                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JAN 11, 2008
                               No. 07-13447                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 06-20257-CR-SH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ANTHONY FELTON,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (January 11, 2008)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Anthony Felton appeals the district court’s order denying his motion to
dismiss the indictment under the Double Jeopardy Clause of the Fifth Amendment.

Felton claims that the district court erred in denying the motion to dismiss for two

reasons. First, Felton argues that there was no manifest necessity to declare a

mistrial and thus, the district court should have given the jury an Allen 1 charge to

continue deliberations. Second, he asserts that the district court failed to provide

counsel an opportunity to comment, object, or suggest alternatives before declaring

the mistrial, pursuant to Federal Rule of Criminal Procedure 26.3.

        The government concedes that the district court erred in finding that

manifest necessity justified its order of a mistrial. It agrees that the jury’s note did

not demonstrate that the jury was deadlocked and that the district court failed to

establish a record of the state of the jury’s deliberations. The government also

concedes that the district court neither read the Allen charge nor followed the

proscriptions of Rule 26.3 before declaring a mistrial. After careful review of the

record and the parties’ briefs, we find that the district court erred in denying

Felton’s motion to dismiss the indictment on double jeopardy grounds.

Accordingly, we reverse.

                                       I. BACKGROUND



        1
          Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896) (finding no
error in the trial court’s instructions, given during deliberations, that the jury fulfill its sworn
duty to conscientiously decide the case and work towards a unanimous verdict).

                                                   2
      A federal grand jury indicted Felton for being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1),

after officers apprehended him in connection with a reported burglary and

allegedly discovered a Commando Mark 45 semi-automatic rifle and ammunition

in his possession. Felton entered a plea of not guilty, and the trial began on

December 6, 2006. The jury began its deliberations at 4:17 p.m. on Friday,

December 8, 2006.

      During its deliberations, the jury submitted a note to the court asking, “May

we consider constructive posses[sion] even though the prosecution’s testim[ony]

claims that the defendant had actual possession?” Brief for United States at App.

A. The district court replied, “It is not sufficient to find that the Defendant was in

the vicinity of the gun in order to satisfy constructive possession. In order to find

constructive posse[ssion,] you must still find that the Defendant knowingly and

intentionally possessed the gun, exerting control over it.” Id. The jury submitted a

second note stating, “We have not come to a unanimous decision. What should we

do?” Id. At this point, the court summoned counsel from both sides, and the

following discussion ensued:

      THE COURT: Let me hear from counsel. You’ve seen the question.

      [GOVERNMENT]: I think the appropriate course would be to send the jury
      home and have them come back on Monday to resume deliberations or to

                                           3
       give them alternatively, the option to continue to deliberate. But I believe
       probably most everyone in the room would prefer that they come back on
       Monday.

       [DEFENSE]: It sounded like from the first question, Judge, that they were
       pretty close, so I don’t know. I would like to see them finish up if they think
       they can in a short period of time, but if not – if they are close. If not,
       Monday.

       THE COURT: Well, my problem is that I will not be available Monday. . . .
       As a matter of fact, I have surgery scheduled for Monday morning.

       [DEFENSE]: Then let’s give them some more time, Judge, if they want it.
       Because they said they haven’t reached a decision. What should we do? I
       mean, do they need more time?

R3 at 3–4. The court and counsel then briefly discussed the defendant’s bond

status. At approximately 7:00 p.m., the court asked to see counsel in chambers.

       At 7:08 p.m., the court assembled the jury and stated:

       I received the jury’s message. You have tried, in my opinion, valiantly to
       reach a consensus. I regret that you were unable to do so.
       As I indicated to you, this means we’ll have to try this case all over again. . .
       . Unfortunately, we require unanimous verdicts one way or the other. I don’t
       know what your problem was, but it is painful. I’m going to excuse you
       from further service during this term.

R3 at 5–6. After excusing the jury, the court continued, “[a]s I said, I want the

state notified. . . . Tell them they can feel free to proceed. Otherwise, I’m setting it

for sometime early in – hopefully later this month. . . . I’ll declare a mistrial.” Id.

at 6. Neither Felton nor the government objected to the district court’s declaration

of a mistrial.

                                            4
       Felton subsequently moved to dismiss the indictment and bar retrial on

double jeopardy grounds, arguing that the district court erred in declaring a mistrial

in the absence of manifest necessity and without first providing counsel with an

opportunity to comment, object, or suggest alternatives, pursuant to Federal Rule

of Criminal Procedure 26.3. The government contested Felton’s motion, claiming

that the second jury note indicated that the jury was deadlocked. The government

further maintained that the district court provided counsel with an opportunity to

object to an order of mistrial during the in-chambers discussion, and that the

district court’s error under Rule 26.3, if any, was harmless. In his reply brief,

Felton disputed the government’s factual and legal claims and submitted affidavits

from two defense counsel present during the in-chambers meeting, denying any

discussion of mistrial.2 The district court summarily denied Felton’s motion to

dismiss without discussion. This appeal ensued, and the district court stayed

further proceedings pending the outcome of this appeal.



       2
          There is no transcript of the chambers discussion. In its Response to Defendant’s
Motion to Dismiss the Indictment under the Double Jeopardy Clause, the Government claimed
that “[a]fter conferring with counsel, the Court indicated in chambers its intent to declare a
mistrial.” Docket Entry (“DE”) 47 at 2. The defendant disputes this and submitted two
affidavits from defense counsel who were present at the discussion, both averring that, “[t]he
Court did not state at any point in chambers provide the parties with an opportunity to comment
on or object to a mistrial. . . . In fact, to the best of my recollection, the word mistrial was never
spoken by anyone in chambers.” DE 48, Exh. 1 and 2. Defense counsel aver that they discussed
with the court “various issues regarding the case, including, but not limited to, the credibility of
witnesses, the jury’s deliberations, and the custody status of Mr. Felton.” Id.

                                                  5
               II. JURISDICTION AND STANDARD OF REVIEW

      The district court’s denial of a motion to dismiss the indictment on double

jeopardy grounds is an appealable final decision over which we have interlocutory

jurisdiction pursuant to 28 U.S.C. § 1291. Abney v. United States, 431 U.S. 651,

662, 97 S. Ct. 2034, 2042, 52 L. Ed. 2d 651 (1977); United States v. Benefield, 874

F.2d 1503, 1505 (11th Cir. 1989). We review de novo the district court’s denial of

a motion to dismiss an indictment on double jeopardy grounds. United States v.

Rivera, 77 F.3d 1348, 1350 (11th Cir. 1996) (per curiam). We review the trial

court’s declaration of a mistrial on the grounds of manifest necessity for abuse of

discretion. See Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 832, 54

L. Ed. 2d 717 (1978).

                                 III. DISCUSSION

      The Double Jeopardy Clause of the Fifth Amendment protects a criminal

defendant from being subjected to repeated prosecutions or cumulative

punishments for the same offense. U.S. Const. amend. V. Jeopardy attaches once

the jury is empaneled and sworn. United States v. Chica, 14 F.3d 1527, 1531 (11th

Cir. 1994) (quotation marks omitted) (quoting Crist v. Bretz, 437 U.S. 28, 35, 98 S.

Ct. 2156, 2161, 57 L. Ed. 2d 24 (1978)). Once jeopardy attaches, the defendant

has a constitutional right to have the case decided by that jury, except under limited



                                          6
circumstances. Id. Nevertheless, “[t]he Fifth Amendment prohibition against

double jeopardy has never been thought to mean that the court cannot conduct a

second trial when the first jury is unable to reach a unanimous verdict.” United

States v. Gordy, 526 F.2d 631, 635 (5th Cir. 1976).3 Consequently, 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.’” United States v. Berroa, 374 F.3d 1053, 1057 (11th Cir. 2004)

(quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837, 93 L. Ed. 974

(1949)). It has long been established that the court has “the authority to discharge

the jury from giving any verdict, whenever, in [its] opinion, 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, 6 L. Ed. 165 (1824).

       The doctrine of manifest necessity “is incompatible with a mechanical

application of rules and exceptions.” Gordy, 526 F.2d at 635; see also

Washington, 434 U.S. at 506, 98 S. Ct. at 830–31. Because manifest necessity is

based on the particular circumstances facing the trial court, we accord varying



       3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.

                                                7
degrees of deference to the court’s determination. Berroa, 374 F.3d at 1056–57.

Nevertheless, there must be a high degree of necessity to support the conclusion

that a mistrial is appropriate. Washington, 434 U.S. at 506, 98 S. Ct. at 831.

Where, as here, the district court’s finding of manifest necessity stems from the

jury’s genuine inability to reach a verdict, “a reviewing court must examine the

circumstances surrounding the discharge to determine if the trial court exercised its

limited discretion to abort the proceedings in a manner consistent with the

protection of the defendant’s Fifth Amendment rights.” Gordy, 526 F.2d at 635.

The trial court’s determination of manifest necessity premised upon a deadlocked

jury is generally accorded great deference. Berroa, 374 F.3d at 1057.

      We consider several pertinent factors in determining whether manifest

necessity exists: “the length of the trial, the complexity of the issues involved and

the length of the deliberations. In addition, the trial judge’s communications with

the jurors are particularly significant.” Gordy, 526 F.2d at 635–36. While “a

statement from the jury that it is hopelessly deadlocked is a crucial factor, . . . a

present inability to agree is not determinative of the question of whether future

deliberations might prove helpful.” Id. at 636.

      Additionally, “we must determine the impact of the district court’s violation

of Rule 26.3 in connection with the order of mistrial.” Berroa, 374 F.3d at 1056.



                                            8
Rule 26.3 instructs that “[b]efore ordering a mistrial, the court must give each

defendant and the government an opportunity to comment on the propriety of the

order, to state whether that party consents or objects, and to suggest alternatives.”

Fed. R. Crim. P. 26.3. The district court’s “failure to comply with that mandate

necessarily creates a strong suggestion that a trial judge did not exercise sound

discretion.” Berroa, 374 F.3d at 1058.

      Here, the jury began deliberations at 4:17 p.m. on a Friday afternoon after a

three day trial. The first note from the jury indicated its difficulty in applying the

evidence presented to the legal elements of constructive possession. The second

note, submitted shortly before 7:00 p.m., indicated that the jury had not yet reached

a unanimous decision, but it did not state that it was hopelessly deadlocked. The

jury had been deliberating for less than three hours before asking the court, “[w]hat

should we do?” The judge did not communicate with the jury or foreperson to

determine the concerns underlying its inquiry or if further deliberations might yield

a verdict. Moreover, the court did not give an Allen charge to encourage the jury to

reach a unanimous verdict. The facts do not show that the jury was genuinely

deadlocked. Rather, the totality of the circumstances strongly suggest that the jury

wanted to retire, rather than stay late on a Friday evening in deliberations.

Counsel’s discussion with the court after the jury’s second note further supports



                                            9
this conclusion.

       The district court also denied the parties an opportunity to be heard before

declaring a mistrial. The district court’s failure to comply with Rule 26.3 further

undermines its finding of manifest necessity. The record shows that the judge was

eager to close the case that evening, rather than continue deliberations on Monday,

because of a scheduled surgery. Yet, we have held that the “determination of

manifest necessity for a mistrial depends upon the state of the jury rather than the

state of the judge.” Gordy, 526 F.2d at 632. We accord no deference to the district

court’s determination of manifest necessity because the record, taken as a whole,

reveals that the court acted for reasons completely unrelated to the purported basis

for the mistrial ruling—a genuinely deadlocked jury. See Berroa, 374 F.3d at

1057. For these reasons, we find that there was no manifest necessity to compel

the district court’s order of a mistrial.

                                  IV. CONCLUSION

       We hold that the retrial of Felton is barred by the Double Jeopardy Clause of

the Fifth Amendment. The district court abused its discretion in determining that

there was manifest necessity to declare a mistrial, and therefore erred in denying

Felton’s motion to dismiss the indictment. Accordingly, we REVERSE the district

court’s July 10, 2007 order, and we REMAND for further proceedings consistent



                                            10
with this opinion.

      REVERSED AND REMANDED.




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