UNITED STATES v. ARRINGTON (2022)

DECISION AND ORDER

Defendant Roderick Arrington (“Defendant” or “Arrington”) stands accused by way of a superseding indictment of various crimes, including murder, relating to his alleged involvement in activities perpetrated by a violent neighborhood gang, referred to by the government as the “Schuele Boys,” operating principally on the East Side of the City of Buffalo. (Dkt. 17). The charges presently pending against Defendant include: racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count 1)¹ ; narcotics conspiracy, in violation of 21 U.S.C. § 846 (Count 2); possession of firearms in furtherance of crime of violence and drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (Count 3); murder in aid of racketeering activity, in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (Count 4); discharge of firearm in furtherance of crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 (Count 5 and Count 8); discharge of firearm causing death in furtherance of crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1), and 2 (Count 6); and attempted murder in aid of racketeering activity, in violation of 18 U.S.C. §§ 1959(a)(5) and 2 (Count 7).² (Id.).

Presently before the Court is Defendant's “Motion for Dismissal with Prejudice for Fifth Amendment Violation Double Jeopardy” (hereinafter, the “Double Jeopardy Motion”), seeking dismissal of the superseding indictment based on violation of the Double Jeopardy Clause of the United States Constitution. (Dkt. 889). For the following reasons, Defendant's motion is denied.

BACKGROUND

I. Defendant's First Trial, Appeal, and Remand to District Court

Defendant was charged by way of a superseding indictment returned on June 19, 2015. (Dkt. 17). He was represented by attorney Andrew C. LoTempio. (See Dkt. 65). On September 25, 2017, following an approximate two-week trial presided over by United States District Judge Richard J. Arcara, a jury found Defendant guilty of eight counts, and acquitted him on four counts. (See Dkt. 240; see also Minute Entry dated 09/25/2017). Judge Arcara imposed an aggregate sentence of two terms of life imprisonment to be run consecutively, plus 30 years to be run consecutive. (Dkt. 309; Dkt. 310). Defendant appealed his conviction and sentence to the Second Circuit Court of Appeals. (Dkt. 306).

On October 18, 2019, the Second Circuit vacated Defendant's conviction and remanded the case for a new trial. (Dkt. 523). In its decision, the Second Circuit rejected Defendant's arguments relating to the sufficiency of the evidence at trial, but found that Defendant's Sixth Amendment right to effective assistance of counsel was violated with respect to his counsel's prior representation of a co-defendant. (See id.).

Once remanded, Defendant was appointed new counsel (see Minute Entry dated 12/02/2019; Dkt. 527), and the court received renewed pretrial submissions (see, e.g., Dkt. 651). Thereafter, defense counsel moved to withdraw as counsel, requesting that the court grant Defendant's request to proceed pro se and appoint standby counsel. (Dkt. 547; Dkt. 579). The court granted the request to withdraw and appointed Defendant a new attorney, Kevin Spitler. (See Minute Entry dated 12/17/2020). On February 10, 2021, after Mr. Spitler advised Defendant of the consequences of appearing pro se, and following a colloquy with the court, the court granted Defendant's motion to proceed pro se, with Mr. Spitler acting as standby counsel. (See Minute Entry dated 02/10/2021). Thereafter, Mr. Spitler was relieved as standby counsel due to a breakdown in the relationship with Defendant, and attorney Robert Singer was appointed as standby counsel but then also subsequently relieved due to issues that arose with Defendant. (See Minute Entry dated 08/19/2021) (discussing Mr. Spitler's request to be relieved as standby counsel due to breakdown of relationship between himself and Defendant); Dkt. 644 (relieving Mr. Spitler as standby counsel and appointing attorney Robert Singer as standby counsel); Dkt. 716 (granting Defendant's motion to “recuse” Mr. Singer as standby counsel and Mr. Singer's motion to withdraw, due to attorney-client issues). On May 25, 2022, the court appointed attorney Mark Foti to act as standby counsel (see Dkt. 716), and Defendant proceeded to trial with Mr. Foti acting in that capacity.

II. Second Trial and Jury Deliberations

Defendant's second trial commenced on September 7, 2022. (Dkt. 813). Following selection of the jury, both the government and Defendant presented numerous witnesses. The jury began deliberating on October 7, 2022 (Dkt. 874), and deliberations continued until a mistrial was declared on October 18, 2022 (see Dkt. 883).

During the course of deliberations, the trial court received several notes from the jury, and three of those notes advised the court that the jury was “deadlocked.” The first such note, which was marked as Court Exhibit 7, was received during the third day of deliberations, on October 13, 2022, at 11:10 a.m., and read as follows: “The jury is currently deadlocked after our deliberations.”

Following receipt of this note, the court advised the parties that it did not intend to give the Allen ³ instruction, because “we're not at that point.” (Dkt. 905 at 2). The court explained to the jury:

Considering your note, considering all the factors here, it appears that the time of the answering of questions, reading the readback, the weekends, days off, that you have deliberated about five and a half hours, which is not a very long period of time to deliberate in a case that has had, like, five weeks in length approximately and somewhere between 45 and 50 witnesses. I'm sending you back in the jury deliberation room to continue your deliberations.

(Id. at 2-3).

The second note concerning a deadlock, which was marked as Court Exhibit 10, was received the next day, on October 14, 2022, at 10:59 a.m., and read as follows: “This jury is still deadlocked.”

Following receipt of the second note, the court stated its intention to deliver a modified Allen charge to the jury. (Dkt. 906 at 2). The court distributed a copy of the proposed charge to both the government and Defendant. (Id.). Defendant objected to the Allen charge:

I object due to the instructions of the Allen charge and also that this is the second time that they sent a note in saying that they deadlocked, and they been deliberating since last Friday, Your Honor, and I object.

(Id.). Defendant continued: “I move for a mistrial also, Your Honor.” (Id.). The court noted Defendant's objection to the Allen charge for the record, and delivered the Allen charge to the jury. (Id. at 2-4; see also Dkt. 882). The Allen charge was marked as Court Exhibit 10A and was sent back to the deliberation room with the jury. (Dkt. 906 at 5).

The third note concerning a deadlock, which was marked as Court Exhibit 11, was received during the fifth and final day of deliberations—on October 18, 2022—and read as follows: “This jury is deadlocked, after all deliberations.”

Following receipt of the third note indicating that the jury remained deadlocked, the court solicited the parties “if they want to say something.” (Dkt. 907 at 2). The government asked if the court would consider instructing the jury on a partial verdict, which the court declined. (Id. at 2). Defendant again requested “a mistrial ․ with prejudice,” which he saw as the “only remedy.” (Id.). The court brought the jury in and stated, “this is the third note that I've received that the jury has been deadlocked or hung. And based on that, the Court has no choice but to declare a mistrial.” (See Dkt. 907 at 2-3). The court dismissed the jurors and scheduled a conference to set a new trial date. (Id. at 3; see also Dkt. 883).

III. Present Motion and Transfer to the Undersigned

On October 24, 2022, Defendant filed his Double Jeopardy Motion. (Dkt. 889). On October 25, 2022, the case was transferred to the undersigned. (Dkt. 890). The Court held a status conference on October 27, 2022, and set a scheduling order on the motion. (Dkt. 891; Dkt. 892). The government responded on November 7, 2022 (Dkt. 909), and Defendant filed a reply on November 23, 2022 (Dkt. 920). The Court held oral argument on November 30, 2022, and reserved decision. (Dkt. 921).

DISCUSSION

Defendant moves to dismiss the superseding indictment with prejudice, arguing that dismissal is required because he previously stood trial on two occasions and a third trial would violate the Double Jeopardy Clause. (Dkt. 889 at 7). Defendant contends that, in connection with his retrial, the jury was deadlocked, with the majority of the jurors voting “not guilty,” suggesting that had they been permitted to deliberate further they would have returned a “not guilty” verdict, and that the trial court abused its discretion by declaring a mistrial and discharging the jury. (Id. at 7-10). Defendant further argues that advice given by standby counsel Mr. Foti, that Defendant object to delivery of the Allen charge and ask for a mistrial, was false and misleading. (Id. at 3-4, 6-7, 9).

In response, the government contends that the Double Jeopardy Clause does not require dismissal of the charges against Defendant, including because (1) by asking for a mistrial, Defendant cannot claim error, since the trial court granted him that relief, and (2) because the jury was genuinely deadlocked, manifest necessity required the trial court to declare a mistrial. (See Dkt. 909 at 5-15).

I. The Double Jeopardy Clause

The Double Jeopardy Clause of the Fifth Amendment states as follows. “No person shall be ․ subject for the same offence to be twice put in jeopardy of life or limb․” U.S. Const. amend. V. “The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal.” Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Further, “[e]ven when a first trial is not completed, a second prosecution may be ‘grossly unfair’ because it ‘increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.’ ” United States v. Razmilovic, 507 F.3d 130, 136 (2d Cir. 2007) (quoting Washington, 434 U.S. at 503-04, 98 S.Ct. 824). The trial judge “must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

“Despite the importance of this right, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.” Razmilovic, 507 F.3d at 136 (quotations and citation omitted). For example, retrial is permitted “when the original decision to declare a mistrial was compelled by ‘manifest necessity.’ ” Id.; see also Manino v. Artus, No. 06-CV-3078(ARR)(JO)., 2009 WL 1117301, at *13 (E.D.N.Y. Apr. 24, 2009) (“There is no specific set of circumstances in which a court is obligated to declare a mistrial. The court should do so only when, in the sound discretion of the presiding judge, the discontinuance of the trial is a ‘manifest necessity.’ ”). In addition, “[w]here the original trial has not been completed and the defendant himself or herself has moved for or consented to a mistrial ․ a retrial is normally not barred.” United States v. Huang, 960 F.2d 1128, 1133 (2d Cir. 1992); see also United States v. Monfort, 485 F. App'x 493, 494-95 (2d Cir. 2012) (“When a defendant moves for or consents to a mistrial ․ the Double Jeopardy Clause usually imposes no bar to retrying that defendant.” (citation and alteration omitted)). See also Jorn, 400 U.S. at 485, 91 S.Ct. 547 (explaining that “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution,” and that in the absence of such a motion, “the ․ doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings”).

II. Manifest Necessity

As explained above, retrial is permitted when the decision to declare a mistrial was one of “manifest necessity.” “The manifest necessity standard reflects a recognition that a criminal trial is even in the best of times, a complicated affair to manage ․ and that a rule that barred retrial whenever an appellate court saw the need to declare a mistrial differently would create undesirable pressures on trial judges to see each trial through to completion.” Razmilovic, 507 F.3d at 136-37 (citations and quotations omitted). “The test as to what circumstances will constitute manifest necessity is not susceptible to a mechanical formulation; each case must be evaluated on its own facts and circumstances.” Huang, 960 F.2d at 1135; see also United States v. Millan, 817 F. Supp. 1086, 1088 (S.D.N.Y. 1993).

“The classic example of manifest necessity is the discharge of a genuinely deadlocked jury.” Razmilovic, 507 F.3d at 137 (alteration omitted) (quoting United States v. Castellanos, 478 F.2d 749, 751 (2d Cir. 1973)); see also Huang, 960 F.2d at 1135 (“A hung jury is the most common example of circumstances in which the need for a mistrial is manifest.”); United States v. Persico, No. 04-CR-911 (JS), 2007 WL 9759637, at *1 (E.D.N.Y. Dec. 18, 2007) (“It is well established that jury deadlock constitutes ‘manifest necessity.’ ”). “The term ‘genuinely deadlocked’ suggests more than an impasse; it invokes a moment where, if deliberations were to continue, ‘there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors.’ ” Razmilovic, 507 F.3d at 137 (quoting Washington, 434 U.S. at 509, 98 S.Ct. 824); see also United States v. Golding, 482 F. App'x 633, 635 (2d Cir. 2012) (same). In assessing whether a jury is “genuinely deadlocked,” the trial court “is in the best position to assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate ․, and ․ when faced with a deadlocked jury, the trial judge must delicately balance the defendant's valued right to have his trial completed by a particular tribunal and the public's interest in fair trials designed to end in just judgments.” Razmilovic, 507 F.3d at 137 (citations and quotations omitted).

Defendant does not appear to contest the notion that the jury was deadlocked. (See, e.g., Dkt. 889 at 8 (stating that the jury was “deadlocked for over ․ five days”)). Despite this, Defendant argues that the majority of the jury was voting “not guilty” and that the trial court abused its discretion in granting a mistrial. (Id. at 8-10; see also Dkt. 914 at 4-5). However, when questioned about his statements relating to the jury split at the status conference on November 9, 2022, Defendant conceded that he “just guessed” how the jury was split, and he did not have any information as to how the jury was actually split during deliberations (see Dkt. 914 at 5); in other words, Defendant's statements regarding the jury split are without any factual basis and there is no evidence in the record as to the vote breakdown.

The Second Circuit considers several factors in reviewing the determination that a jury was “genuinely deadlocked.” Due to the fact-intensive nature of the inquiry, the factors are not exhaustive but are “useful guideposts for ․ review of the trial court's determination.” Razmilovic, 507 F.3d at 137. These factors include: (1) statements by the jury that it cannot agree, including both jury notes indicating deadlock and statements made directly to the trial judge by the jury; (2) the length and complexity of the trial, including the number of counts and number of defendants; (3) the amount of time that the jury has deliberated, which also is generally related to the length and complexity of the trial; (4) the impact that further, forced deliberations might have on a possible verdict, particularly in the case of an “already exhausted jury,” which may “induce jurors to accommodate a verdict which they would not otherwise support”; and (5) what actions, if any, the trial judge took prior to declaring a mistrial to help it determine whether the jury was genuinely deadlocked, including “alternatives that the district court chose not to pursue, recognizing that a trial court must be mindful of the possibility that any action it chooses to take might coerce a verdict.” Id. at 137-38. Although these factors are meant to aid in appellate review, the Court finds them to be useful tools in determining whether there was manifest necessity to declare a mistrial—which it must consider for purposes of resolving the Double Jeopardy Motion—and upon considering them concludes that the jury was “genuinely deadlocked.” See Monfort, 485 F. App'x at 497 n.2 (declining to reach alternative holding that mistrial was required under the “manifest necessity” standard, but explaining that it “appreciate[d] the district court's colloquy with the parties and its explanation of its decision,” which “can aid our inquiry”).

First, the jury's written communications to the trial court plainly communicated that the jurors could not agree on a verdict. In each of the notes, the jury used the term “deadlocked.” In the second note, the jury communicated that it was “still deadlocked” and in the third and last note, the jury communicated that it was “deadlocked, after all deliberations.” Further, the notes from the jury—which stated that they were “deadlocked,” “still deadlocked,” and “deadlocked after all deliberations”—communicated an increasing sense that they could not agree on a verdict despite “all” efforts to do so.

As to the length and complexity of the trial and the length of deliberations, the trial involved one defendant charged with eight counts and spanned approximately five weeks, involving fourteen days of witness testimony from over fifty total witnesses. (See Dkt. 815; Dkt 825; Dkt. 831; Dkt. 833; Dkt. 845; Dkt. 849; Dkt. 852; Dkt. 856; Dkt. 858; Dkt. 859; Dkt. 866; Dkt. 870; Dkt. 871; Dkt. 873). The jury's deliberations encompassed five days total, which included time during which the trial testimony of five witnesses was read-back to the jury. (See Dkt. 874 (October 7, 2022); Dkt. 878 (October 12, 2022); Dkt. 881 (October 13, 2022); Dkt. 882 (October 14, 2022); Dkt. 883 (October 18, 2022)). Given this information, the Court finds that the jury deliberated for a sufficient amount of time to address each charge against Defendant and the length of deliberations was commensurate with the length and complexity of the trial. In other words, it is apparent that the jury meaningfully attempted to reach a verdict but was unable to do so. See Razmilovic, 507 F.3d at 138 (“Although the length of the jury's deliberation was not excessive considering the complexity and length of the trial, neither was it so insubstantial as to cast doubt on the correctness of the judge's mistrial declaration.”) (quoting United States v. Byrski, 854 F.2d 955, 963 (7th Cir. 1988)).

Furthermore, the trial court took actions prior to declaring a mistrial to help it determine whether the jury was genuinely deadlocked. As explained above, after receiving the first note that the jury was deadlocked, the trial court explained to the jury that, considering the length of the trial and number of witnesses, they had not been deliberating for that long and directed them to continue their deliberations. After receiving the second note indicating that the jury was deadlocked, the trial court delivered the modified Allen charge to the jury.⁴ Despite receiving this additional direction from the trial court, including the Allen charge, the jury remained unable to reach a verdict. See Razmilovic, 507 F.3d at 139 (discussing “actions that the trial court could have taken short of declaring a mistrial,” including “instructing the jury to continue its deliberations,” and “giving the jury an Allen charge”). Under the circumstances, forcing the jury—which had repeatedly declared itself deadlocked—to continue deliberations would have run the very real risk that jurors would have been induced to render a verdict that they did not support.

To the extent Defendant contends that the trial court should have instructed the jury that it could return a partial verdict (see, e.g., Dkt. 889 at 10 (noting trial court's denial of government's request that jury be instructed on possibility of returning partial verdict)), the record does not support any error by the trial court. “[J]uries should be neither encouraged nor discouraged to return a partial verdict, but should understand their options, especially when they have reached a stage in their deliberations at which they may well wish to report a partial verdict as to some counts or some defendants.” United States v. DiLapi, 651 F.2d 140, 147 (2d Cir. 1981); see also United States v. Burke, 700 F.2d 70, 80 (2d Cir. 1983) (“Rule 31(b) requires only that the district judge accept a partial verdict upon request, and refrain from instructing the jury that they may not return a partial verdict.”). The record demonstrates that the trial court considered the possibility of instructing the jury on returning a partial verdict, but denied that request by the government because the jury did not indicate that it wished to do so. (See Dkt. 907 at 2). For example, the jury did not ask the trial court about the possibility of returning a partial verdict, nor did the jury indicate that it was deadlocked on only some counts in the indictment. Likewise, Defendant did not request that the trial court give any such instruction.

For these reasons, the Court concludes that the jury was “genuinely deadlocked.” In reaching this determination, the Court particularly notes the jury's consistent communications to the trial court, on three separate occasions, indicating that they were “deadlocked.” Coupled with the length of the deliberations in view of the length and complexity of the trial, the record supports the conclusion that any further attempt to ask the jury to continue deliberating would have had a coercive effect on their deliberations. See United States v. Altieri, 278 F. App'x 53, 53-54 (2d Cir. 2008) (district court did not abuse its discretion in concluding that jury was “genuinely deadlocked” and therefore that manifest necessity existed, where the jury “sent three notes to the district judge indicating juror disagreement on the charges,” and the last note “came five days after the district judge directed the jury to continue deliberations despite juror disagreements, advising that it is common for jurors to disagree”); see also Golding, 482 F. App'x at 635 (manifest necessity existed where trial court “received three notes stating that the jury was unable to reach a verdict because at least one juror was unable to be impartial or follow the jury instructions”); United States v. Williams, 205 F.3d 23, 36 (2d Cir. 2000) (declining to disturb determination that the jury was deadlocked, where jury deliberated for over two days in relatively simple trial, and “declared on no fewer than four occasions that they could not reach a verdict”); United States v. Klein, 582 F.2d 186, 192 (2d Cir. 1978) (jury was genuinely deadlocked where deliberations lasted six days following a three-week trial, large portion of the testimony and the charge was read back to the jury, the court's delivery of modified Allen charge produced no results, and the jury itself informed court that it was deadlocked on two occasions). Because the record demonstrates that the jury was “genuinely deadlocked,” the need for a retrial was a manifest necessity, and therefore the retrial of Defendant does not violate the Double Jeopardy Clause.⁵

III. Defendant's Consent to a Mistrial

Separate and apart from the existence of manifest necessity supporting the declaration of a mistrial because of genuine jury deadlock, the relief Defendant seeks is also barred because he specifically requested a mistrial. “When a defendant moves for or consents to a mistrial, the Double Jeopardy Clause usually imposes no bar to retrying that defendant.” Razmilovic, 507 F.3d at 140-41; see also Jorn, 400 U.S. at 485, 91 S.Ct. 547 (“a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error”). “The reason for allowing a retrial in such circumstances is that when the defendant requests a mistrial, he is deemed to have deliberately elected to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” Huang, 960 F.2d at 1133 (citations, quotations, and alteration omitted). “Thus, the Double Jeopardy Clause guards against government oppression; it does not relieve a defendant of the consequences of his voluntary choice to accept a mistrial.” Id.

“Consent may be express, or it ‘may be implied from the totality of circumstances attendant on a declaration of mistrial.’ ” Monfort, 485 F. App'x at 495 (quoting United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir. 1973)). “Indeed we have observed that consent can be inferred where defendant was afforded minimal but adequate opportunity to object while mistrial was being declared.” Marte v. Vance, 480 F. App'x 83, 84 (2d Cir. 2012) (quotations and citations omitted). “By focusing on whether a defendant elected to forego that right, we seek to ensure ‘that the defendant retain primary control over the course to be followed in the event of [judicial or prosecutorial] error.’ ” Razmilovic, 507 F.3d at 141 (quoting United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)).

However, “the fact that the defendant consented to the mistrial does not deprive him of double jeopardy protection if the mistrial was occasioned by conduct of the trial judge or the prosecutor that was intended to provoke the defendant into moving for a mistrial.” Huang, 960 F.2d at 1133 (quotations and citation omitted). “The applicability of this exception turns squarely on the judge's or prosecutor's intent,” and “[n]egligence, even if gross, is insufficient.” Id. “ ‘Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial’ is the defendant who has moved for a mistrial protected from retrial by the Double Jeopardy Clause.” Id. (quoting Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)).

The trial record reflects that Defendant requested a mistrial on two separate occasions during deliberations, including after the trial court received the second and third notes from the jury stating that they were deadlocked. (See Dkt. 906 at 2 (Defendant requesting a mistrial on October 14, 2022); Dkt. 907 at 2 (Defendant again requesting a mistrial on October 18, 2022)). The record is devoid of any evidence that the government or the trial court provoked or “goaded” Defendant into asking for a mistrial, nor does Defendant claim otherwise. Instead, Defendant argues that he did not understand the repercussions of his asking for a mistrial because his standby counsel gave him bad advice. (Dkt. 889 at 3-4, 6-7, 9).

Of course, legitimate tactical reasons may motivate a defendant to request a mistrial when faced with a deadlocked jury. Defendant's hindsight reflection on the appropriateness his tactical decisions—now knowing that his requests for a mistrial would bar his double jeopardy argument—cannot circumvent the record evidence of his consent to the very relief that he now attempts to disavow. Moreover, Defendant's argument that he had “no knowledge” of “what a mistrial was or meant” (Dkt. 889 at 3) is belied by the fact that Defendant asked for a mistrial during the trial on more than one occasion (see Dkt. 832; Dkt. 856).

Furthermore, the evidence of Defendant's consent to the mistrial is not undermined by his attempts to shift blame to his standby counsel. Defendant knowingly and voluntarily waived his right to representation by an attorney and elected to represent himself pro se at his second trial. The record reflects that Defendant, prior to his retrial, was repeatedly informed that there are dangers inherent in proceeding pro se. (See, e.g., Minute Entry dated 02/10/2021). By electing to proceed pro se, Defendant took charge of his own defense at trial and there is no such claim for ineffective assistance of standby counsel. See, e.g., Faretta v. California, 422 U.S. 806, 834 n.46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel’ ”); see also United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998) (“without a constitutional right to standby counsel, a defendant is not entitled to relief for the ineffectiveness of standby counsel”); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (“Absent a constitutional right to standby counsel, a defendant generally cannot prove standby counsel was ineffective.”). For those reasons, the Court concludes that because Defendant requested—on two separate occasions during deliberations—that the trial court declare a mistrial, his retrial is not barred by the Double Jeopardy Clause.

CONCLUSION

For the foregoing reasons, Defendant's Double Jeopardy Motion (Dkt. 889) is denied.

SO ORDERED.

FOOTNOTES

1.   The references herein are to the renumbered counts in the redacted superseding indictment. (See Dkt. 239).

2.   Defendant was originally charged in 12 counts of a 15-count superseding indictment. (Dkt. 17; Dkt. 239). Following his first trial in September 2017, a jury found Defendant not guilty of four of those counts, including Count 9 (possession of heroin with intent to distribute); Count 10 (maintaining drug-involved premises); Count 11 (possession of firearm in furtherance of drug trafficking crimes); and Count 12 (possession of firearm and ammunition by convicted felon). (See Dkt. 240). Accordingly, Defendant no longer stands accused of those four counts. (See, e.g., Dkt. 875 at 2 n.1 (“The redacted Superseding Indictment for the retrial includes only Counts 1 through 8.”)).

3.   See Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

4.   Defendant argues that the trial court's sending a written copy of the Allen charge back to the deliberation room was coercive and also that he was not present at the time the trial court informed the parties that it was sending the charge back to the deliberation room. The transcript reflects Defendant's presence at the time that the modified Allen charge was read to the jury (see Dkt. 906 at 1-5), and there is no indication that Defendant was no longer present during the one-minute exchange when the court returned to the courtroom to advise that the written charge would be sent to the deliberation room (see id. at 5). In any event, given that the jury did not in fact reach a verdict, Defendant's attempt to argue that the sending of the charge into the deliberation room was somehow coercive is unpersuasive. See, e.g., United States v. McDonald, 759 F.3d 220, 223 (2d Cir. 2014) (discussing that propriety of giving Allen charge to jury turns in part on whether it “tends to coerce undecided jurors into reaching a verdict” (citation omitted)).

5.   Some of the cases concluding that “manifest necessity” existed to declare a mistrial due to jury deadlock note that the district court, among other things, polled the jury to confirm that they were unable to reach a verdict. See Razmilovic, 507 F.3d at 139-40 (discussing cases, including cases where court polled jury members before declaring mistrial). Here, although the trial court did not poll each member of the jury to ask directly whether they were unable to reach a verdict, neither party requested that the court poll the jury, nor is there any indication from the record that any member of the jury disputed that they were unable to reach a verdict. See Klein, 582 F.2d at 193 (explaining that “the finding of manifest necessity cannot be based on the simple application of any formula,” and “[w]e have held that a trial court acted within its sound discretion in declaring a mistrial even though the trial judge questioned only the jury foreman about deadlock and did not poll the entire jury.”).

ELIZABETH A. WOLFORD, Chief Judge