonably rejects, lesser alternatives to a mistrial, we will not

second-guess its determination."          McIntosh, 380 F.3d at 556.              We

thus hold that there was manifest necessity for the district

court's carefully reasoned decision to declare a mistrial.

              This brings us to the matter of whether the government's

decision to withhold its consent to proceeding with a jury of

eleven constituted either misconduct or purposeful instigation of

a mistrial.        On its face, that decision was not misconduct:                 it

was the government's prerogative under Rule 23 to decline to

consent to a jury of less than twelve.                    See Fed. R. Crim. P.

23(b)(2). The slightly closer question is whether the government's

decision to withhold its consent, knowing that a mistrial would

ensue, was the functional equivalent of purposeful instigation of

a mistrial.        We think not.

              In conducting this inquiry, intent is a central element.

Even   when    a    prosecutor's   conduct     is   the    but-for   cause   of    a


                                     - 23 -
mistrial, such conduct — including that which "might be viewed as

. . . overreaching" — does "not bar retrial absent intent on the

part of the prosecutor to subvert the protections afforded by the

Double   Jeopardy    Clause."      Kennedy,   456    U.S.   at   675-76;   see

McIntosh, 380 F.3d at 557 (explaining that "prosecutorial error or

even prosecutorial harassment that results in a mistrial will not

unlatch the double jeopardy bar in the absence of the intent to

cause a mistrial" (citing Creighton v. Hall, 310 F.3d 221, 227

(1st Cir. 2002))).       It follows that the government's knowledge

that withholding consent to move forward with a jury of eleven

would cause a mistrial is not enough to bar a retrial absent an

intent to abridge the defendants' double jeopardy rights.              Here,

we discern no indication of any such intent.

             To begin, the removal of Juror 12 was brought about by

his wife's sudden illness, not by any act attributable to the

government    or    within   its   control.     As    the   district   court

acknowledged, "it is unfair to say that [the government] caused

the mistrial any more than [it is to say] that Defendant Ackerly

forced the mistrial, as both were exercising a right granted to

them by Rule 23."      Ackerly, 323 F. Supp. 3d at 194 (citation and

internal quotation marks omitted).          Moreover, the district court

made explicit findings that "the government's conduct [was] not

infected with any hint of improper motive," id., and that the

government had done "nothing reproachable or in bad faith," id. at


                                   - 24 -
203.   To cinch the matter, the court found that this was not a

case in which the government "refused consent to go forward with

eleven jurors because it was not sanguine about its chances of

winning a conviction."       Id. at 194.

          We    think   it     important    that,     in    evaluating      the

government's preference to try all four defendants together, the

district court found only that "the government's decision to

withhold consent was influenced by a desire to submit all four

defendants to the jury for a verdict."        Id. at 202.       Merely being

"influenced" by such a legitimate desire does not evince an intent

to instigate a mistrial, particularly where, as here, the district

court has made no finding that the number of jurors was irrelevant

to the government's decision.          In short, this is not a case in

which the record indicates either that the government's exclusive

motivation in withholding consent was to evade severance (a goal

Rule 23(b)(2)(B) does not serve) or that the government had no

bona fide interest in asserting its right to a jury of twelve (the

interest underlying Rule 23(b)(2)(B)).

          The   district     court's   findings     are    supported   by   the

record and, thus, are not clearly erroneous.          Cf. United States v.

Flete-Garcia, 925 F.3d 17, 26 (1st Cir. 2019) (stating that "[i]f

two plausible but competing inferences may be drawn from particular

facts, a [district] court's choice between those two competing




                                  - 25 -
inferences cannot be clearly erroneous").            Consequently, we are

bound to accept them.      See Simonetti, 998 F.2d at 42.

           The defendants have a fallback position:            they contend

that the government took "unfair advantage of a mistrial" by

withholding consent to proceed with eleven jurors after having

"enjoyed a full view of [the defendants'] defenses."               Such an

advantage was evidenced at Ackerly's retrial, the defendants say,

since "the government demonstrated that it had learned from its

lapses in the first trial" by not calling several witnesses whose

credibility had been undercut on cross-examination.

           This contention is composed of more cry than wool.             As

the   government   accurately   explained,     the    district   court   had

allotted twenty hours of trial time per side in the original trial

but reduced that amount to eleven hours per side for Ackerly's

retrial.   As a result, the government had "to cut almost half of

its previous trial presentation."         It is pure speculation to

suggest that the government's use of this reduced time was unfairly

advantaged by the earlier trial proceedings.            We say "unfairly"

because any time that a mistrial occurs near the end of a case,

each side will have had a preview of the other's case.             In other

words,   the   purported   advantage   works   both    ways.     Here,   for

instance, the defendants have previewed the government's case and

are now better positioned to defend against it.




                                 - 26 -
                 To sum up, the right to trial by a jury of twelve is a

right that is shared by the government and the defense.                       The

government was entitled under Rule 23 to withhold its consent to

an eleven-person jury and made a fully permissible election.                   As

the district court acknowledged, "Rule 23 permits the government

to exercise its right to withhold consent without requiring any

explanation         or   justification   of    its   reasons   for   doing    so."

Ackerly, 323 F. Supp. 3d at 194.          Here, though, the government was

not shy about its reasons:          the government's exercise of its right

to withhold consent under Rule 23(b)(2)(B) was entirely consistent

with       its   long-held   and   staunchly    asserted   position    that   the

interests of justice would best be served by trying all the

defendants together.4          The government had no role in causing the

unavailability of the twelfth juror, and we do not think that it

should be given the Hobson's choice of trying three of the indicted

coconspirators apart from the fourth with a jury of eleven or not

at all.          When — as in this case — the government's reasons for


       4
       Even while this appeal was pending, the government persisted
in trying to keep the four defendants together. To that end, it
moved under 18 U.S.C. § 3161(h)(7)(A) to exclude from Ackerly's
speedy trial calculations the time that would elapse until the
appeal was resolved. Ackerly opposed the motion and the district
court denied it, scheduling Ackerly's trial to begin on January 7,
2019. The government twice moved for reconsideration, repeatedly
imploring the district court to delay Ackerly's trial and preserve
the possibility of trying all four defendants together. The court
denied both motions and went ahead with Ackerly's case. Ackerly
was convicted on January 15, 2019, following a week-long jury
trial.


                                      - 27 -
withholding its consent under Rule 23(b)(2)(B) are completely

above-board, double jeopardy principles should not prevent the

government from retrying the defendants.   Elsewise, "the ends of

public justice would . . . be defeated."   Perez, 22 U.S. at 580.

          To say more would be to paint the lily.     Because the

district court's decision to declare a mistrial rested on manifest

necessity and because that mistrial was not the product of any

purposeful instigation or other government misconduct, double

jeopardy principles do not prohibit the government from retrying

Garske, Gottcent, and Sedlak.

IV. CONCLUSION

          We need go no further. For the reasons elucidated above,

we reverse the order dismissing the indictment as to Garske,

Gottcent, and Sedlak and remand for further proceedings consistent

with this opinion.



Reversed and remanded.




                                - 28 -
