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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 95-1555

UNITED STATES,

Appellee,

v.

JOSEPH EUGENE BARBIONI,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________

Boudin and Stahl, Circuit Judges.


______________

_____________________

William Maselli for appellant.


_______________

F. Mark Terison, Assistant United States Attorney, with whom


_______________
Jay P. McCloskey,
_________________
Woodcock, Assistant
________

United

States

United States

Attorney,

and

Attorney, were

appellee.

____________________

August 7, 1995

Elizabeth C.
_____________
on brief

for

____________________

TORRUELLA,
TORRUELLA,

Barbioni

Chief Judge.
Chief Judge.
____________

Joseph

appeals on double jeopardy grounds the district court's

denial of his motion to dismiss.

a mistrial

Defendant-appellant

after

the jury

The district court had declared

announced

that it

was

deadlocked.

Finding no abuse of discretion, we affirm.

BACKGROUND
BACKGROUND

Appellant

deliberately

Barbioni

making

Department of Labor

false

trial that lasted

instructions by the

After

statements

approximately seven

U.S.C.

and

the

tried

United

hours, the

that it could

some general

for

States

for mail

1001 and 1341, respectively.

almost four days, the

district court judge then brought

gave it

to

district court and began

district court, saying

and

indicted

Workers' Compensation Program, and

fraud, in violation of 18

After a

was

jury was given

its deliberations.

jury sent

a note

not reach a verdict.

to the

The

the jury back to the courtroom

instructions,

jurors that the verdict must be unanimous.

such as

reminding the

The court then stated

to the jury

that it did not

intend to keep them

there "against

your will and beat a verdict out of you one way or the other, but

I want to

make one more effort

to attempt to reach

a unanimous

verdict if we can."

The court continued, "[I]f that's impossible

in

judgment, then

your collective

advise

me of

that fact

in

writing . . . and we'll respond accordingly."

The jury then retired again.

further deliberations,

the jury again

saying that it could not reach

After three more hours of

sent a note to

a unanimous decision.

-2-

the court

The

judge

then called counsel

for the government and

defense counsel into

chambers and explained that he was going to inquire of the jurors

individually whether they all agreed

verdict.

If

that they could not reach a

they all agreed, the court stated, it would declare

mistrial.

The defense

objected

to this

course of

action,

requesting that the jury be given more time to deliberate after a

weekend's rest.

Nevertheless, the court polled the jurors

in open court.

that the

Each juror stated

jury was deadlocked,

deliberations

were

not

that he or she

and that further

likely

to

resolve

individually

was satisfied

instructions or

the

deadlock.

Accordingly, the district court declared a mistrial and dismissed

the jury over defense counsel's objections.

ANALYSIS
ANALYSIS

Barbioni

now claims that the district court abused its

discretion in declaring a mistrial, and that retrial is barred by

the Double Jeopardy Clause of

decision

to

declare

discretion of

497, 506

the United States Constitution.

mistrial

the trial court,

(1978), and we

this discretion.

is

committed

to

Arizona v. Washington,
_______
__________

therefore review only

the

sound

434 U.S.

for an abuse

of

After carefully reviewing the record, we see no

such abuse here.

While

"valued

right

it is

to

have

certainly

his

true that

trial completed

defendant has

by

particular

tribunal,"

is

Wade v. Hunter, 336 U.S. 684, 689 (1949),


____
______

not absolute.

Rather,

it

is subject

to

this right

the doctrine

of

-3-

"manifest necessity."

1528 (1st Cir.

Wheat.) 579, 580

United States v. Ram rez,


_____________
_______

884 F.2d 1524,

1989) (citing United States v. P rez,


_____________
_____

(1824).

Under this doctrine,

22 U.S. (9

a district court

may declare a mistrial over

determines that there is

the defendant's objection only if it

a "manifest necessity" for a

mistrial,

or the ends of public justice would otherwise be defeated.

see also United States v.


_________ ______________

1991).

Moreover,

particular

DiPietro, 936
________

district

F.2d 6,

court must

circumstances surrounding

find,

the trial

Id.;
__

(1st Cir.

based on

and the

the

jury's

deliberations, that there exists a "high degree" of necessity for

a mistrial before

making such a declaration.

Ram rez, 884 F.2d


_______

at 1528-29 (citing Arizona v. Washington, 434 U.S. at 506).


_______
__________

Examining

think that

the circumstances

the district

of

court did not

the instant

abuse its

finding "manifest necessity" for declaring a

deliberated for

almost ten

hours, after

case, we

discretion in

mistrial.

which each

The jury

individual

juror unequivocally expressed the opinion that the jury could not

reach a unanimous decision.

The court polled the jurors on this

point with great care before concluding that further deliberation

would be

futile.1

Moreover, the trial

was a

relatively short

____________________

1
the

Barbioni also contends that the court should have instead sent
jurors

home

and

following Monday.
in

the court's

reconvened

rejection of

further deliberations
on this

court might

for

deliberations

Under the circumstances, we cannot find


this suggestion.

unanimously declared to the court

jurors

them

would be

point and

have risked

good faith opinions

error

jurors had

that they did not believe that


fruitful.

demanding

By disregarding

the

further deliberation,

the

pressuring the

merely for the

We do not mean that the

The

the

jurors into

abandoning

sake of reaching

unanimity.

district court was obliged to take

view, but it was a pertinent consideration.

-4-

this

one,

and

the

Nevertheless,

hours

of

legal

issues

the jurors

at

could

deliberation.

We

stake

not reach

think

that

were

not

a verdict

these

complex.

after ten

circumstances

rationally permitted the district court to conclude that manifest

necessity justified the declaration of a mistrial.

It is well settled

motion to

present

dismiss

a valid

States, 468

that an appeal

following a

Double Jeopardy

U.S. 317, 324

"hung

from a denial of

jury" does

claim.

not

Richardson v.
__________

(1984); United States v.

normally

United
______

Porter, 807

______

_____________

F.2d 21, 22 (1st Cir. 1986),

Given the

rule.

cert. denied, 481 U.S. 1048 (1987).


_____ ______

district court's sound

declaring a mistrial, we see

Accordingly,

mistrial and denial of

the

______

exercise of its

discretion in

no reason here to depart

district

court's

from this

declaration

Barbioni's motion to dismiss the

of

charges

are affirmed.2
________

____________________

Barbioni also contends on appeal that the district court erred

in its

modified Allen
_____

instruction to

the jury.

See
___

Allen v.
_____

United States, 164 U.S. 492 (1896).


_____________
given,

however,

instruction.

defense

At the time the charge

counsel raised

no

objections

was

to the

Even when the district court had finished and asked

counsel if they had anything to add to the modified Allen charge,


_____
defense counsel
Barbioni

did

stated, "No, your


not

object

arguments or suggestions
the district

court,

to

not

and

Because
raised

when given the opportunity to

we deem

properly

Thank you."

the instruction,

this

Windsor Mount Joy v. Giragosian,


_________________
__________
(arguments

Honor.

raised

appeal).

-5-

argument waived

53

no

do so by

on

appeal.

F.3d __, __ (1st Cir. 1995)

below

are

deemed

waived

on

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