United States v. James Hendrix ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 12 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30021
Plaintiff-Appellee, D.C. No.
2:19-cr-00024-JLR-1
v.
JAMES J. HENDRIX, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted March 4, 2021
Seattle, Washington
Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,** Senior
District Judge.
Appellant James J. Hendrix (Hendrix) appeals the district court’s order
denying his motion to dismiss a superseding indictment charging him with felon in
possession of a firearm, possession of methamphetamine with intent to distribute,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Morrison C. England, Jr., Senior United States District
Judge for the Eastern District of California, sitting by designation.
possession of methamphetamine and heroin with intent to distribute, and
possession of firearms in furtherance of a drug trafficking offense. The jury
convicted Hendrix of two lesser-included charges of possession of a controlled
substance, but was unable to reach a unanimous verdict on the remaining charges.1
Hendrix contends that the district court erred in holding that the government was
not barred by the Double Jeopardy Clause of the Fifth Amendment from retrying
Hendrix on the greater offenses of possession of methamphetamine and heroin
with intent to distribute.
The district court sufficiently determined that the jury was deadlocked, and
that manifest necessity warranted a mistrial. “In determining whether to declare a
mistrial because of jury deadlock, relevant factors for the district court to consider
include the jury’s collective opinion that it cannot agree, the length of the trial and
complexity of the issues, the length of time the jury has deliberated, whether the
defendant has objected to a mistrial, and the effects of exhaustion or coercion on
the jury. The most critical factor is the jury’s own statement that it [was] unable to
reach a verdict.” United States v. Hernandez-Guardado, 228 F.3d 1017, 1029 (9th
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Hendrix acknowledges that the felon in possession of a firearm counts
were bifurcated at trial, and are not at issue in the present appeal.
2
Cir. 2000) (citations and internal quotation marks omitted).2 In its order denying
Hendrix’s motion to dismiss the indictment, the district court properly held that a
mistrial was warranted because: (1) the trial was “modestly complex”; (2) the jury
was deadlocked after only four hours of deliberation; (3) the jury remained
deadlocked approximately five hours after receiving an Allen3 charge; (4) “after
roughly eight and a half hours of deliberations[,] one juror advised court staff in
front of the rest of the jury that she was being insulted for her views, and she
wanted it to stop”; (5) the jury “reached a partial verdict and confirmed with the
court that they were deadlocked less than a half hour later”; and (6) neither counsel
objected to the declaration of a mistrial. Under these circumstances, the district
court did not abuse its discretion in declaring a mistrial based on the jury’s
inability to reach a unanimous verdict. See Harrison v. Gillespie, 640 F.3d 888,
901 (9th Cir. 2011) (en banc), as amended (articulating that “[u]ndisputably, a
retrial following a hung jury does not violate the Double Jeopardy Clause, and a
2
Hendrix places great emphasis on our statement in Hernandez-Guardado
that “the district court must question the jury to determine independently whether
further deliberations might overcome the deadlock.” Hernandez-Guardado, 228
F.3d at 1029 (citation omitted). Although the district court did not use the exact
language articulated in Hernandez-Guardado or the “suggested script” in Ninth
Circuit Model Criminal Jury Instruction 7.8, the district court thoroughly
considered the applicable factors in determining that manifest necessity warranted
a mistrial in light of the jury’s acknowledgment that it was deadlocked.
3
Allen v. United States, 164 U.S. 492 (1896).
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trial judge may discharge a genuinely deadlocked jury and require the defendant to
submit to a second trial”) (citations and internal quotation marks omitted).
The jury did not impliedly acquit Hendrix of the greater offenses of
possession of methamphetamine and heroin with intent to distribute. “An implied
acquittal occurs when a jury returns a guilty verdict as to a lesser included or lesser
alternate charge, but remains silent as to other charges, without announcing any
signs of hopeless deadlock.” United States v. Jefferson, 566 F.3d 928, 935 (9th
Cir. 2009) (citation omitted) (emphasis added). After the jury indicated that it was
struggling to reach a unanimous verdict, the district court instructed the jury to
“complete the portions of the verdict form that [it was] able to reach unanimous
agreement on and do nothing in regards to the ones that [it could not] reach
unanimous agreement on.” The jury subsequently conveyed that it “reached a
verdict on two charges,” and completed the verdict form in accordance with the
district court’s instructions. As a result, the jury did not impliedly acquit Hendrix
of the greater offenses of possession of methamphetamine and heroin with intent to
distribute. See id.Contrary to Hendrix’s assertions, the district court declared a mistrial on the
greater offenses charged in counts three and six of the superseding indictment.
Hendrix did not object during the proceedings to the manner in which the district
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court declared a mistrial, and the district court accepted the jury’s verdicts
concerning the lesser-included offenses of possession of controlled substances.
The district court explained that it was unable to declare a mistrial on counts three
and six in the same manner that it did with respect to the other counts because “that
would have invalidated the jury’s unanimous verdict on the lesser included
offenses.”
AFFIRMED.
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