Case No: 03-1658 UNITED STATES OF AMERICA v. Felipe Rivera

PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-1658
UNITED STATES OF AMERICA
v.
FELIPE RIVERA,
Appellant
______________________
Case No: 03-1659
UNITED STATES OF AMERICA
v.
HOMER WILLIS KELLY,
Appellant
______________________
Case No: 03-1660
UNITED STATES OF AMERICA
v.
LUDVIG DANIELSON,
Appellant
______________________
On Appeal From the District Court
of the Virgin Islands
District Judge: The Honorable Raymond
L. Finch
(D.C. V.I. 02-cr-00167-1; 3; 4)
Argued May 6, 2004
______________________
Before: BARRY, AMBRO, and SMITH,
Circuit Judges
(Filed: September 14, 2004 )
Jeffrey B. C. Moorhead (Argued)
C.R.T. Brow Building
1132 King Street
Christiansted, St. Croix
United States Virgin Islands 00820
Counsel for Appellant Rivera
Martial A. Webster
116 Queen Cross Street
Frederiksted, St. Croix
United States Virgin Islands 00840
Counsel for Appellant Kelly
Beverly A. Edney
P.O. Box 4958
Kingshill, St. Croix
United States Virgin Islands 00851
Counsel for Appellant Danielson
David M. Nissman
United States Attorney
St. Clair Theodore (Argued)
Assistant United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
United States Virgin Islands 00820
Counsel for Appellee
______________________
OPINION OF THE COURT
______________________
SMITH, Circuit Judge.
This case involves the application
of the Double Jeopardy Clause where a
District Judge has sua sponte declared a
mistrial over a defense objection. The
defendants were indicted for violations of
21 U.S.C. §§ 841 and 846, and 18 U.S.C.
§ 2. Near the close of the Government’s
case, a key witness injured his leg and was
unable to appear in court as scheduled.
Before the witness’s prognosis could be
ascertained by counsel or the District
Court, and over the objection of
defendants, the District Judge declared a
mistrial, ordered the matter rescheduled
for a new trial and denied a motion to

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dismiss the indictment. The defendants
brought this timely appeal. We conclude
that the declaration of a mistrial was not
manifestly necessary and, as such,
reprosecution is barred.
I.
On December 3, 2002, the United
States Attorney for the District of the
Virgin Islands filed an indictment against
Felipe Rivera, Homer Willis Kelly and
Ludvig Danielson, charging each with one
count of conspiracy to possess with the
intent to distribute more than five
kilograms of cocaine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(a) and 846.
The indictment also charged each
defendant with one count of attempting to
possess with the intent to distribute more
than five kilograms of cocaine in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a),
and 846, and 18 U.S.C. § 2.1
A jury was empaneled and trial
commenced on Monday, February 10,
2003. The trial proceeded over the course
of the week, with the Government
presenting its case. On Friday, February
14, the Government began the direct
examination of its last witness,
Christopher Schoenbaum. When the
Friday session concluded, the District
Court scheduled the resumption of trial for
Tuesday, February 18, the day after
Presidents’ Day. Schoenbaum returned to
Orlando, Florida for the long weekend.
Before trial resumed on Tuesday,
February 18, the Government informed the
Court that Schoenbaum had been
hospitalized with a broken leg. According
t o t h e G o v e r n m e n t ’ s a t to r n e y,
Schoenbaum had undergone surgery
during which a plate and several pins had
been placed in his leg. The Government’s
information was that Schoenbaum was still
in the hospital but that he was to be
discharged in the near future. The trial
was recessed until Thursday, February 20.
When court reconvened on the
morning of February 20, the attorney for
the Government explained that all that
remained in the presentation of its case
were tape recordings that would be played
to the jury and the rest of the direct
testimony of Schoenbaum.2 The
Government explained, however, that
Schoenbaum would not be able to travel
until the following week. Upon learning
this, counsel for co-defendant Miranda-
Colon, stated: “[Y]our Honor, for the
record . . . we’re going to move for a
1 Two other individuals, Claude Earl
Francis and Daniel Miranda-Colon, were
charged in the same information and
went to trial with the appellants. They
are not parties to the present appeal.
2 The exact nature of these tapes is
unclear from the record. It is clear that
Schoenbaum was heard on at least one
tape, and that the recordings were
lengthy. One of these tapes had been
played to the jury, but 20 had not as of
the time trial was to resume on February
18, 2003.

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mistrial.” Miranda-Colon’s counsel
explained that he was concerned about the
lapse of time between the jury hearing the
Government’s direct examination and the
e v e n t u a l c r o s s - e x a m i n a t i o n o f
Schoenbaum by the defendants. Further,
Miranda-Colon’s attorney was concerned
that, if Schoenbaum were required to use a
wheelchair, the jury would be more
sympathetic to his testimony. Counsel for
the remaining defendants joined in support
of the motion. Counsel for Kelly
commented that he had concerns about two
of his witnesses going on vacation if the
trial were to be postponed. Danielson’s
counsel cited scheduling conflicts if the
trial were to be postponed. Counsel for
Rivera expressed his concern that he
would look like “some kind of animal”
cross-examining Schoenbaum while he
was recuperating. The Government
opposed the defendants’ motion for a
mistrial. The District Court ruled promptly
and summarily: “Very well. Motion for
mistrial is denied.” The District Judge
made no other statements, nor did he
provide the defendants the opportunity to
seek reconsideration of his ruling. The
Court recessed the jury for the day, and
scheduled trial to resume on Monday,
February 24.
When February 24th arrived, the
attorney for the Government informed the
Court that Schoenbaum had attempted to
board a plane to return to the trial, but was
turned back when narcotic medications
and syringes were found in his luggage.
According to the prosecutor, the airline,
after questioning Schoenbaum as to his
reason for possessing the medication, also
refused to allow him to board the plane
without a doctor’s waiver. Government
counsel noted that Schoenbaum was
scheduled for an appointment with his
doctor at 10:00 A.M. that very day and
advised the Court that “within a few hours
we [will] know whether or not the doctor
will release [Schoenbaum] to get on the
plane.”
The defendants requested that the
Government go forward or that the Court
strike Schoenbaum’s testimony. Rivera’s
attorney informed the Court that he did not
want a mistrial. Counsel for Miranda-
Colon instead suggested that “perhaps
[they] could resume testimony tomorrow.”
The Government pressed the Court for
more time. The following discussion then
ensued:
THE COURT: The fact of the
matter is that in this case there is
inconvenience to everyone, Court,
counsel, the Government. I have
140 people ready to go in another
trial in anticipation of something
like this happening. The big
problem for me in this case is the
way in which the case has
unfolded. That is, with frequent
i n t e r r u p t i o n s , n u m e r o u s
interruptions, the jurors having to
sit for long periods of time,
sometimes for days, as a matter of
fact. Together with the fact that the
large portion of the testimony was
recorded, and a large portion of it,
recorded testimony, is still to be

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presented to the jurors. I find that
the nature of the recording
particularly is such that jurors are
not likely to recall properly and fit
into the proper sequence of events
and give proper weight to this
recorded testimony in light of the
continued interruptions and the
long delay. And I [am] dispose[d]
to declaring a mistrial, and will so
declare. I will declare a mistrial.
Gentlemen and ladies, will you
proceed downstairs to Magistrate
Resnick, and he will reschedule the
matter. I will discharge the jury.
[Counsel for Miranda-Colon]: For the
record, Defendant Colon would like to
object and ask for a dismissal.
THE COURT: Denied.
[Counsel for Rivera]: Denied?
[Counsel for Kelly]: I join in that.
THE COURT: Denied.
That same day, February 24, a M agistrate
Judge issued an order re-scheduling trial
for Monday, May 5, 2003. On March 5,
2003, the District Court issued a “notice”
which read: “Defendants moved for a
mistrial on February 24, 2003. At a
hearing held on such motion, for the
reasons stated on the record, the Court
granted Defendants’ motion.” This timely
appeal followed.
II.
We have jurisdiction over the
District Court’s rejection of the
defendants’ motion to dismiss under
Abney v. United States, 431 U.S. 651, 662
(1977). While an order denying a
motion to dismiss an indictment on double
jeopardy grounds “lacks the finality
traditionally considered indispensable to
appellate review,” Abney counsels that
such orders satisfy the collateral order
doctrine articulated in Cohen v. Beneficial
Industries Loan Corp. Id. at 659
(discussing Cohen v. Beneficial Industries
Loan Corp., 337 U.S. 541, 546 (1949)).
Because the District Court denied the
defendants’ motion to dismiss on what
were clearly double jeopardy grounds, the
jurisdictional requisites of § 1291 have
been met. Id. at 662.
III.
The Double Jeopardy Clause
forbids that “any person be subject for the
same offence to be twice put in jeopardy
of life or limb.” U.S. Const. amend. V.
Under that clause, a defendant has a
“valued right to have his trial completed
by a particular tribunal,” Wade v. Hunter,
336 U.S. 684, 689 (1949), which is a right
held by the individual, independent of the
public interest in conducting “fair trials
designed to end in just judgments,”
Arizona v. Washington, 434 U.S. 497, 503
n.11 (1978) (internal quotation and citation
omitted).
Protections against double jeopardy

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are ancient3 and we interpret the Double
Jeopardy Clause in light of “its origin and
the line of its growth.” Green v. United
States, 355 U.S. 184, 199 (1957)
(Frankfurter, J., dissenting) (quoting
Gompers v. United States, 233 U.S. 604,
610 (1914)). The Double Jeopardy
Clause’s prohibition of multiple trials
evolved in reaction to “a time when
English judges served the Stuart monarchs
by exercising a power to discharge a jury
whenever it appeared that the Crown’s
evidence would be insufficient to convict.”
Washingto n , 434 U.S. at 507.4
Accordingly, a defendant may not be
reprosecuted where a first trial has ended
with an improperly declared mistrial.
United States v. Perez, 22 U.S. (9 Wheat)
579 (1824).
A mistrial “may be granted upon
the initiative of either party or upon the
court’s own initiative.” United States v.
Scott, 437 U.S. 82, 92 (1978).5 Ordinarily,
where the defendant seeks a mistrial, “[n]o
interest protected by the Double Jeopardy
Clause is invaded.” Id. at 100. The
Government may, therefore, bring a
subsequent reprosecution without
offending the Constitution. Love v.
Morton, 112 F.3d 131, 133 (3d Cir. 1997).6
3 The Greek orator, Demosthenes,
explained that “the laws forbid the same
man to be tried twice on the same issue.”
Whalen v. United States, 445 U.S. 684,
699 (1980) (Rehnquist, J., dissenting)
(citing 1 Demosthenes 589 (J. Vince
trans., 4th ed. 1970)). Roman law
contained similar prohibitions, with the
precept in the Digest of Justinian that
“the governor should not permit the same
person to be again accused of a crime of
which he had been acquitted.” Jay A.
Sigler, Double Jeopardy: The
Development of a Legal and Social
Policy 2 (1969); see also Bartkus v.
Illinois, 359 U.S. 121, 152 n.3 (1959)
(Black, J., dissenting).
4 Repeated attempts to convict fell out
of favor by the late Seventeenth Century
and the reign of King James II, when
prosecutions which subjected an
individual to double jeopardy began to be
barred. Washington, 434 U.S. at 508
n.23 (citing State v. Garrigues, 2 N.C.
188, 189 (1795)).
5 See Washington, 434 U.S. at 498
(holding that defense counsel’s improper
statements created manifest necessity for
the state trial court to grant the
prosecution’s motion for a mistrial);
United States v. Valadez-Camarena, 163
F.3d 1160, 1163 (10th Cir. 1998) (noting
that reprosecution is usually barred
where the prosecution requested the
mistrial).
6 We reject the Government’s
contention that the defendants requested
the mistrial at issue here. In its March 5,
2003 “notice,” the District Court did
state that the defendants had moved for a
mistrial and that the motion was granted
at a subsequent hearing. Yet defendants
did not request the mistrial declared on
February 24, which provides the basis for

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A fundamentally different analysis
applies where a mistrial is sought by the
Government, or, as here, entered by the
Court sua sponte. There is an inherent
danger that the Government will “enter[]
upon the trial of the case without sufficient
evidence to convict” and request a mistrial
simply to marshal a better case. Downum
v. United States, 372 U.S. 734, 737 (1963).
Similarly, the Double Jeopardy Clause
“prevents a prosecutor or judge from
subjecting a defendant to a second
prosecution by discontinuing the trial
when it appears that the jury might not
convict.” Green, 355 U.S. at 188. The
power to declare a mistrial “ought to be
used with the greatest caution, under
urgent circumstances, and for very plain
and obvious causes.” Perez, 22 U.S. (9
Wheat) at 580. Only where the mistrial is
required by “manifest necessity” will
reprosecution be permitted under the
Double Jeopardy Clause. Scott, 437 U.S.
at 92.7
The realities of litigation preclude a
precise definition of “manifest necessity”:
[A] criminal trial is, even in the best
of circumstances, a complicated
affair to manage. The proceedings
are dependent in the first instance on
the most elementary sort of
considerations, e.g., the health of the
various witnesses . . . . And when
one adds the scheduling problems
arising from case overloads, and the
Sixth Amendment’s requirement that
the single trial to which the double
jeopardy provision restricts the
Government be conducted speedily,
it becomes readily apparent that a
mechanical rule prohibiting retrial
whenever circumstances compel the
discharge of a jury without the
the present double jeopardy claims. The
mistrial they had earlier sought was flatly
denied by the District Court on February
20. The record is clear on this, and the
District Court’s statement on March 5,
2003 that the defendants sought the
February 24 mistrial is plainly wrong.
7 See also United States v. Stevens,
177 F.3d 579 (6th Cir. 1999) (reversing
the District Court’s denial of defendant’s
motion to dismiss on double jeopardy
grounds after the Government moved for
a dismissal when its key witness failed to
testify); United States v. Sammaripa, 55
F.3d 433 (9th Cir. 1995) (reprosecution
barred where government moved for a
mistrial, which was subsequently granted
by the district court, on the grounds that
the defendant had improperly exercised
peremptory challenges during jury
selection); United States v. Council, 973
F.2d 251, 256 (4th Cir. 1992) (where the
prosecuton failed to show his request for
mistrial was based upon a manifest
necessity, reprosecution was barred);
United States v. Ruggiero, 846 F.2d 117,
123 (2d Cir. 1988) (“when the
Government moves for a mistrial, it must
show a high degree of necessity, a
‘manifest necessity,’ to avoid a double
jeopardy bar to a subsequent
prosecution”).

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defendant’s consent would be too
high a price to pay . . . .
United States v. Jorn, 400 U.S. 470, 479-
80 (1971); see also Illinois v. Somerville,
410 U.S. 458, 463 (“The interests of the
public in seeing that a criminal prosecution
proceed to verdict . . . need not be forsaken
by the formulation or application of rigid
rules that necessarily preclude the
v i n d i c at i o n o f t h a t i n t e r e s t. ” ).
Nevertheless, “trial judges may declare a
mistrial without barring reprosecution only
in extraordinary circumstances.” United
States ex rel. Russo v. Superior Court of
N.J., 483 F.2d 7, 13 (3d Cir. 1973).
The question of whether “manifest
necessity” existed in the case before us is
a mixed question of law and fact over
which we exercise plenary review. Id. at
15 (citing Townsend v. Sain, 372 U.S. 293,
309 n.6 (1963)); United States ex rel.
Thomas v. State of N.J., 472 F.2d 735,
737-38 (3d Cir. 1973). Reprosecution may
be had when the mistrial is necessitated by
the jury’s inability to agree upon a verdict.
Perez, 22 U.S. (9 Wheat) at 580;
Richardson v. United States, 468 U.S. 317,
325 (1984) (“the failure of the jury to
reach a verdict is not an event which
terminates jeopardy”). Further, if a juror
is biased, Simmons v. United States, 142
U.S. 148 (1891), or served on the indicting
grand jury, a trial judge may declare a
mistrial without precluding a second
prosecution, Thompson v. United States,
155 U.S. 271 (1894). Where, as here, the
basis for the District Court’s declaration of
a mistrial is the unavailability of a
prosecution witness, “the strictest scrutiny
is appropriate.” Washington, 434 U.S. at
508; Crawford v. Fenton, 646 F.2d 810,
817 (3d Cir. 1981) (“If, for example, a
mistrial has been granted in order to allow
the state to achieve a tactical advantage,
then the strictest scrutiny is appropriate.”).
Critically, a mistrial must not be
declared without prudent consideration of
reasonable alternatives. Federal Rule of
Criminal Procedure 26.3 requires 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.” The dialogue
fostered by Rule 26.3 ensures that only
those mistrials that are truly necessary are
ultimately granted. Crawford, 646 F.2d at
817-18; United States v. McKoy, 591 F.2d
218, 223 (3d Cir. 1979). The Government
bears the burden of demonstrating that,
“under the circumstances confronting the
trial judge, he had no alternative to the
declaration of a mistrial.” McKoy, 591
F.2d at 222 (citing Jorn, 400 U.S. at 487).
Ultimately, however, the District Court
must exercise prudence and care, giving
due consideration to reasonably available
alternatives to the drastic measure of a
mistrial. Crawford, 646 F.2d at 818-19.
Where a District Court sua sponte declares
a mistrial in haste, without carefully
considering alternatives available to it, it
cannot be said to be acting under a
manifest necessity. Morton, 112 F.3d at
134-35; accord Glover v. McMackin, 950
F.2d 1236 (6th Cir. 1991); Cherry v. Dir.
State Bd. of Corr., 635 F.2d 414 (5th Cir.

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1981) (en banc); Brady v. Samaha, 667
F.2d 224, 229 (1st Cir. 1981). Any
subsequent reprosecution under those
circumstances is barred by the Double
Jeopardy Clause.
IV.
The record in this case demonstrates
that the District Court failed to consider
both the constitutional implications
attendant to the declaration of a mistrial, as
well as the reasonable alternatives to a
mistrial. Ordinarily, the Government bears
a heavy burden of demonstrating that there
is no alternative but to declare a mistrial.
McKoy, 591 F.2d at 222. Here, however,
the Government opposed the mistrial,
informing the Court that Schoenbaum was
meeting with his doctor to obtain the
necessary release to travel to the Virgin
Islands. Rather than demonstrate manifest
necessity, the Government presented the
Court with a reasonable alternative to a
mistrial, i.e., that the Court wait “a few
hours [to] know whether or not the doctor
will release [Schoenbaum] to get on the
plane.”
The concerns identified by the District
Court do not justify rejection of this
alternative, nor do they amount to manifest
necessity. First, the District Court
expressed concern about the scheduling
difficulties Schoenbaum’s absence created.
The judge explained that the trial had
provided an “inconvenience to everyone,
Court, counsel, the Government.” The
Court further observed that it was
scheduled to begin another trial soon.
Scheduling considerations, however, do
not outweigh the Court’s duty to protect
the defendants’ constitutional right to be
required to stand trial only once and are,
by themselves, insufficient to support the
declaration of a mistrial. Jorn, 400 U.S. at
479-80.
Second, the District Court expressed
concern that the deliberating jurors might
have difficulty piecing together the
evidence following a disjointed trial. Yet
at the time the judge declared the mistrial,
only three calendar days had passed since
the Court had rejected the defendants’ own
request for a mistrial. Further,
Schoenbaum had an appointment with his
doctor at the very moment that the Court
considered declaring a mistrial. The
record provides no basis on which to
conclude that the three prior days had
significantly eroded the jury’s ability to
recall testimony, or that further erosion
would occur in the short time needed to
determine Schoenbaum’s prognosis.
What makes this declaration of a
mistrial particularly troubling is that it was
due to the absence of a prosecution
witness. As the Supreme Court explained
above, the “strictest scrutiny is appropriate
when the basis for the mistrial is the
unavailability of the critical prosecution
evidence.” Washington, 434 U.S. at 508.
This is not to say that the absence of a key
witness can never constitute manifest
necessity. See, e.g., Downum, 372 U.S. at
737 (cautioning that, based on the facts
presented, the absence of a witness could
constitute manifest necessity for a
mistrial). The District Court, however,

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must take great care to ensure that there
are no available alternatives before
declaring a mistrial in such circumstances.
E.g., United States ex rel. Gibson v.
Ziegele, 479 F.2d 773, 778 (3d Cir. 1973).8
That the Government itself presented the
District Court with a reasonable alternative
to a mistrial places the Government in a
poor position to now argue that the District
Court exercised such care.
The Government’s attempt to analogize
this c a s e t o th e u n f o r e se e a b le
circumstances that necessitated a mistrial
in Wade misses the mark. 336 U.S. at 687.
Wade arose out of a court martial initially
convened in Krov, Germany during World
War II. A mistrial was declared after a key
witness became ill at the same time that
the Army unit was forced by the ongoing
conflict to relocate. Id. at 689. The
District Court here was hardly presented
with the prospect of advancing armies or
the invasion of hostile territory. Instead, a
prosecution witness simply broke his leg
while away from the jurisdiction on a long
weekend. Wade is completely inapposite
to the comparatively trivial trial
inconvenience that the District Court
faced.
Instead, the facts of this case are much
closer to those in United States v. Tinney,
473 F.2d 1085 (3d Cir. 1973). Tinney was
not present when the final day of his trial
began, and the judge inquired as to his
whereabouts. Tinney’s lawyer explained
that he had phoned his client’s home and
been assured that the defendant had set out
for court some time before. The trial judge
then stated that “‘if Tinney was not present
in ‘ten minutes, I am going to have the
marshals pick him up. I am going to
revoke his bail and commit him.’” Id. at
1087. The defendant’s counsel objected,
and asked for a short continuance to
determine the whereabouts of his client.
The motion was denied. Approximately
ten minutes after the jury entered the room,
Tinney appeared and explained that his
vehicle had broken down on the drive to
the courthouse. The judge ordered Tinney
taken into custody and declared a mistrial.
Id. This Court was troubled that “the
decision was made without regard to other
reasonable possibilities and without taking
all the circumstances into consideration.”
Id. at 1089. We concluded that the trial
court’s decision to declare a mistrial, after
waiting only ten minutes for the defendant
to arrive, was unjustified and did not
display the care necessary to ensure that
the situation warranted such drastic action.
See also Morton, 112 F.3d at 134-35
8 In Ziegele, a key prosecution witness
was too ill to testify after initially being
present on the first day of a murder trial.
Id. at 775. The Court declared a recess
for the remainder of the day in order to
ascertain the severity of the witness’s
illness. The next day the Court learned
that the witness would be unable to
testify for several weeks. It was only
after gaining this information and
conducting “considerable discussion”
with the parties that the trial court
declared a mistrial. Ziegele, 479 F.2d at
775-78.

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(barring reprosecution where the trial
judge declared a m istrial almost
immediately after learning of the death of
his mother-in-law; although this Court
found the trial judge’s distress
understandable, a decision as to the course
of the trial could have been made at a later
date when there had been time for careful
consideration of the appropriate
alternatives).
We therefore conclude that the District
Judge did not exercise “‘sound discretion’
in declaring a mistrial.” Washington, 434
U.S. at 514. Choosing not to await the
final prognosis of Schoenbaum’s ability to
appear and testify, the District Judge
prematurely declared a mistrial without
considering the constitutional import of his
decision. Because the declaration of a
mistrial was not manifestly necessary, any
subsequent reprosecution of the defendants
is barred by the Double Jeopardy Clause.
The District Court’s order denying the
defendants’ motion to dismiss will be
reversed.

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