Opinion
21-50244
10-31-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LIZBETH CITLADY REYES-HERNANDEZ, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted October 3, 2022 Pasadena, California
Appeal from the United States District Court for the Southern District of California DC No. 3:21-cr-01502-BAS Cynthia A. Bashant, District Judge, Presiding
Before: TASHIMA and LEE, Circuit Judges, and FREUDENTHAL, [**] District Judge.
MEMORANDUM [*]
Lizbeth Citlady Reyes-Hernandez appeals the district court's denial of her motion to dismiss the indictment against her on double jeopardy grounds. We review de novo a denial of a motion to dismiss an indictment, United States v. Bates, 917 F.2d 388, 392 (9th Cir. 1990), and for abuse of discretion a finding of manifest necessity for a mistrial, United States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008). We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. See Richardson v. United States, 468 U.S. 317, 321-22 (1984); United States v. Price, 314 F.3d 417, 420 (9th Cir. 2002). We affirm.
Where a district court declares a mistrial after jeopardy has attached and without the defendant's consent, re-prosecution of the defendant is barred unless the mistrial was justified by "manifest necessity." Arizona v. Washington, 434 U.S. 497, 505 (1978). In reviewing a district court's finding of manifest necessity, we analyze the procedures it employed, including whether it (1) heard the opinions of the parties about the propriety of a mistrial, (2) considered alternatives to a mistrial and chose the least harmful one to the defendant's rights, and (3) acted deliberately instead of abruptly. Chapman, 524 F.3d at 1082 (citing Bates, 917 F.2d at 396). Finally, the district court must base its judgment on the evidence in the record. Chapman, 524 F.3d at 1082 . Substantial deference is due to the district court's decision. Bates, 917 F.2d at 394.
Bates also presents a fourth factor: the benefit to a defendant of a mistrial. 917 F.2d at 396. We do not consider this factor here because the first three Bates factors support our determination that the district court did not abuse its discretion in granting a mistrial. See Chapman, 524 F.3d at 1082 n.3. In any event, as Reyes-Hernandez acknowledges, neither party received an advantage from being able to preview the other party's case.
The district court here employed the proper procedures and did not abuse its discretion in granting a mistrial on manifest necessity grounds. In a lengthy discussion with the parties, during which both parties were afforded an opportunity to present their opinions on the propriety of a mistrial, the court considered several alternatives to a mistrial. It reasonably determined there were none because Reyes-Hernandez objected to proceeding with 11 jurors, both parties objected to issuing a warrant for the absent juror's arrest, the court's phone call to the absent juror was unsuccessful, and the various logistical options proposed for bringing the absent juror back to court were impracticable. On this record, the district court reasonably determined that declaring a mistrial was the option least harmful to Reyes-Hernandez's rights, and it acted deliberately instead of abruptly in so concluding.
Finally, the district court's judgment was based on evidence in the record. The court ensured that the email from the absent juror was entered into the record. Additionally, the discussion as to the possible paths forward was part of the record; it was accurately summarized by the district court during a hearing on the motion to dismiss, and provided the basis for the court's finding of manifest necessity.
In sum, the district court acted within its discretion in concluding that there was manifest necessity for a mistrial; thus, it did not err in denying Reyes-Hernandez's motion to dismiss the indictment.
AFFIRMED.
[*]This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation.