The opinion of the court was delivered by: Bartels, District Judge.
Shortly after 5:00 p.m. the jury sent yet another note
indicating that they were at an impasse and could not reach a
unanimous verdict.*fn7 The following exchange then took place in
At 5:15 p.m. the jury recommenced deliberations and at 5:45
p.m. they sent yet another note indicating that they remained
deadlocked and that one of their number had to leave by 6:00 p.m.
for religious reasons. At this juncture the Court informed
counsel of its intention to declare a mistrial. Both the
government and defense
counsel asked that the jury return Monday to continue their
deliberations. In response, the Court noted that, although it was
perfectly amenable to the idea of adjourning till Monday, it
seemed a futile gesture inasmuch as the jury had earlier rebuffed
that suggestion. The jurors returned to the courtroom at which
time the following colloquy took place.
The COURT: [T]he real important issue is whether or
not you can possibly come to a decision. Do you think
you can come to a decision if you came here on
The FOREMAN: No.
The COURT: Anyone else think they can come to a
decision if we have further deliberations Monday?
Anyone think that? Is it possible? You believe.*fn9
The FOREMAN: Agreed.
The COURT: Do you want to come in on Monday?
The FOREMAN: We were talking in the room we said
Monday but then some people said also they wouldn't
change their mind. They wouldn't change their mind
whatever happen [sic]. (Emphasis added.)
The COURT: Members of the jury, I declare a mistrial
because of your failure to get together.
The jury is hereby dispersed. They can go home and
call the 1-800 number Sunday night and report next
Mr. CONCANNON [Defense Counsel]: If we have to report
next week any way, if the juror has the
The COURT: I understand that but you heard me declare
Mr. CONCANNON: Yes, your honor.
The COURT: I have my reasons. I brought it out from
this foreman that it doesn't look like they can ever
get together. Is that right Mr. Foreman?
The FOREMAN: Yes.
The COURT: Is there any possibility of you getting
JUROR # 6: I don't think so.
The COURT: The jurors are dispersed. It's a
Essentially, Feijoo-Tomala claims that the Court's declaration
of a mistrial was premature and unwarranted since the jury had
deliberated only a short time and there were other alternatives
available, i.e. returning the next business day to resume
deliberations. Consequently, she argues, she was deprived of her
valuable right to a verdict at a single trial, and a second trial
would violate her rights under the Double Jeopardy clause of the
More than a century ago, in the preeminent case of United
States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), a
unanimous Supreme Court resolved this issue when it held that
where a mistrial is occasioned by a jury's failure to reach a
verdict the Double Jeopardy clause of the Fifth Amendment does
not bar a retrial. Id. at 580. Justice Story explained that the
Double Jeopardy clause does not bar retrial because a declaration
of mistrial, after a hung jury, is a "manifest necessity" to
secure "the ends of public justice." Id.; see also Arizona v.
Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 830, 832, 54
L.Ed.2d 717 (1978) (a "trial judge's belief that the jury is
unable to reach a verdict" is a "classic basis for a proper
mistrial"); United States v. Richardson, 468 U.S. 317, 324-326,
104 S.Ct. 3081, 3085-3087, 82 L.Ed.2d 242 (1984) ("we have
constantly adhered to the rule that a retrial following a `hung
jury' does not violate the Double Jeopardy clause"); Oregon v.
Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416
(1982); (the hung jury is the prototypical example of manifest
necessity); Downum v. United States, 372 U.S. 734, 736, 83
S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963) (the classic example of
permissible retrials occurs when, without the defendant's
consent, the jury has been discharged because they cannot agree);
v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6
L.Ed.2d 901 (1961) ("where for reasons deemed compelling by the
trial judge, . . . the ends of substantial justice cannot be
attained without discontinuing the trial, a mistrial may be
declared without the defendant's consent and even over his
objection, and he may be retried consistently with the Fifth
Amendment"); United States v. Ustica, 847 F.2d 42, 48 (2d Cir.
1988); Lindsey v. Smith, 820 F.2d 1137, 1155 (11th Cir. 1987),
cert. denied 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595
reh'g denied ___ U.S. ___, 109 S.Ct. 1771, 104 L.Ed.2d 206
(1989); United States v. Salvador, 740 F.2d 752, 755 (9th Cir.
1984), cert. denied 469 U.S. 1196, 105 S.Ct. 978, 83 L.Ed.2d
980 (1985); Walker v. Weldon, 744 F.2d 775, 778 (11th Cir.
1984); United States v. Beckerman, 516 F.2d 905, 908 (2d Cir.
1975); United States v. Khait, 643 F. Supp. 605, 606 (S.D.N Y
"The trial court is in the best position to assess all the
factors which must be considered in making a necessarily
discretionary determination whether the jury will be able to
reach a just verdict if it continues to deliberate." Arizona v.
Washington, 434 U.S. at 510 n. 28, 98 S.Ct. at 833 n. 28; see
also Gori v. United States, 367 U.S. at 368, 81 S.Ct. at 1526.
Although there is no talismanic point to demarcate the instant at
which a viable jury capable of reaching a unanimous verdict
becomes a hopelessly deadlocked jury, numerous relevant factors
have been identified, including the length of the trial, the
complexity of the issues involved, the length of time the jury
has deliberated, whether the defendant has timely objected to the
mistrial, and the effects of exhaustion or coercion. Arnold v.
McCarthy, 566 F.2d 1377, 1387 (9th Cir. 1978) (citations
omitted). However, the jury's own statement that it is unable to
reach a verdict is the most crucial factor. United States v.
Lorenzo, 570 F.2d 294, 299 (9th Cir. 1978); United States v.
Lansdown, 460 F.2d 164, 170 (4th Cir. 1972).
This was a rather brief trial, lasting approximately three
days, in which a total of seven witnesses were called. Moreover,
this was not a complex case, either in terms of the facts or the
law. The jury, quite simply, had to decide one issue — was
Feijoo-Tomala an innocent dupe who did favors for strangers, if
you believed her defense, or was she a drug smuggler.
Furthermore, based on the nature of the jury's early notes there
seemed to be no confusion with respect to the law as charged by
The fact that a mistrial is declared after the jury has
deliberated for a relatively short period of time does not ipso
facto warrant a conclusion that the Court acted improvidently.
See Lindsey v. Smith, 820 F.2d at 1155 (mistrial declared after
jury deliberated for three hours and sent two notes indicating
their inability to reach a unanimous verdict); United States v.
Lorenzo, 570 F.2d at 299 (declaring a mistrial after jury
deliberated for a little over three hours in a brief trial which
presented no complex questions of fact and then indicated they
were unable to reach a verdict was not an abuse of discretion);
United States v. Beckerman, 516 F.2d at 908 (declaring a
mistrial after jury deliberated approximately seven hours
following a three day trial on a one count indictment charging
defendant with possession and intent to distribute narcotics was
not an abuse of discretion); United States v. Brahm,
459 F.2d 546 (3rd Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34
L.Ed.2d 125 (1972) (declaring a mistrial after jury deliberated
five hours in a two day trial was not an abuse of discretion).
Simply put, "[t]here is no minimum amount of time which a jury
must spend in deliberations before a mistrial can be declared."
Arnold v. McCarthy, 566 F.2d at 1387 (declaring mistrial after
jury deliberated 12 hours following a brief trial of "ordinary
complexity", was not an abuse of discretion).*fn11
While exhaustion was not a concern, the possibility of coercion
was very real. Although the Defendant has a "valued right to have
h[er] trial completed by a particular tribunal," Wade v.
Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974
(1949), that right is not absolute and "must in some instances be
subordinate to the public's interest in fair trials designed to
end in just judgments." Id. 69 S.Ct. at 837. The Court must
guard against "the significant risk that a verdict may result
from pressures inherent in the situation rather than the
considered judgment of all the jurors." Arizona v. Washington,
434 U.S. at 509, 98 S.Ct. at 832; United States v. See,
505 F.2d 845, 853 (9th Cir. 1974), cert. denied 420 U.S. 992, 95
S.Ct. 1428, 43 L.Ed.2d 673 (1975). Had the Court exhorted the
jury to return Monday, it would have been sending the not so
subtle message that a verdict, at any price, was the only
acceptable resolution. Such an action would have prodded some
jurors to surrender their conscientious belief in order to reach
a unanimous verdict. The consequence being, that the Court would
not have been true to itself, or our system of jurisprudence.
Lastly, with respect to the jury's own statement of their
deadlock, the Court was persuaded by (1) the three notes sent by
the jury indicating that they were deadlocked — two of which came
after an Allen charge had been given; and (2) the fact that
when the Court asked whether "[a]nyone [on the jury thought] they
could come to a decision if we have further deliberations Monday?
Anyone think that? Is it possible?", eleven jurors remained
silent while the Foreman emphatically responded, "No."*fn12 The
confluence of all of these factors was sufficient to convince the
Court that the jury was hopelessly deadlocked.
In closing, the Court notes that Defendant's allegation that it
did not consider any alternatives prior to declaring a mistrial
is unsupported. In fact the Court did consider the very
alternative Defendant suggests, i.e., resuming deliberations on
Monday. The jury unequivocally rejected this option.
For the aforementioned reasons Defendant's motion to dismiss
the indictment pursuant to the Double Jeopardy Clause of the
Fifth Amendment is DENIED.