United States of America v. Daniel Lamont Mathis, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4579
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man,
Defendant - Appellant.
No. 15-4580
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a
Black Wolf, a/k/a Babi,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:14-cr-00016-GEC-JCH-1; 3:14-cr-00016-GEC-
JCH-4)
Submitted: January 5, 2016 Decided: January 11, 2016
Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender for the Western
District of Virginia, Geremy C. Kamens, Acting Federal Public
Defender for the Eastern District of Virginia, Frederick T.
Heblich, Jr., Assistant Federal Public Defender,
Charlottesville, Virginia, Paul G. Gill, Assistant Federal
Public Defender, Richmond, Virginia, for Appellants. Anthony P.
Giorno, United States Attorney, Christopher R. Kavanaugh, Ronald
M. Huber, Jean B. Hudson, Assistant United States Attorneys,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellants Daniel Lamont Mathis and Kweli Uhuru appeal from
the district court’s order denying their motion to dismiss the
superseding indictment pending against them on double jeopardy
grounds. Finding no reversible error, we affirm.
I.
Appellants and their four codefendants are charged in a 36-
count superseding indictment. The superseding indictment
alleges, among other matters, that Appellants are members of a
street gang and that members of this gang conspired with one
another to conduct and participate in the affairs of the gang
through a pattern of racketeering activity consisting of
assaults, robberies, burglaries, kidnapping, carjacking, murder,
drug trafficking, and obstruction of justice. All six
Defendants proceeded to a jury trial. Trial commenced on May 4,
2015, and a 16-person jury was sworn by the district court. No
party had sought an anonymous jury, and the 16 sworn jurors were
selected from a non-anonymous jury panel of 134 individuals.
On May 6, 2015, the district court gave its opening remarks to
the jury, and the parties gave their opening statements.
That evening, counsel for the Government notified the court
and defense counsel that it had a preliminary matter it wished
to take up with the district court prior to the presentation of

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evidence. During an in-chambers conference the next day, an
agent with the Federal Bureau of Investigation (FBI) reported to
the district court and counsel that he had learned that Uhuru
had removed from the courtroom and taken to his jail cell a jury
list containing personally identifying information for the
entire 134-person jury panel; this jury list remained in Uhuru’s
possession overnight and for a total of at least 15 hours. The
agent expressed concerns regarding the safety of the individuals
on the jury list -- given that the jury panel was not anonymous
-- and stated that his concerns were shared by higher ranking
officials within the FBI, as well as members of the Virginia
State Police and the Louisa, Virginia, County Sheriff’s
Department. The agent emphasized that these concerns were based
at least in part on the believed affiliation between the
Defendants and the “United Blood Nation,” a street gang with a
history of taking violent action with respect to trials.
The agent advised further that the FBI and other law
enforcement agencies believed they had a duty to notify the 134
jury panel members -- whom the agencies believed to be at some
level of risk as a consequence of Uhuru’s actions -- of the
release of their personal information. To avoid the possibility
of a mistrial, however, the agent proposed that the members of
the jury panel be advised of the removal of the jury list at the
conclusion of the trial.

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The district court also heard from counsel. Based on the
concerns raised by the agent, several defense attorneys
questioned the propriety of waiting until the trial’s conclusion
to notify the individuals on the jury panel and stated their
beliefs that a mistrial was necessary. Other defense attorneys
noted that the personal information of jury panel members is
routinely shared with criminal defendants and did not move for
or opposed a mistrial. Counsel for the Government stated the
Government’s view that there were no grounds for a mistrial.
The district court then elicited input from the United States
Marshals in charge of the security detail for the trial. They
advised counsel and the court of Uhuru’s believed gang
connections and recruitment activities, but stated there was no
evidence he had shared the jury list with anyone else.
Following a recess, counsel for the Government reported
that the FBI remained of the opinion that the individuals on the
jury list should be contacted regarding the dissemination of
their personal information but that the Government opposed a
mistrial. After hearing again from the FBI agent and
considering his concerns and the observations of the Marshals
and hearing from counsel, the district court determined that it
would send letters to members of the jury panel advising them
that their personal information had been “viewed to a somewhat
greater extent by criminal defendants than is usually the case

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in the voir dire process.” J.A. 222. The court elected to send
the letters the following morning rather than wait until the
conclusion of the trial. Consistent with this ruling, the
district court sent letters to each member of the jury panel.
After the district court announced its decision to send the
letters, the four Defendants other than Mathis and Uhuru moved
for mistrials. Trial recommenced on May 12, 2015, and the
district court granted the mistrial motions of the four
Defendants other than Mathis and Uhuru. Mathis and Uhuru
concurred with the district court’s proposal to conduct a voir
dire of the 16 sworn jurors to determine whether they thought
they could proceed as jurors in light of the information relayed
in the court’s letters to them.1
1 The letters advised the 16 jurors that:
It is routine in all trials, both civil and criminal,
for counsel to share personal information about
prospective jurors with their clients, including
criminal defendants. This is designed to make sure
that attorneys and their clients are able to make
intelligent decisions in matters of jury selection.
In this case, however, information about all jury
panel members was disseminated among the defendants to
a greater degree than is usually the case in federal
jury selection, in that a jury list was retained by
one defendant overnight.
The court has made appropriate inquires and finds no
reason for special concern. Nonetheless, we wanted to
advise you of this circumstance. If you have any
additional questions, you may use the contact number
(Continued)

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After the district court, counsel for Mathis and Uhuru, and
counsel for the Government met with and heard from all 16 jurors
individually, the district court excused 3 jurors but advised
that it was prepared to proceed to trial with the remaining 13
jurors. The court heard argument from counsel for Mathis and
Uhuru regarding their objections to 5 of the 13 jurors but
stated it was convinced all 5 were capable of continuing to
serve on the jury. The court also stated its willingness to
proceed to trial with a jury of less than 12 persons if the
parties could agree to do so. Mathis and Uhuru elected,
however, to move for mistrials, and the district court granted
their motions and declared a mistrial in the case.
Trial was rescheduled for February 1, 2016. Mathis and
Uhuru moved to dismiss the superseding indictment on the grounds
that a retrial was barred by the Double Jeopardy Clause of the
Fifth Amendment, claiming that they were goaded into moving for
mistrials by the district court and the Government. The
district court denied the motion, concluding that Mathis and
Uhuru failed to prove its actions were intended to goad them
into seeking mistrials and that there was no evidence that the
previously provided. The court will discuss this
matter with you upon your return to court on Tuesday.
J.A. 229.

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Government had any desire for a mistrial or intended to cause
one.
Mathis and Uhuru noted timely interlocutory appeals from
the district court’s order,2 and this court granted the
Government’s motion for expedited briefing. On appeal,
Appellants challenge the district court’s rejection of their
double jeopardy claim.
II.
The Double Jeopardy Clause of the Fifth Amendment provides
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.
This clause protects a criminal defendant from facing “repeated
prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S.
667, 671 (1982). “In the case of a jury trial, jeopardy
attaches when a jury is empaneled and sworn.” Baum v. Rushton,
572 F.3d 198, 206 (4th Cir. 2009). “As such, the constitutional
protection against double jeopardy embraces the defendant’s
valued right to have his trial completed by a particular
2 This court has jurisdiction over the appeals under the
collateral order exception to the final judgment rule.
See Midland Asphalt Corp. v. United States, 489 U.S. 794, 798-99
(1989); United States v. Jefferson, 546 F.3d 300, 308-10
(4th Cir. 2008).

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tribunal.” Id. (internal quotation marks and alteration
omitted).
Nevertheless, the right to have a particular jury decide
guilt or innocence once jeopardy has attached is not absolute.
“There are circumstances under which retrial is permitted after
a criminal proceeding has ended in mistrial.” Sanders v.
Easley, 230 F.3d 679, 685 (4th Cir. 2000). Where, as here, a
defendant obtains a mistrial, “the conditions for invocation of
the double jeopardy bar are strict.” United States v. Wentz,
800 F.2d 1325, 1327 (4th Cir. 1986). A defendant can avoid a
second trial only if the “the governmental conduct in question
is intended to ‘goad’ the defendant into moving for a mistrial.”
Kennedy, 456 U.S. at 676. “[C]onduct that might be viewed as
harassment or overreaching, even if sufficient to justify a
mistrial on defendant’s motion, . . . does not bar retrial
absent intent . . . to subvert the protections afforded by the
Double Jeopardy Clause.” Id. at 675-76. Appellants bear the
burden of proving specific intent to provoke a mistrial.
United States v. Smith, 441 F.3d 254, 265 (4th Cir. 2006).
A district court finding as to intent to cause a mistrial
is a factual finding this court must accept unless it is clearly
erroneous. United States v. Johnson, 55 F.3d 976, 978 (4th Cir.
1995). Under the clear error standard of review, this court
will reverse only if “left with the definite and firm conviction

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that a mistake has been committed.” United States v. Chandia,
675 F.3d 329, 337 (4th Cir. 2012) (internal quotation marks
omitted).
We conclude after review of the record and the parties’
briefs that Appellants have not met their burden to show clear
error by the district court. Contrary to Appellants’
assertions, the record makes clear that, in sending the letters,
the district court was motivated by a desire to be open and
honest with the jury panel members about potential security
concerns and concerns potentially bearing on their ability to
serve as jurors, not by a desire to cause a mistrial. The
record also makes clear that the district court orally confirmed
on multiple occasions that it was ready and willing to proceed
to a trial for Appellants, and we reject as without merit
Appellants’ suggestions that we should deem these oral
confirmations of only nominal relevance and conclude that the
statements reflected the court’s intent to goad. We also reject
as without merit Appellants’ challenge to the district court’s
determination that the Double Jeopardy Clause did not bar
retrial even if the decision between requesting a mistrial and
potentially accepting a jury of less than 12 persons qualified
as a Hobson’s choice. Accord United States v. Green, 636 F.2d
925, 929 (4th Cir. 1980) (noting that when a prosecutor or the
district court “acts erroneously but without such a malevolent

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purpose [i.e., that of acting to provoke a mistrial], retrial is
not precluded even though the error was such as to present the
defendant with a Hobson’s choice between giving up his first
jury and continuing a trial tainted by prejudicial, judicial[,]
or prosecutorial error” (internal quotation marks omitted)).
Appellants also argue in the alternative that Government
counsel and the FBI agent provoked their mistrial motions.
We conclude, however, that the record supports the district
court’s determination that the agent and Government counsel did
not act to provoke a mistrial. The agent notified the parties
and district court about law enforcement’s concerns regarding
the individuals on the jury list in light of Uhuru’s actions and
believed gang connections because law enforcement had a duty to
notify the jury panel members, whom it believed to be at some
level of risk as a consequence of Uhuru’s actions. The agent,
however, proposed that the panel members be notified of the
disclosure of their personal information after the conclusion of
the trial to ensure that the trial proceedings were not
disrupted.
The record also makes plain that Government counsel had
neither the desire nor intent to cause a mistrial. Government
counsel voiced opposition to the granting of a mistrial on
multiple occasions and even affirmed the Government’s
willingness to sever Mathis and Uhuru from their codefendants

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and proceed to trial against them alone. Further, at the point
the agent addressed the district court and counsel at the in
chambers conference, Government counsel had made an opening
statement for the Government and had subpoenaed its witnesses to
testify; given these circumstances, there was no reason for
counsel to desire a mistrial. Appellants’ arguments to the
contrary are rejected, and we further reject as meritless their
remaining extraneous arguments for overturning the district
court’s order.
III.
Accordingly, we affirm the district court’s order.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
The clerk’s office is directed to issue the mandate forthwith.
AFFIRMED

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