Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:12-cr-00002-RH-CAS-1.
For United States of America, Plaintiff - Appellee: Herbert Stanley Lindsey, Terry Flynn, Pamela C. Marsh, U.S. Attorney's Office, Tallahassee, FL; Robert G. Davies, U.S. Attorney's Office, Pensacola, FL.
For Jean Therve, Defendant - Appellant: Chet Kaufman, Charles William Lammers, Randolph Patterson Murrell, Federal Public Defender's Office, Tallahassee, FL; Jean Therve, FCI Williamsburg - Inmate Legal Mail, Salters, SC.
Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.
Jean Therve appeals his conviction for bribery of a public official, in violation of 18 U.S.C. § § 2 and 201(b)(1)(C), for which he was sentenced to 33 months' imprisonment. There were two trials in this case. At the first trial, the district court declared a mistrial after the jury was unable to agree on a unanimous verdict, with all but one juror in favor of finding Therve not guilty. On retrial, the jury returned a verdict of guilty. In this appeal, Therve argues that the district court abused its discretion in declaring a mistrial at his first trial. Upon review of the record and the parties' briefs, we conclude that the court exercised sound discretion in declaring a mistrial and therefore affirm.
Therve was indicted for bribing an Immigration and Customs Enforcement deportation officer to release him from detention and to prevent his deportation to Haiti. Therve pled not guilty.
The first jury trial was held over two days in November 2012. On November 5, 2012, the jury was empaneled and sworn, and the government presented its case in chief. The government based its case on the testimony of the deportation officer whom Therve allegedly bribed and on recordings of their conversations, and the defense rested without presenting any witnesses.
On the morning of November 6, 2012, the district court instructed the jury, cautioning that " [i]n any message or question you send, you should not tell me your numerical division at the time." The jury began its deliberations at 9:31 a.m. At 11:13 a.m., the court informed the parties of the following note from the jury: " It does not appear that we will reach a unanimous decision. The majority is one sided, but I don't think we will be unanimous. We are hung. What's next?" The court opined that although the jury might have a good idea of whether it would be unable to reach unanimity, it was appropriate to give an Allen  charge to " see if they can come to a unanimous agreement or not." Neither Therve nor the government objected to the giving of the modified Allen charge. The court then called in the jury and read the modified Allen charge. The jury resumed deliberations at 11:19 a.m.
At 1:07 p.m., the district court informed the parties that " [w]e have a note from the jury that essentially says they're hung, and they're not making any progress and nothing is going to change. Tell me what you would like me to do." The government requested that deliberations continue. Defense counsel initially replied that " a mistrial might be the best course to take." After speaking with Therve, however, defense counsel reversed course, stating that Therve " would like me to ask the court to instruct the jury to continue deliberations as best they can."
In response, the district court revealed more information from the jury note:
Well, let me tell you a little more about this note and see if this changes anybody's mind. The note says, " We have been 11 to 1 from the beginning. None of the 11 are changing their mind. The one holdout won't change either. We all worked very hard. We just had one holdout. We cannot convince that person to switch."
Does that change your mind?
The government replied that it did not. Defense counsel conferred with Therve and then requested clarification: " [T]he note said they are 11 to 1, and they really don't think there's any chance of a change?"
Because it is integral to understanding Therve's challenge on appeal, we quote at length from the transcript of the discussion leading up to mistrial ruling, beginning with the court's response to ...