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United States v. Garske

United States Court of Appeals, First Circuit

September 20, 2019



          Cynthia A. Young, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant.

          David Spears, with whom Josiah Pertz, Spears & Imes LLP, Justine Harris, Michael Gibaldi, Sher Tremonte LLP, William J. Cintolo, Meredith Fierro, and Cosgrove, Eisenberg & Kiley, PC were on joint brief, for appellees.

          Before Thompson, Selya, and Barron, Circuit Judges.


         This appeal requires us to address a novel question implicating the Double Jeopardy Clause. See U.S. Const. amend. V. Concluding, as we do, that the district court erred in holding that the defendants were insulated from a retrial by double jeopardy principles, we reverse the district court's order of dismissal and remand the case for further proceedings consistent with this opinion.

         I. BACKGROUND

         We briefly rehearse the relevant facts and travel of the case. The reader who thirsts for more exegetic detail may wish to consult the district court's comprehensive account. See United States v. Ackerly, 323 F.Supp. 3d 187');">323 F.Supp. 3d 187, 190-92 (D. Mass. 2018).

         On August 10, 2016, a federal grand jury sitting in the District of Massachusetts returned an indictment charging four defendants - Donna Ackerly, Charles Garske, Richard Gottcent, and Michael Sedlak - with multiple counts of wire fraud, honest-services wire fraud, and conspiracy to commit both species of wire fraud. See 18 U.S.C. §§ 1343, 1346, 1349. The indictment recounted that between September of 2007 and March of 2012, the four defendants conducted a fraudulent scheme while employed at Georgeson, Inc., a firm that specializes in advising public companies on positions that institutional investors are likely to take in voting their proxies with respect to corporate governance proposals. The alleged scheme consisted of bribing an employee of Institutional Shareholder Services, Inc. (ISS), a firm that advises institutional shareholder clients on how to vote on particular proxy issues, in exchange for confidential information about ISS's proxy-voting advice and then falsifying invoices to Georgeson's clients to cover the cost of the bribes.

         Ackerly moved to sever, see Fed. R. Crim. P. 14(a), arguing that she was "peripheral at most" to the conduct alleged in the indictment and that severance would shield her from potentially prejudicial spillover attributable to the evidence against her codefendants. The government opposed Ackerly's motion, and the district court sustained the government's objection. Ackerly renewed her severance motion approximately one year later, but to no avail.

         Trial began on February 26, 2018, with twelve jurors and two alternates empaneled. On the second day of trial, the district court excused a juror who failed to report for duty. On the fourth day of trial, the court excused a second juror for medical reasons. During the eleventh day of trial (Friday, March 16), the court told the jurors that the presentation of evidence would conclude on Monday, March 19, with final arguments and jury instructions to follow. Later that evening, a "distraught" Juror 12 contacted a district court clerk, explaining that his wife had gone to the hospital and he was concerned about continuing his jury service. He subsequently told the clerk that his wife had been diagnosed with a brain tumor and would require surgery in the next few days.

         At 10:32 a.m. on Saturday morning, at the direction of the district court, the clerk notified counsel by email about Juror 12's situation. The clerk wrote that Federal Rule of Criminal Procedure 23(b)(2)(B) "allows a reduction to 11 jurors with the written consent of the parties and the judge" and added that the court was "prepared to make the necessary finding of good cause and look[ed] to the parties to agree." Attorneys for Garske, Gottcent, and Sedlak all responded, indicating their clients' assent to proceeding with a jury of eleven. The government replied by email at 12:18 p.m. that it "consent[ed] to proceed with 11." At 2:53 p.m., the government clarified "that [its] consent is conditioned on all four defendants consenting." Ackerly's counsel weighed in at 4:15 p.m., reminding the court that Ackerly had sought severance from the inception of the case and stating that she would not consent. This email went on to assert that the government witnesses set to testify that Monday would "not offer any evidence against [Ackerly], " and that Ackerly was prepared to move for a judgment of acquittal. The government replied that the evidentiary record as to Ackerly was "not complete." Moreover, the government noted that it was "puzzled by [Ackerly's] reference to severance, " expressing the view that it would be "terribly inappropriate to use this circumstance in an attempt to achieve that result."

         Later that afternoon, the clerk emailed the parties that she had communicated their positions to the district court. The email explained, inter alia, that the court would not entertain Ackerly's motion for judgment of acquittal and that it intended to enter a finding of good cause for Juror 12's excusal on Monday, March 19. Finally, the email stated that the court "accept[ed] the emails of the consenting defendants['] attorneys as made in good faith and believe[d] that the double jeopardy clause g[ave] . . . those defendants the right to proceed to a verdict with [the empaneled] jury." This email, however, proved to be premature. Shortly after it was sent, the clerk reported to the parties that the district court had just seen the government's second email - clarifying that its consent was conditional - and the court "fe[lt] it ha[d] no other choice than to declare a mistrial on Monday morning."

         On Monday, the district court convened a non-evidentiary hearing. The court began by reiterating that the circumstances "constitute[d] good cause for the juror's excusal." Turning to Rule 23(b)(2), the court noted that the rule was "as clear as a rule could be" in stating that the parties, "which would necessarily include the government, " must agree to proceed with a jury of fewer than twelve. Given the government's unwillingness to consent to a reduced jury, the court acknowledged that "[t]here's no power that I see, or discretion that I have, under the rule to force any different result." The court then related that it had considered alternatives to the declaration of a mistrial but could think of only one: indefinitely postponing the trial pending the return of Juror 12. In the court's judgment, though, such an alternative was not feasible due to the uncertainty of the juror's wife's medical condition and the difficulty of supervising the other jurors in the interim. The parties suggested no other alternatives to a mistrial, but Garske, Gottcent, and Sedlak objected to a mistrial on the ground that the government's "conditional" consent did not demonstrate the requisite "manifest necessity."

         At that point, the district court summoned the jury and explained what had transpired. The court declared a mistrial and discharged the jurors. The following day, the government announced that it intended to retry the defendants.

         On April 27, 2018, Garske, Gottcent, and Sedlak filed a joint motion to preclude retrial and to dismiss the indictment under the Double Jeopardy Clause on the ground that the government could not establish "'manifest necessity' for its decision to force the mistrial." After hearing argument, the district court took the matter under advisement. In due course, the court handed down a rescript and granted the motion to dismiss the indictment. This timely appeal followed.


         This case presents a question of first impression arising at the intersection of Federal Rule of Criminal Procedure 23 and the Double Jeopardy Clause. It implicates two competing rights: the right of all parties to have a criminal case decided by a jury of twelve and a criminal defendant's right not to be twice put in jeopardy. We lay the groundwork for our analysis by limning the applicable legal principles.

         A. Rule 23.

         In Patton v. United States, 281 U.S. 276 (1930), the Supreme Court held that a criminal defendant has a constitutional right to a jury of twelve unless he waives that right. See id. at 312. The Court cautioned that "[i]n affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons . . ., we do not mean to hold that the waiver must be put into effect at all events." Id. In amplification, the Court stated that "before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the ...

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