                             United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT




                                     ___________

                                     No. 97-1237
                                     ___________

United States of America,        *
                                        *
        Plaintiff - Appellee, *
                                        *   Appeal from the United States
        v.                              *   District Court for the District
                                        *   of Minnesota
Michael Dean Melius,             *
                                        *
        Defendant - Appellant.          *

                                     __________

                        Submitted: June 10, 1997

                              Filed: September 9, 1997
                                   __________

Before LOKEN and ROSS, Circuit Judges, and FENNER,1 District                Judge.
                                __________

FENNER, District Judge.


        After the declaration of a mistrial without his consent, Michael Dean
Melius (“Melius”) filed a motion to dismiss the indictment against him on
double jeopardy grounds.       Melius now appeals the order of the district
        2
court       which denied his motion to dismiss.           Because we hold that the
district court exercised sound




        1
      The Honorable Gary A. Fenner, United States District Judge
for the Western District of Missouri, sitting by designation.
        2
       The Honorable James M. Rosenbaum, United States District
Judge for District of Minnesota, Fifth Division.
discretion in determining that the mistrial was based upon “manifest
necessity,” we affirm the district court’s order.


                                           I.


        On November 13 and 14, 1996, Melius was tried in Duluth, Minnesota,
on a two-count superseding indictment charging him with possession with
intent    to    distribute    methamphetamine    in   violation    of   21     U.S.C.   §§
841(a)(1), 841(b)(1)(B), relating to events on March 21, 1996 and May 22,
1996.     Late in the day on Thursday, November 14, 1996, the case was
submitted to the jury.        At that time Judge Rosenbaum, who had conducted the
trial, left Duluth for Minneapolis, Minnesota.          Arrangements were made for
the verdict to be handled by the Honorable Gerald W. Heaney.


        On the morning of Friday, November 15, 1996, it came to the              court’s
attention that a woman had contacted a group of jurors the previous evening
in an attempt to discuss the trial with them.          Deliberations were suspended
and Judge Rosenbaum held a hearing on Monday, November 18, 1996.                    Upon
questioning the entire jury, jurors Napper, Melde, and Hermanson indicated
that they were parties to the extraneous conversation.            The three contacted
jurors    and    a   fourth   juror,    foreperson    Miller,   were    each    examined
individually about the incident in chambers.


        Each of the contacted jurors testified that after they had been
excused from deliberations for the day on November 14, 1996, they went to
a bar in the Radisson Hotel.           The jurors first hesitated in entering the
bar because they recognized a group of people there as being present in the
courtroom during the trial.        Ultimately, the jurors entered but decided to
sit at the bar’s far end away from the group which they recognized.
Shortly thereafter a woman from the group approached the three jurors and
asked them if the jury had reached a verdict, to which one of the jurors




                                            2
responded that they had not.   The woman then asked the three whether they
wanted to know why she had not testified during the trial.        One of the
jurors told the woman that they could not discuss the matter with her and
the contact ended.   The woman and her group then left the bar.    While the
jurors recognized the woman as being present during the trial, they were
not sure who she was or why she had been present in the courtroom.
Foreperson Miller then joined the other three jurors at the bar and was
told about the contact with the woman.    After discussing the matter, the
jurors decided that they would have to report the incident to the judge.


       According to the interrogated jurors, the other eight jurors were
aware that a note had been written to the court and that several jurors had
been approached the night before although it is unclear from the record how
the other jurors acquired this information.       After the voir dire, the
district court noted that all of the jurors “were aware that a note was
sent by someone other than the foreperson, and at least in outline must
know the nature of the communication.”   The four jurors who were questioned
individually all stated that their deliberations would not be affected by
the incident and that each believed he or she could be impartial.


       After questioning the four jurors, the district court asked counsel
for their positions on whether a mistrial was necessary.    Defense counsel
stated that he did not think that there were grounds for a mistrial and
that   it   was his position that the jury should continue with their
deliberations.   The government expressed concern that the woman’s comments
bolstered the position of the defense as set forth in its closing argument,
stating

       I’m . . . concerned in light of the allegations made during
       closing argument, to the effect that government witnesses had
       lied or had forgotten things or were hiding




                                     3
     evidence, and allegations that were made against the prosecutor
     in this case to that effect, that the mere fact that a witness
     walks up or an individual walks up to a group of jurors to
     explain why she didn’t testify tends to throw the jurors into
     a state of confusion, at a minimum, regarding how to assess the
     viability of the defense position in this case. And therefore
     I am concerned, as I indicated on Friday, not only with the
     fact of the cont[act], but with the mere few words that were
     spoken, but because I think they go to the heart of the defense
     in this case.

The government also stated that it was unsure how a jury would react to the
extraneous information, whether there would be a knee-jerk reaction to
accept the proposition of the defense set forth in its closing argument or
whether the reaction would be to reject the defense’s theory.   Regardless,
the government contended that the prospect of a tainted juror was “highly
probable.”   Following these statements by the parties, the court asked
counsel if anything further should be said to the jury.   At the time that
the court made the inquiry, neither party had moved for a mistrial.
Defense counsel responded to the inquiry by stating that it did not believe
that any further statements were necessary.       The government took no
position.


     After a short recess the district court announced that it was
ordering a mistrial on the basis that the woman’s contact with the three
jurors, together with the interruption of deliberations and questioning of
jurors by the court, tainted the jury.     The district court also made a
finding that there was “manifest necessity” to declare the mistrial.


     In my view the interests of justice were clear.          It is
     impossible for me to imagine that there could not have been
     some question raised as to whether or not the comings and
     goings of jurors, the fact that what could have been perceived
     as some kind of a rump group wrote a note or felt compelled to
     write a note, to be interviewed by the Court, the fact that the
     Court obviously interrupted their deliberations. Under those




                                    4
        circumstances, it is impossible for me to believe that the
        defendant might not one day have been of a mind that maybe
        something happened with the jury in a fashion which would have
        made it difficult for him to be confident in the jury’s
        verdict, and the Court would have to be questionable, or it
        would have to question the jury’s verdict.        Under those
        circumstances there was a manifest necessity.


        Subsequently, a date for the second trial was scheduled.   Melius then
moved to dismiss the indictment against him on double jeopardy grounds.
The government’s response included the affidavit of assistant United States
attorney, Mark D. Larsen, which discussed information which the Federal
Bureau of Investigation acquired in connection with a jury tampering
investigation which commenced after the mistrial was declared.            The
affidavit focused on Nicole Wasson, the girlfriend of Melius who contacted
the three jurors.     The implication of the affidavit and the allegations
which the government makes in its brief relating to the investigation,
suggest that Nicole Wasson’s meeting with the three jurors was not a chance
happening but occurred as a result of a planned effort to influence the
jury.    Although the affidavit states nothing about any complicity on the
part of Melius to tamper with the jury, the government’s brief states
“there still remains a ‘distinct possibility’ that the defendant engaged
in misconduct to avoid a guilty verdict.”


        On December 27, 1996, the district court heard argument on the motion
to dismiss, during which the defense unsuccessfully attempted to strike the
prosecutor’s declaration.       The district court acknowledged that the
material was not taken into consideration by the court in declaring the
mistrial, but permitted its addition “for the purposes of fleshing out the
record.”     At the end of the hearing the district court took the matter
under advisement.    On January 13, 1997, the district court summarily denied
Melius’ motion to dismiss.




                                       5
                                     II.


      The Fifth Amendment provides that “[n]o person shall . . . be subject
for the same offence to be twice put in jeopardy of life or limb.”            U.S.
CONST. amend. V.   The protection afforded by the Fifth Amendment against
being subject to double jeopardy is a “valued right,” Washington v.
Arizona, 434 U.S. 497, 503 (1978), which is “‘fundamental to the American
scheme of justice.’” Benton v. Maryland, 395 U.S. 784, 795 (1969)(quoting
Duncan v. Louisiana, 391 U.S. 145, 149 (1968).       Constitutional protection
is afforded against double jeopardy to prevent the State, with all its
resources and power from making repeated attempts to convict an individual
for an alleged offense, “thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent
he may be found guilty.”     Green v. United States, 355 U.S. 184, 187-88
(1957); see also Washington, 434 U.S. at 503-05.


      The Fifth Amendment’s protection against double jeopardy attaches
when the jury is empaneled and sworn, Crist v. Bretz, 437 U.S. 28, 35
(1978), however, unlike the case where the trial has ended in acquittal,
retrial is not always barred by the Fifth Amendment when the trial has
terminated without a verdict.     Washington, 434 U.S. at 505.      If the rule
was   otherwise,   it   “would   create    an   insuperable   obstacle   to   the
administration of justice in many cases in which there is no semblance of
the type of oppressive practices at which the double-jeopardy prohibition
is aimed.”   Wade v. Hunter, 336 U.S. 684, 688-89 (1949).       Consequently, a
defendant’s valued right not to be subject to double jeopardy “‘must in
some instances be subordinated to the public’s interest in fair trials
designed to end in just judgments.’”      United States v. Jorn, 400 U.S. 470,
480 (1971)(quoting Wade, 336 U.S. at 689).




                                       6
Although the Supreme Court has refused to establish specific guidelines for
weighing these competing interests, retrial has long been permitted where
“taking all the circumstances into consideration, there is a manifest
necessity for the act [of mistrial].”3 United States v. Perez, 22 U.S.(9
Wheat.) 579, 580 (1824).


        The United States Supreme Court has recognized that there are varying
degrees of necessity and a “high degree” of necessity must exist before a
mistrial is appropriate.        Washington, 434 U.S. at 506.   However, whether
a high degree of necessity exists depends on the circumstances of each
case.       Id. at 508.   At one end of the spectrum, strict scrutiny is
appropriate when the basis for the mistrial is the unavailability of
government evidence or when there has been government misconduct.      Id.    At
the other extreme is the case where the jury is unable to reach a verdict,
a situation in which it has long been the rule that a mistrial is
appropriate.      Id. at 509.    In that situation, the trial judge has broad
discretion in determining whether or not manifest necessity exists.          Id.
“Because possible juror bias falls nearer to the deadlocked jury end of the
spectrum of the trial problems which may warrant a mistrial, the district
court’s decision to declare a mistrial on that ground is entitled to ‘great
deference.’”      Dixon, 913 F.2d at 1311 (citing Washington, 434 U.S. at 512-
14).        The deference granted to a district court in determining that
“manifest necessity” exists for a mistrial is justified because the trial




        3
       We note that a trial court need not find “manifest
necessity” if the defendant requests or consents to the mistrial.
See Oregon v. Kennedy, 456 U.S. 667, 672 (1982)(recognizing that
“manifest necessity” standard has no place in application of
Double Jeopardy Clause where defendant has elected to terminate
the proceedings against him); see also United States v. Dixon,
913 F.2d 1305, 1310 n.2 (8th Cir. 1990)(noting that “‘manifest
necessity’ test does not apply when the defendant has requested
or consented to a mistrial”).

                                         7
judge is in a much better position than is an appellate court to evaluate
the significance of possible juror bias.                 Washington, 434 U.S. at 513.
Consistent with this deference, we must satisfy ourselves the district
court’s decision that manifest necessity existed for the mistrial was an
exercise of its “sound discretion.”              Washington, 434 U.S. at 514; Dixon,
913 F.2d at 1311.


        While the trial court’s decision is entitled to much deference in
cases    involving    possible     juror   bias,     its    determination     of   manifest
necessity is not beyond review.            The trial court is obligated to use its
power to order a mistrial with the “greatest caution.” Jorn, 400 U.S. at
481.    The trial judge “must always temper the decision whether or not to
abort the trial by considering the importance to the defendant of being
able, once and for all, to conclude his confrontation with society through
the verdict of a tribunal he might believe to be favorably disposed to his
fate.’”     Id. at 486.      “If the record reveals that the trial judge has
failed to exercise the ‘sound discretion’ entrusted to him, the reason for
such deference by an appellate court disappears.”               Washington, 434 U.S. at
510 n.28.   Therefore, in reviewing the district court’s decision, we seek
assurance    that    “the   district   court,       in    declaring    a   mistrial,    acted
‘responsibly and deliberately, and accorded careful consideration to [the
defendants’]    interest     in    having     the    trial     concluded     in    a   single
proceeding.’”       Dixon, 913 F.2d at 1311 (quoting Washington, 434 U.S. at
516).     Consultation      with   counsel,      consideration        of   alternatives    to
mistrial, and the amount of time dedicated to the mistrial decision are
indicative of whether the trial court acted responsibly and deliberately.
See Dixon, 913 F.2d at 1311 (recognizing that “consultation with counsel
and    consideration of available alternatives are consistent with the
exercise of sound discretion”); see also Brady v. Samaha, 667 F.2d 224, 229
(1st Cir.




                                             8
1981)(“A precipitate [sic] decision, reflected by a rapid sequence of
events culminating in a declaration of a mistrial, would tend to indicate
insufficient concern for the defendant’s constitutional protection.”).
Similarly, if a trial judge acts “irrationally or irresponsibly, his action
cannot be condoned.”        Washington, 434 U.S. at 514 (citations omitted).



                                          III.


      As     a    preliminary   matter,   Melius   contends   that   the   information
acquired by the government during its jury tampering investigation which
was submitted to the district court in consideration of his motion to
dismiss should not be considered as part of the record           because it was not
before the district court when it declared the mistrial and therefore could
not have been a basis upon which the district court declared the mistrial.
The government argues that by filing his motion to dismiss, “defendant
created the possibility that new information would be made part of the
record.”     In the case at bar the government merely speculates that Melius
may   have       been implicated in Ms. Wasson approaching the jury.               The
government does not present sufficient evidence to support its argument and
accordingly we do not consider that Melius was somehow involved in Ms.
Wasson’s actions.


      Our review of the record in this case reveals that the district court
exercised sound discretion in determining that manifest necessity existed
for the mistrial.         Based upon the record we cannot conclude that the
district court acted precipitately or hastily in declaring the mistrial.
On the contrary, the district court founded its ruling upon a careful
examination of four jurors, an opportunity for the parties to be heard, and
careful consideration of the issue before the court.                 The record amply
demonstrates that the district judge exercised his discretion only after
informing himself of the relevant factors and taking adequate




                                            9
time to reach his decision that the mistrial was based upon manifest
necessity.


     At the heart of the district court’s decision was the concern that
any verdict which the jury might have reached would have been tainted by
the contact in the bar and the circumstances surrounding the interruption
in the jury’s deliberations.4     We remind ourselves that the extent of
possible juror bias is difficult to measure, and therefore, the district
court’s “evaluation of the likelihood that the impartiality of one or more
jurors may have been affected” is entitled to “the highest degree of
respect.”    Washington, 434 U.S. at 511.

     [The trial judge] has seen and heard the jurors during their
     voir dire examination. He is the judge most familiar with the
     evidence and the background of the case on trial.       He has
     listened to the tone of the argument as it was delivered and
     has observed the apparent reaction of the jurors. In short, he
     is far more “conversant with the factors relevant to the
     determination” than any reviewing court can possibly be.

Id. at 514 (citing Wade, 336 U.S. at 687).   We also note that it is   well
established that “[t]he exposure of the jury to improper communications or
extrinsic material evidence creates a presumption of prejudice, and
therefore a presumption of an infringement of the




     4
       Melius urges us to take a piecemeal approach to reviewing
the district court’s decision. His brief dissects the record,
arguing that the district court’s consideration of certain
factors and failure to consider others when making its
determination were each an abuse of discretion. This approach is
contrary to settled law on the subject. We will not review the
record in isolated and unrelated component parts. Our review of
the district court’s decision that there was manifest necessity
for the mistrial is made “taking all the circumstances into
consideration.” United States v. Givens, 88 F.3d 608, 612 (8th
Cir. 1996)(citing United States v. Perez, 22 U.S.(9 Wheat.) at
580); see also Washington, 434 U.S. at 517 (recognizing that a
trial court is not required to make findings supporting its
declaration that manifest necessity exists and therefore review
is to be made based upon the entire record).

                                    10
defendant’s Sixth Amendment right to trial by an impartial jury.”                      United
States v. Rowley, 975 F.2d 1357, 1363 (8th Cir. 1992)(citing Remmer v.
United States, 347 U.S. 227, 229 (1954), and Osborne v. United States, 351
F.2d 111, 117 (8th Cir. 1965)).         Here, after hearing the defense’s closing
argument which in effect accused the government of misleading the jury,
three of the jurors directly received extrinsic information that a witness
was available to them, but that they had not been allowed to hear her
testimony,     and     a    fourth   juror   learned    of       the   information   shortly
thereafter.     The four members of the jury had access to the information
from Thursday evening, November 14, 1996, to the following Monday, when the
district court conducted its voir dire.              Additionally, the contact of the
jurors was the subject of a note, which the other jurors knew about, and
the extraneous information entered the deliberative process very shortly
after    the   jury   had   received   the    case    for    a    verdict.     Under    these
circumstances, it would not be unlikely for a juror to question whether the
government had hidden evidence from them, or whether the defense was
improperly attempting to influence their verdict.                        In light of the
defense’s closing argument, the district court exercised sound discretion
in finding that the jury was tainted.


                                             IV.


        We conclude that the district court exercised sound discretion in
determining that the mistrial was based upon “manifest necessity,” and hold
that the Double Jeopardy Clause of the Fifth Amendment does not bar a
retrial in this case.        Accordingly, the order of the district court denying
Melius’ motion to dismiss the indictment against him is affirmed.




                                             11
A true copy.



     Attest:



           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  12
