United States v. Razmilovic, No. 06-4198-cr (2d Cir. August 27, 2007) (Miner, Kaztmann, CJJ, Murtha, DJ).
Here, the district court’s precipitate grant of a mistrial barred the reprosecution of the defendants under the Double Jeopardy Clause.
At the end of a six-week fraud trial, and only 3 days of deliberation, the jury sent out a note, its first of this kind, saying that it was “at a dead lock. We have exhausted all our options.” The only action Judge Wexler took was to ask whether any defendant sought a mistrial. When two defendants so moved, the judge granted it.
Covering well trod ground, the Circuit concluded that there was no “manifest necessity” for a mistrial at such an early point, and thus that the two defendants who objected to the mistrial could not be reprosecuted. The court considered the complexity of the trial, the length of the deliberations, the fact that the district court took no action at all with respect to the jurors, and the overall lack of evidence “that further deliberations would have risked producing a verdict that the jurors would not have otherwise supported.”
Of perhaps more interest in this appeal is the court’s discussion of one of the two defendants, Borghese, who initially joined in his co-defendants’ motion for a mistrial, then quickly changed his mind and announced that he opposed it. The Circuit held that Borghese did not consent to the mistrial, and thus could not be retried. The change of position was immediate – it occurred “within seconds” of the declaration of the mistrial. In addition, the objection was made before the jury was discharged, and thus the court could have changed its decision.