Argued: January 29, 2019
Appeal
from the United States District Court for the District of
South Carolina, at Charleston. Timothy M. Cain, District
Judge. (2:17-cv-02814-TMC)
ARGUED:
Jason
Scott Luck, GARRETT LAW OFFICES, LLC, Charleston, South
Carolina; Sara Alexandra Turner, LAW OFFICE OF SARA A.
TURNER, LLC, Charleston, South Carolina, for Appellant.
Melody
Jane Brown, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.
ON
BRIEF:
Alan
Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.
Before
NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.
BARBARA MILANO KEENAN, CIRCUIT JUDGE
Broderick
William Seay, Jr. appeals from the district court's
denial of his petition for habeas corpus relief under 28
U.S.C. § 2241. Seay argues that his rights under the
Double Jeopardy Clause of the Fifth Amendment will be
violated if the State of South Carolina (the government)
retries him on murder charges in state court. The state trial
court granted a mistrial in the original proceedings based on
the failure of the government's critical witness to
appear at Seay's trial. In Seay's view, the
government failed to meet its burden of showing manifest
necessity for a mistrial after the jury was empaneled and
jeopardy had attached. The district court denied habeas
relief, holding that under the facts presented it was
appropriate to defer to the state trial court's finding
of manifest necessity.
Employing
"strictest scrutiny" review, we conclude that the
government failed to satisfy its high burden of showing
manifest necessity for a mistrial. The record shows that the
government allowed the jury to be empaneled knowing that the
crucial witness might not appear to testify. Additionally,
the state trial court failed to consider possible
alternatives to granting the government's mistrial
motion. We therefore vacate the district court's
judgment, and remand with instructions that the district
court award Seay habeas corpus relief.
I.
In
2015, a South Carolina grand jury indicted Seay on a charge
of murder, in violation of South Carolina Code §
16-3-10. The government alleged that two of Seay's
co-conspirators, Kevin Howard and Tyrone Drayton, kidnapped
the victim, Adrian Lyles, from his home in 2012. According to
the government, Seay later joined the group and, together
with Howard and Drayton, drove to a remote South Carolina
island where the three men shot Lyles a total of ten times in
retaliation for Lyles' work as an informant for law
enforcement authorities.
Howard
was the first co-conspirator tried for murder. At that trial,
Howard's former girlfriend, Startasia Grant, testified as
a cooperating witness for the government.[1]Most relevant
here, Grant testified that she joined Howard, Seay, and
Drayton shortly after the time that Lyles was killed. When
Grant first encountered the group, she noticed that
Howard's hand was bleeding and that the three men acted
"agitated" and "jumpy." Grant also
testified about her interactions with the men in the hours
following the murder, including her suspicion that Howard was
carrying a bag with a shotgun inside. Her testimony placed
Seay with the co-conspirators around the time of the murder.
After
hearing additional evidence in the case, the jury found
Howard guilty on the charge of murder. The state court
sentenced Howard to serve a term of life imprisonment. At the
time Grant testified at Howard's trial, she had been
charged with obstruction of justice for her role in
attempting to "cover up" the crime. However, the
government dismissed that charge after Grant testified at
Howard's trial.
More
than two years after Howard's trial, in June 2016, the
government issued a subpoena requiring Grant to testify at
Seay's trial. Pursuant to the subpoena, Grant was
directed to appear in the state trial court at 9:00 a.m. on
"each day" of the term of court beginning on
Monday, July 25, 2016. The subpoena also explained that the
prosecutor's office "may be able to give [the
witness] a more specific date and time to appear in
Court" under certain circumstances, but nothing in the
record indicates that the government advised Grant not to
appear as directed on Monday.
The
trial was scheduled to begin on the first day of that term,
Monday, July 25, 2016. Although the prosecutor and the
government's investigator spoke with Grant the weekend
before the scheduled trial, Grant did not appear as required
that Monday. For reasons unrelated to Grant's failure to
appear, the court continued the trial to the next day.
When
the court convened the following day, Tuesday, July 26, 2016,
Grant again failed to appear as required by her subpoena.
Despite the absence of this crucial witness, the government
did not seek to delay the trial, and the jury was empaneled.
The government presented testimony from eight witnesses on
the first day of trial. Meanwhile, the government's
investigator attempted to contact Grant and left multiple
messages directing her to appear in court the following
morning.
On
Wednesday, July 27, 2016, Grant once again failed to appear
in court as ordered. After the government presented the
testimony of one additional witness, the government for the
first time raised to the state trial court the issue of
Grant's nonappearance. The government informed the court
that, since speaking with Grant on Saturday, Grant had
"not been cooperative with [the prosecutor's] office
at all."[2] The state trial court issued a bench
warrant for Grant's arrest, and adjourned court until the
next day to permit law enforcement authorities to attempt to
locate her. When the court reconvened the following day,
Thursday, July 28, 2016, the authorities had not located
Grant, and she again failed to appear pursuant to the
subpoena.
The
government immediately moved for a mistrial, claiming
surprise that Grant had failed to appear as a witness. The
government further stated: "We are asking for a mistrial
because at this point we do not know if [] Grant is alive. We
do not know if she has been injured. We do not know if she is
just scared. We do not know if she has been threatened."
Seay opposed the mistrial motion, arguing that there was no
evidence that he had attempted to dissuade Grant from
testifying, and that the government had failed to meet the
manifest necessity standard required for ordering a mistrial.
After hearing further argument from counsel, the state trial
court, as part of its basis for granting the motion, stated:
"I do feel that the State has been caught by surprise. .
. . [T]he case is ongoing as of this moment. I think the
public is entitled to a fair trial as is" the defendant.
The court then granted a mistrial without any consideration
on the record of other measures that could have been taken.
Seay
later filed a motion to dismiss the indictment in state
court, asserting that the constitutional protection against
double jeopardy barred him from being retried on the state
murder charge. After the state trial court denied Seay's
motion, Seay filed a petition in the federal district court
seeking habeas corpus relief under 28 U.S.C. § 2241 on
the ground that a second trial would violate his rights under
the Double Jeopardy Clause.[3]On the recommendation of the
magistrate judge, the district court denied Seay's
petition. However, the district court granted a certificate
of appealability, and Seay now appeals to this Court.
II.
A.
We
review de novo the district court's denial of habeas
corpus relief under 28 U.S.C. § 2241. Fontanez v.
O'Brien, 807 F.3d 84, 86 (4th Cir. 2015). Because
Seay challenges his pretrial detention on double jeopardy
grounds under Section 2241, the special deference we
ordinarily accord to state court judgments under 28 U.S.C.
§ 2254 is inapplicable here. See Phillips v. Court
of Common Pleas, 668 F.3d 804, 810 (6th Cir. 2012)
(collecting cases from First, Fifth, Ninth, and Tenth
Circuits); see also Walck v. Edmondson, 472 F.3d
1227, 1235 (10th Cir. 2007). Section 2241 entitles a prisoner
to habeas corpus relief if "[h]e is in custody in
violation of the Constitution or laws or treaties of the
United States."[4] 28 U.S.C. § 2241(c)(3).
The
Double Jeopardy Clause of the Fifth Amendment, applicable to
the states through the Fourteenth Amendment, prohibits states
from subjecting a person to trial twice for the same crime.
See Crist v. Bretz, 437 U.S. 28, 32-36 (1978).
"In a jury trial, jeopardy attaches when the jury is
empaneled," after which "the defendant has a
constitutional right, subject to limited exceptions, to have
his case decided by that particular jury." United
States v. Shafer, 987 F.2d 1054, 1057 (4th Cir. 1993)
(footnote omitted). Those exceptions apply only when the
defendant's right is outweighed by "the public's
interest in fair trials designed to end in just
judgments." Id. (citation omitted).
Accordingly, when a defendant objects to a mistrial, he may
be retried only if the mistrial was "required by
'manifest necessity.'" Id. (quoting
Arizona v. Washington, 434 U.S. 497, 505 (1978));
see also Gilliam v. Foster, 75 F.3d 881, 893 (4th
Cir. 1996) (en banc).
The
government's burden of establishing manifest necessity is
"a heavy one," and is subject to especially
searching review when the government seeks a mistrial
"in order to buttress weaknesses in [its]
evidence." Arizona, 434 U.S. at 505, 507. Thus
when, as here, "the basis for the mistrial is the
unavailability of critical prosecution evidence,
"[5] we apply "the strictest
scrutiny" to the question of manifest necessity.
Id. at 508. With these principles in mind, we
proceed to consider Seay's arguments.
B.
Seay
argues that the district court erred in concluding that the
state trial court's finding of "manifest
necessity" is supported by the present record. In
Seay's view, the decision granting a mistrial fails under
strictest scrutiny review because (1) the government was
aware at the time the jury was empaneled that Grant might not
appear to testify, and (2) the state trial court failed to
consider other available alternatives.
In
response, the government relies on the state trial
court's finding that the government was "caught by
surprise" when Grant failed to appear in response to the
subpoena. According to the government, this factual finding
and the lack of any fault on the government's part
support the state trial court's determination that a
mistrial was warranted for reasons of manifest necessity. We
disagree with the government's position.
The
Supreme Court, in Downum v. United States, 372 U.S.
734, 737-38 (1963), explained that the double jeopardy
inquiry focuses on the state's knowledge at the time the
jury is empaneled. The Court emphasized that when a
prosecutor empanels a jury "without first
ascertaining" that his witnesses are present and
available to testify, the prosecutor "t[akes] a
chance."[6] Id. at 737 (quoting Cornero
v. United States, 48 F.2d 69, 71 (9th Cir. 1931)).
According to the Court, under these circumstances, the
prosecutor has "entered upon the trial of the case
without sufficient evidence to convict," thereby
assuming the risk of jeopardy attaching in the face of weak
government evidence. Id. (citation omitted). Thus,
the essence of the Court's holding in Downum is
that when a prosecutor agrees to the empaneling of a jury,
gambling that his missing witness will appear in time to
testify, the prosecutor subjects his case to a
defendant's later plea of double jeopardy. See
id. at 737-38. As the Court explicitly stated,
"[w]e resolve any doubt in favor of the liberty of the
citizen, rather than exercise what would be an unlimited,
uncertain, and arbitrary judicial discretion."
Id. at 738 (internal quotation marks and citation
omitted).
In the
present case, the record shows that the government allowed
jeopardy to attach with the awareness that Grant, a critical
government witness, might not appear to testify. The timeline
in the record is dispositive. Grant was compelled by subpoena
to appear in court for the full term of court beginning on
Monday, July 25, 2016, but she did not comply with that
directive. Nor did Grant appear the following morning on
Tuesday, July 26, 2016, before the jury was empaneled. On
Wednesday, July 27, 2016, the government informed the court
that Grant "ha[d] not been cooperative with [the
prosecutor's] office at all" after state officials
had spoken with her the Saturday before trial. The prosecutor
and state investigator had attempted to locate Grant several
times between Monday and Wednesday morning during the week of
trial, including visiting Grant's apartment and place of
employment, contacting Grant's sisters, and sending Grant
multiple text messages.
Reading
this record in its totality, two facts are apparent. First,
the government knew that its crucial witness had failed to
appear as required by subpoena for two consecutive days
before the jury was empaneled. The government nevertheless
allowed jeopardy to attach, risking the foreseeable
possibility that Grant would not appear in time to testify.
Second,
given the serious nature of the case, the government plainly
was concerned throughout the week of trial that Grant might
not appear. The government knew that its star witness was
being asked to testify against a defendant charged with
murdering a "snitch." The government also knew that
it had relinquished its leverage over Grant by dismissing the
obstruction charges that had induced Grant to testify in the
earlier trial. Indeed, one of the government's
justifications for seeking a mistrial was the speculation
that Grant had been harmed to prevent her from testifying.
Consistent with this background knowledge, as noted above,
the prosecutor and investigator took several steps to locate
Grant on Monday and Tuesday during the week of trial.
In view
of these facts, we disagree with the dissent's assertion
that the government employed a "standard procedure for
calling subpoenaed witnesses to testify in multiday
trials," and instructed Grant not to appear until the
Wednesday of trial. Dissent at 20. Although Grant's
subpoena indicated that the prosecutor's office "may
be able to" provide a more specific date for Grant's
testimony, nothing in the record suggests that the prosecutor
in fact followed such a practice with Grant. The mere fact
that the prosecutor could have done so says nothing
about what the prosecutor actually told Grant. And, notably,
the government never told the state trial court that Grant
was not required to appear on the Monday and Tuesday of trial
as commanded by her subpoena.[7] Under our "strictest
scrutiny" standard of review, we cannot construe such
absence of factual support in the record in favor of the
state.
Applying
our heightened standard of review, we conclude that the
record does not support the conclusion that the government
was surprised when Grant failed to appear to testify. We
emphasize that it was the government's heavy burden to
establish manifest necessity and to develop the record to
support such a finding, even in the dynamic context of a
murder trial. For example, the government: (1) could have
stated clearly whether it had relieved Grant of her
obligation under the subpoena to appear on Monday and
Tuesday; (2) could have clarified the timeline and contents
of state officials' communications with Grant both before
and during the trial; and (3) could have preserved on the
record the text message allegedly received by the government
investigator indicating that Grant was afraid to testify.
See supra note 2. The dissent attempts to supplement
these gaps in the record with its own speculation about what
"must" or "should" have happened, and
construes all aspects of the existing record in favor of the
government. However, bound by strictest scrutiny review, we
decline to remedy the government's failure to satisfy its
burden by inserting hypothetical "facts" into the
record.
The
heart of the constitutional protection against double
jeopardy prohibits the government from obtaining a
"second bite at the apple" when the government has
been unable to marshal sufficient evidence to convict in the
first trial. See Shafer, 987 F.2d at 1059;
Sanders v. Easley, 230 F.3d 679, 686 (4th Cir. 2000)
(at the "extreme" end of the spectrum when double
jeopardy applies "are situations in which the
prosecution seeks a mistrial in order to have additional time
to marshal evidence to strengthen the case against the
defendant"). Here, given the government's failure to
produce its own witness in a timely fashion, a mistrial was
not manifestly necessary because of surprise to the
government. Instead, the mistrial afforded the government
"a more favorable opportunity to convict" the
defendant at a new trial with the testimony of the missing
witness. Downum, 372 U.S. at 736. Accordingly, we
conclude that the government's allegation of surprise
fails to support the state trial court's finding of
manifest necessity.
Notwithstanding
this absence of surprise, the government nevertheless
maintains that the record supports the state trial
court's decision to grant a mistrial. In particular, the
government contends that the state trial court exercised a
"cautious approach" before granting a mistrial, by
continuing the trial overnight while law enforcement
authorities sought to locate the missing witness.
Accordingly, the government argues that because Grant
"was such a critical witness, and the remaining
witnesses to be called in the case in chief depended on her
testimony, it is difficult to see an actual, viable,
sufficient alternative available" to the state trial
court. We disagree with the government's position.
In
determining whether the government has satisfied its burden
to show manifest necessity, "the critical inquiry is
whether less drastic alternatives were available."
Shafer, 987 F.2d at 1057; see also United States
v. Jorn, 400 U.S. 470, 487 (1971) (plurality opinion)
(manifest necessity did not exist when trial judge gave
"no consideration . . . to the possibility of a trial
continuance" instead of a mistrial). When such
alternatives are available, "society's interest in
fair trials designed to end in just judgments [is] not in
conflict with the defendant's right to have the case
submitted to the jury." Shafer, 987 F.2d at
1057 (internal citation and quotation marks omitted).
And
when, as here, the strictest scrutiny standard of review
applies, the trial court's consideration of reasonable
alternatives is a central factor in our heightened review of
manifest necessity. All alternative options must be
evaluated, and all reasonable choices exhausted, before the
government may reap the benefit of a second opportunity to
prove a defendant's guilt. We thus agree with our sister
circuits' conclusion that, applying strictest scrutiny
review, the government must demonstrate that the trial court
gave "careful consideration" to the availability of
reasonable alternatives to a mistrial, and that the court
concluded that none were appropriate. United States v.
Fisher, 624 F.3d 713, 722 (5th Cir. 2010); see also
Walck, 472 F.3d at 1240; United States v.
Rivera, 384 F.3d 49, 56 (3d Cir. 2004). If the trial
court's assessment of reasonable alternatives does not
appear on the record, a finding of manifest necessity will
not be upheld under the lens of strictest
scrutiny.[8] See Fisher, 624 F.3d at 723.
In the
present case, as discussed above, Grant failed to comply with
the terms of her subpoena, which required her to appear for
court on Monday, July 25, 2016, Tuesday, July 26, 2016, and
Wednesday, July 27, 2016. After Grant did not appear on those
days, despite the government's multiple attempts to
contact her, the state trial court issued a bench warrant for
her arrest on Wednesday, July 27, 2016, and adjourned the
trial until the following morning. The government requested a
mistrial shortly after the court reconvened on Thursday, July
28, 2016, on the basis that law enforcement authorities had
been unable to locate Grant. After oral argument, the court
granted the mistrial.[9]
While
the state trial court explained its rationale for granting
the motion, the record before us does not show that the court
considered any available alternatives before granting the
government's mistrial motion. For example, the court did
not discuss why it did not continue the trial one additional
day, or over the weekend until the following Monday, August
1, 2016, to give law enforcement authorities additional time
to locate Grant. Likewise, the court failed to discuss why it
did not require the government, which had 18 remaining
witnesses listed for the case, to present testimony from some
of those witnesses while the efforts to locate Grant
continued.[10] Thus, the record contains no analysis of
potential alternatives to a mistrial as required by our
precedent. Without considering the viability of possible
alternatives, the "drastic" step of declaring a
mistrial is not supported by the record. See Shafer,
987 F.2d at 1057; Rivera, 384 F.3d at 56 (holding
that a trial court "must exercise prudence and care,
giving due consideration to reasonably available alternatives
to the drastic measure of a mistrial").
We
therefore conclude that the state trial court erred in
finding manifest necessity for a mistrial, and that the
district court erroneously accorded deference to that
decision. In doing so, we "resolve any doubt in favor of
the liberty of the citizen," who was defending against
the charged offense when the state trial court abruptly ended
the trial and dismissed the jury. Downum, 372 U.S.
at 738 (internal quotation marks omitted).
Finally,
we emphasize that this case sharply illustrates the
consequences of the government's too ready reliance on
the short-term solution of a mistrial to solve a common trial
predicament. The clear loser in this scenario is the public,
which had a strong interest in having Seay tried under the
murder indictment. However, as a result of the
government's ill-advised request for a mistrial, approved
by the state trial court without consideration of existing
...