Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86-CR-292--James F. Holderman, Judge.
John L. Coffey, Joel M. Flaum, and Frank H. Easterbrook, Circuit Judges.
JOEL M. FLAUM, Circuit Judge.
Defendants-appellants' first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. The defendants neither requested a mistrial nor consented to its declaration. When the district court subsequently set a date for a new trial, the defendants filed a motion to dismiss the indictment on the bound that the double jeopardy clause of the fifth amendment precluded their reprosecution. The defendants argued that the district court abused its discretion in finding the jury deadlocked and declaring a mistrial. The court denied the defendants' motion to dismiss the indictment concluding that there was manifest necessity for the mistrial.
On April 14, 1988 the defendants filed a notice of appeal from the court's denial of their motion to dismiss. On the same day, the district judge held a status hearing at which he concluded that the defendants' double jeopardy argument was frivolous.*fn1 The defendants then filed an emergency motion to stay their second trial and a motion for an expedited appeal. Although we denied the defendants' original motion to stay, on reconsideration we granted it in part and heard argument on an expedited basis.*fn2 Because we hold that the district court did not abuse its discretion in declaring a mistrial, we affirm the judgment of the district court.
In the fall of 1987, the defendants were tried on fifty-three criminal counts involving charges of extortion, racketeering, and possession and distribution of narcotics. The trial lasted thirty-two days; it was conducted four days a week for eight weeks. Jury deliberations began on December 10, 1987. Between December 10 and December 23, when the judge declared a mistrial, the jury deliberated for a total of approximately thirty hours.
From the beginning of the deliberation process the jurors generated an unusual volume of notes to the court.*fn3 These notes, which addressed both substantive issues and personality conflicts, evidenced the difficult and overly-contentious nature of this jury's deliberative process. Each time a juror submitted a note to the court, the judge called all of the attorneys for the parties into the courtroom to discuss the appropriate course of action. The judge then read the note into the record in open court and elicited comments from the attorneys as to how the court should respond to the question at hand. This process was complicated both by the number of attorneys who participated in the trial and, at times, the continuous stream of notes from the jury to the court. After hearing the views of all parties, the court ruled on each matter and sent the jury a written response attached to a copy of the note.
On the first day of deliberations, December 10, 1987, this process for the jury's communications with the court functioned successfully. The jurors asked three questions, each one submitted through the foreperson. All three questions related to the logistical difficulties involved in the onset of deliberations in a complex case. On December 11 the jurors asked three additional questions, only one of which was signed by the foreperson. Two of the three questions raised, for the first time, the possible inability of the jury to reach a verdict. The first of these two was signed by the foreperson and asked: "What happens when we cannot all agree on a particular charge. Some say guilty some say not guilty. Which way do we go?" The second note, signed by a single juror, read: "It seems that no one agrees with my opinions, that I am holding up the process, and I request to be let go and an alternate juror be called in to expedite this matter." The court instructed the jurors to refer to the jury instructions and to continue to deliberate. Because the following day was Saturday, the jury's deliberations were continued until Monday, December 14.
On Monday three more notes were sent to the court, none of which was signed by the foreperson. None of these three notes raised the issue of a jury deadlock. The jurors deliberated for only a few hours on December 15 and 16 because of blizzard conditions in the area and one juror's illness. The jury did not send any notes to the court on either date.
On Thursday, December 17, 1987, the jury's difficulties intensified. As the day progressed, three jurors submitted notes to the court individually, each note more indicative of discord than the last. In the first note, which was submitted at 11:00 a.m., a juror discussed at length the difficulties she was experiencing with the judge's instructions. This note concluded: "How long must discussion on apparent deadlock on separate counts continue?" At approximately 12:50 p.m., the foreperson and another juror sent separate notes to the court that focused on the problems the jury was having in reaching a verdict. The foreperson's note stated:
We, the jurors are having a hard time charging the seven defendants on the counts charged. We are deadlocked on some defendants and on others we are unanimous on some (counts), deadlocked on other (counts) for each (defendant).
We, the jurors attempted to go over the not unanimous counts and one juror decided that he was not voting again. I'm not saying that we wouldn't still be deadlocked, but we can't go over each defendant's (counts) with 11 jurors.
The second juror's note indicated more specifically that the jury had reached a deadlock and ended with a request that she be dismissed from the jury. Upon receiving these notes the judge conferred with counsel. The parties agreed that the court should respond to the notes by bringing the jury into the courtroom and repeating the Silvern instruction.*fn4
The following afternoon, December 18, nine jurors sent a note to the court indicating their belief that further deliberations would ...