Petition for Writ of Certiorari — Nolan Espinda, Director, Hawaii Department of Public Safety, et al., Petitioners v. Royce C. Gouveia

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROYCE C. GOUVEIA,

Petitioner-Appellee,

v.

NOLAN P. ESPINDA, Warden,

Director of the Department

of Public Safety for the State

of Hawaii; CLARE CONNORS,

Attorney General of the

State of Hawaii,

Respondents-Appellants.

No. 17-16892

D.C. No.

1:17-cv-00021SOM-KJM

OPINION

Appeal from the United States District Court

for the District of Hawaii

Susan O. Mollway, District Judge, Presiding

Argued and Submitted October 12, 2018

Honolulu, Hawaii

Filed June 12, 2019

Opinion by Judge Berzon

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SUMMARY*

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Habeas Corpus

The panel affirmed the district court’s judgment

granting Royce Gouveia’s 28 U.S.C. § 2241 habeas corpus

* This summary constitutes no part of the opinion of the

court. It has been prepared by court staff for the convenience of

the reader.

App. 2

petition challenging the trial court’s grant of a mistrial

in his Hawaii manslaughter case in which, after the

jury reached a verdict but before the verdict was announced, jurors expressed concern for their safety because of a scary-looking man in the courtroom.

The panel held that the Rooker-Feldman doctrine

does not preclude a federal district court from exercising jurisdiction under § 2241. The panel did not need

to determine precisely what level of deference is owed

to the trial court’s determination that there was manifest necessity for a mistrial. The panel held that even

under a more deferential standard, the trial court’s

manifest-necessity determination was erroneous because the trial court failed to provide any meaningful

consideration of alternatives to mistrial. The panel

concluded that the district court therefore did not err

in concluding that retrying Gouveia would violate the

Double Jeopardy Clause.

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COUNSEL

Donn R. Fudo (argued), Deputy Prosecuting Attorney,

Honolulu, Hawaii, for Respondents-Appellants.

Peter C. Wolff, Jr. (argued), Federal Public Defender,

Honolulu, Hawaii, for Petitioner-Appellee.

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OPINION

BERZON, Circuit Judge.

Jurors in Royce Gouveia’s trial saw a menacinglooking man on the prosecution side of the courtroom

App. 3

before they retired to deliberate. The jury proceeded to

deliberate and reached a verdict. Before the verdict

was announced, however, jurors expressed concern for

their safety because of the scary-looking man. All the

jurors stated that their verdict was unaffected by the

man’s presence. Nonetheless, the trial court, at the

prosecution’s request and against Gouveia’s opposition, granted a mistrial. On federal habeas review, the

district court held that there was no manifest necessity

for the mistrial, so retrying Gouveia would violate his

right not to be subjected to double jeopardy. We agree.

I

Gouveia was tried for manslaughter in Hawaii

state court for the death of Albert Meyer. See Haw. Rev.

Stat. § 707-702(1)(a). The testimony was that Gouveia

struck Meyer during an altercation, and Meyer died after hitting his head on the pavement. The presentation

of evidence concluded, both sides gave closing arguments, and the jury was sent off to deliberate.

This case turns on two notes the jury sent to the

trial court in close succession. The first informed the

court that the jury had “reached a verdict.” A second,

drafted a few minutes after the verdict message,

stated: “Concern. This morning on prosecutor’s side of

courtroom there was a man, shaved head, glaring and

whistling at defendant. We have concern for our safety

as jurors.”

After receiving the messages, the trial court gathered the attorneys and informed them about the notes.

App. 4

Explaining that it was inclined “to take no action on

this,” the trial court asked the parties what approach

they suggested. The prosecution requested that the jurors be questioned, and Gouveia’s attorney agreed.

The court then conducted individual voir dire of

each juror. Before beginning, the court asked the attorneys whether they “ha[d] any idea what this is based

on.” The prosecution noted that Meyer’s brother had

been in the courtroom that morning “with [a] shaved

head” and appeared “pretty upset.”

The trial court proceeded to question each juror.

Although a few testified that the man seemed angry

and that they were afraid for their safety, all twelve

jurors stated that the menacing-looking man’s presence had not affected their votes. The jurors gave conflicting testimony as to when the safety concern about

the shaved-headed man first came up in deliberations,

some saying at the outset, others toward the end, and

others only after the verdict was reached. One juror

stated, “Yes,” when asked whether the fear of the man

“impact[ed] other people’s decision,” but did not elaborate as to how she knew that or what the impact was.

But she, like all the others, said her own decision was

unaffected.

After questioning the jury, the trial court asked

Gouveia’s attorney whether he wanted the court to

take any additional steps; the attorney declined. The

prosecution, however, moved for a mistrial, arguing that

there was manifest necessity for a mistrial because

App. 5

some jurors had expressed safety concerns.1 According

to the prosecution, the fact that Meyer’s brother was

“associate[d] with the prosecution and the decedent side”

might have “lended more credibility to Mr. Gouveia’s

testimony as he testified.” Gouveia’s attorney opposed

the motion, stressing that all the jurors had stated that

their own votes had been unaffected by the incident,

and that no jurors had expressed to the court any concern about the individual until it was announced that

a verdict had been reached.

After a bit more discussion, the trial court granted

the mistrial motion:

I find it difficult to really believe when I . . .

apply my reason and common sense to this

that at least some of these jurors have . . .

what strikes me as a really serious concern for

their personal safety and it came up according

to, at least as I count, four or five of them, it

. . . was . . . one of the first topics of discussion

when they got back in the room and started

deliberating the case. Somebody brought it up

and they started talking about it. It frankly

beggars my reason and common sense that it

would have no bearing on the deliberations in

this case and therefore the verdict.

I’m going to grant the State’s motion for

mistrial. I’m going to find there’s manifest

1

Initially, the prosecution requested a mistrial “in an abundance of caution.” The trial court then noted, “If you’re going to

move for mistrial, you better ask me to find manifest necessity,”

after which the prosecution rephrased its motion to include a request for a manifest-necessity determination.

App. 6

necessity for such based on what I said . . .

and everything else that’s been put on the record, including my questions to counsel.

The verdict’s going to be sealed for future

purposes, if any, but obviously we’re not going

to take the verdict. I’m declaring a mistrial

and I’m finding manifest necessity for that,

because I don’t think there’s anything short of

a mistrial . . . that can cure it. The verdict’s

tainted, in my view, based on my findings.

A few weeks later, the trial court issued findings

of facts and conclusions of law to further explain its

decision. The court reasoned that “[a]lthough there

[was] no specific juror misconduct” in this case, it

would adopt “the well-established ‘harmless beyond a

reasonable doubt’ standard” for juror-misconduct claims.

Relying on that standard, the trial court found that

“the jurors’ statements that the incident did not affect

their decision-making process and/or deliberations

[were] not credible,” and reiterated its prior conclusion

that “the jury was not impartial” and that “there [was]

manifest necessity for a mistrial.”

Gouveia moved to dismiss the prosecution, contending that there was no manifest necessity for the

mistrial. The constitutional double jeopardy protection, Gouveia maintained, would be violated were he

retried. The trial court denied the motion.

When Gouveia appealed the trial court’s manifestnecessity finding, the appellate court unsealed the verdict form for purposes of the appeal. The form revealed

that the jury had unanimously found Gouveia not

App. 7

guilty. State v. Gouveia (Gouveia I), No. CAAP-140000358, 2015 WL 2066780, at *7 (Haw. Ct. App. Apr.

30, 2015). The state appellate court affirmed, with one

judge dissenting. Id. at *11; see also id. at *11–13

(Nakamura, C.J., dissenting). The Hawaii Supreme

Court granted discretionary review, but then affirmed

over one justice’s dissent. State v. Gouveia (Gouveia II),

384 P.3d 846, 852–53 (Haw. 2016); see also id. at 857

(Nakayama, J., dissenting). The state high court held

that the trial court “did not abuse its discretion in

deciding that manifest necessity existed for a mistrial

because the presumption of prejudice could not be

overcome beyond a reasonable doubt and no reasonable alternatives to a mistrial were available.” Id. at 853

(majority opinion).

Gouveia then filed a federal habeas petition. He

argued that there was no manifest necessity for a mistrial and that the jury’s verdict form, now unsealed,

precluded Hawaii from retrying him. The district court

granted the petition. Gouveia v. Espinda (Gouveia III),

No. 17-00021 SOM/KJM, 2017 WL 3687309, at *1

(D. Haw. Aug. 25, 2017). It concluded, first, that jurisdiction under 28 U.S.C. § 2254 was not appropriate,

as “Gouveia is not currently ‘in custody pursuant to the

judgment of a State court,’ ” but that it did have jurisdiction under § 2241. Id. at *5 (quoting 28 U.S.C.

§ 2254(d)). The district court then rejected the state’s

contentions that the Rooker-Feldman doctrine or

Younger abstention precluded the court from exercising jurisdiction over Gouveia’s habeas petition. Id. at

*6–7.

App. 8

On the merits, the district court determined that

the now-unsealed verdict form was not an acquittal for

purposes of double jeopardy. Id. at *10–12. The court

first recited several reasons why the trial court’s conclusion that the jurors were affected was questionable.

Id. at *14. Ultimately, the district court held that, accepting the trial court’s jury taint conclusion, Gouveia

was entitled to habeas relief. Id. at *15. Alternative

remedies for any valid concerns as existed were available, the district court reasoned, so there was no manifest necessity for a mistrial and retrying Gouveia

would violate the Double Jeopardy Clause. Id. at *15–

17.

Hawaii timely appealed, challenging the district

court’s exercise of jurisdiction as well as its decision on

the merits.

II

We begin with the jurisdictional point: The state

argues that, under the Rooker-Feldman doctrine, the

district court was barred from exercising jurisdiction

under 28 U.S.C. § 2241 over Gouveia’s habeas petition.

We have not directly addressed the precise question

whether Rooker-Feldman applies to habeas petitions

filed under § 2241, although two other circuits have

held that it does not. See Reitnauer v. Tex. Exotic Feline

Found., Inc. (In re Reitnauer), 152 F.3d 341, 343 n.8

(5th Cir. 1998); Garry v. Geils, 82 F.3d 1362, 1365 n.4

(7th Cir. 1996). Our gap on this point is understandable,

App. 9

as it is rare that we are asked to address an argument

so transparently without merit.

The Rooker-Feldman doctrine takes its name from

a pair of cases—Rooker v. Fidelity Trust Co., 263 U.S.

413 (1923), and District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462 (1983)—both “brought by

state-court losers complaining of injuries caused by

state-court judgments rendered before the district

court proceedings commenced and inviting district

court review and rejection of those judgments.” Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

284 (2005). The doctrine holds that “a federal district

court does not have subject matter jurisdiction to hear

a direct appeal from the final judgment of a state

court.” Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003).

“Direct federal appellate review of state court decisions

must occur, if at all, in the Supreme Court.” Gruntz v.

County of Los Angeles (In re Gruntz), 202 F.3d 1074,

1078 (9th Cir. 2000) (en banc).

Rooker-Feldman is not a constitutional directive

but rather “a statute-based doctrine, based on the

structure and negative inferences of the relevant statutes rather than on any direct command of those statutes.” Noel, 341 F.3d at 1154–55. In particular, the

doctrine is an interpretation of two statutes: 28 U.S.C.

§ 1331, which establishes district courts’ original jurisdiction, and 28 U.S.C. § 1257, which vests jurisdiction

to review most state court decisions solely in the U.S.

Supreme Court. See Gruntz, 202 F.3d at 1078. “The

Rooker-Feldman doctrine merely recognizes that 28

U.S.C. § 1331 is a grant of original jurisdiction, and

App. 10

does not authorize district courts to exercise appellate

jurisdiction over state-court judgments, which Congress has reserved to [the Supreme] Court.” Verizon

Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 644 n.3

(2002).

Because the Rooker-Feldman principle is purely

statutory, “Congress, if so minded, may explicitly empower district courts to oversee certain state-court

judgments.” Exxon Mobil, 544 U.S. at 292 n.8. Put differently, Congress may, via statute, provide federal district courts with jurisdiction to review state court

decisions as long as that jurisdiction is conferred in addition to the original jurisdiction established under

§ 1331. And Congress “has done so, most notably, in authorizing federal habeas review of state prisoners’ petitions.” Id. We have accordingly recognized that “[i]t is

well-settled that the Rooker-Feldman doctrine does not

touch the writ of habeas corpus,” as the writ is “a procedure with roots in statutory jurisdiction parallel to—

and in no way precluded by—the [Rooker-Feldman]

doctrine.” Gruntz, 202 F.3d at 1079.

Gruntz considered whether habeas review under

28 U.S.C. § 2254, covering “writ[s] of habeas corpus in

behalf of a person in custody pursuant to the judgment

of a State court,” 28 U.S.C. § 2254(a), is limited by

Rooker-Feldman. Gouveia is not currently in custody

under a state court judgment, see Gouveia III, 2017 WL

3687309, at *5–6, so the district court considered the

habeas petition under 28 U.S.C. § 2241, not under

§ 2254. But the principles underlying Gruntz still apply. Applying those principles, Rooker-Feldman does

App. 11

not preclude a federal district court from exercising jurisdiction under 28 U.S.C. § 2241, if that statute, like

§ 2254, confers jurisdiction in addition to the original

jurisdiction already conferred by 28 U.S.C. § 1331. It

does.

Section 2241 provides that “[w]rits of habeas corpus may be granted by . . . the district courts . . . within

their respective jurisdictions” for prisoners “in custody

in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2241(a), (c)(3). Relying

on this grant of jurisdiction, this court has consistently

held that § 2241 confers jurisdiction for “habeas petition[s] raising a double jeopardy challenge to a petitioner’s pending retrial in state court.” Wilson v.

Belleque, 554 F.3d 816, 821 (9th Cir. 2009).

The first case so to hold was Stow v. Murashige,

389 F.3d 880 (9th Cir. 2004). Like the case at hand,

Stow concerned a petitioner whose double jeopardy

claim had been rejected by the state supreme court. Id.

at 885. The petitioner then filed a federal habeas petition under § 2254, arguing that the state supreme

court’s conclusion was incorrect. Id. The district court

granted the petition. Id. Stow affirmed the district

court’s grant of habeas corpus but, before doing so, explained that the petitioner’s petition, “which raised a

double jeopardy challenge to his pending retrial,” was

“properly treated under § 2241,” not § 2254. Id. at 885–

87.

App. 12

We have repeatedly reaffirmed Stow’s holding.2

Stow and its progeny make clear that, as in the § 2254

habeas context considered in Gruntz, jurisdiction in

the § 2241 habeas context derives from the federal habeas statutes, not from § 1331. The upshot is that

§ 2241, like § 2254, provides “a procedure with roots in

statutory jurisdiction parallel to—and in no way precluded by—the [Rooker-Feldman] doctrine.” Gruntz,

202 F.3d at 1079.

In light of Gruntz, Hawaii acknowledges, as it

must, that Rooker-Feldman is inapplicable to federal

habeas claims filed under § 2254. But the state argues

that unlike § 2254, § 2241 does not confer jurisdiction

to review state court decisions. Why? Because § 2241

lacks the word “judgment.” Cf. 28 U.S.C. § 2254(a)

(“[A] district court shall entertain an application for a

writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”

2

See, e.g., Dominguez v. Kernan, 906 F.3d 1127, 1135 n.10

(9th Cir. 2018) (“A pretrial double jeopardy challenge . . . ‘is

properly brought under § 2241.’ ” (quoting Stow, 389 F.3d at 886));

Harrison v. Gillespie, 640 F.3d 888, 896 (9th Cir. 2011) (en banc)

(“Our precedent makes clear that 28 U.S.C. § 2241 is the proper

vehicle for asserting a double jeopardy claim prior to (or during

the pendency of ) a successive trial.”); Wilson, 554 F.3d at 821 (“[A]

habeas petition raising a double jeopardy challenge to a petitioner’s pending retrial in state court is properly treated as a petition filed pursuant to 28 U.S.C. § 2241.”); Hoyle v. Ada County,

501 F.3d 1053, 1058 (9th Cir. 2007) (“28 U.S.C. § 2241 . . . empowers district courts to provide habeas relief on pretrial double jeopardy challenges. . . .”).

App. 13

(emphasis added)). This argument has no merit, for

two reasons.

First, the state’s argument confuses the relationship between the two habeas corpus statutes. Section

2254 “is not itself a grant of habeas authority, let alone

a discrete and independent source of post-conviction

relief.” Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.

2008) (en banc) (quoting Medberry v. Crosby, 351 F.3d

1049, 1060 (11th Cir. 2003)).3 “Instead, it is § 2241 that

provides generally for the granting of writs of habeas

corpus by federal courts, implementing ‘the general

grant of habeas authority provided by the Constitution.’ ” Id. (quoting White v. Lambert, 370 F.3d 1002,

1006 (9th Cir. 2004)). Overlaying that general grant of

jurisdiction, § 2254 “implements and limits the authority granted in § 2241 for ‘a person in custody pursuant

to the judgment of a State court.” Id. (quoting 28 U.S.C.

§ 2254(a)). Thus, just as habeas review under § 2254 is

“a procedure with roots in statutory jurisdiction parallel

to—and in no way precluded by—the [Rooker-Feldman]

3

This conception of § 2254 accords with the history of the

habeas corpus statutes. Section 2241 codified the general grant of

habeas corpus jurisdiction conferred by Congress in 1867. See

Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal

Courts and the Federal System 1197 (7th ed. 2015); see also Medberry, 351 F.3d at 1055. Section 2254 was added in its original

form in 1948 to add requirements “dealing specifically with challenges to custody resulting from conviction in state court.” Fallon

et al., supra, at 1197. The present § 2254, placing further constraints on federal habeas review of state court convictions, was

added as part of the Antiterrorism and Effective Death Penalty

Act of 1996. Id. at 1197–98; see also Williams v. Taylor, 529 U.S.

362, 402 (2000).

App. 14

doctrine,” Gruntz, 202 F.3d at 1079, so review under

§ 2241 too is necessarily unaffected by Rooker-Feldman.

Second, and relatedly, the state’s argument badly

misunderstands the relationship between the writ of

habeas corpus and state court judgments. A habeas

court does not review a state court judgment.4 Rather,

“[h]abeas lies to enforce the right of personal liberty;

when that right is denied and a person confined, the

federal court has the power to release him. Indeed, it

has no other power; it cannot revise the state court

judgment; it can act only on the body of the petitioner.”

Fay v. Noia, 372 U.S. 391, 430–31 (1963), overruled in

part on other grounds by Wainwright v. Sykes, 433 U.S.

72 (1977). “ ‘[T]he essence of habeas corpus is an attack

by a person in custody upon the legality of that custody,’ not necessarily a challenge to a judgment.”

Dominguez, 906 F.3d at 1137 (alteration in original)

(citation omitted) (quoting Preiser v. Rodriguez, 411

U.S. 475, 484 (1973)). For that reason, the writ does not

empower a habeas court to modify a state court judgment. See Lujan v. Garcia, 734 F.3d 917, 935 (9th Cir.

2013); Douglas v. Jacquez, 626 F.3d 501, 504 (9th Cir.

2010).

To be sure, under § 2254, a habeas court does

“oversee certain state-court judgments,” Exxon Mobil,

544 U.S. at 292 n.8 (emphasis added), by assessing, in

4

Some of our cases have been less than precise about this

point, describing § 2254 as “provid[ing] expressly for federal collateral review of final state court judgments.” Gruntz, 202 F.3d at

1079; see also, e.g., Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir.

2006); Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004).

App. 15

the context of custody pursuant to a judgment, whether

those judgments “resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States,” or were “based

on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d). For that reason, “§ 2254 requires a nexus between ‘the judgment of a State court’

and the ‘custody’ the petitioner contends is ‘in violation

of the Constitution or laws or treaties of the United

States.’ ” Dominguez, 906 F.3d at 1136 (quoting 28

U.S.C. § 2254(a)). But even with that requirement,

§ 2254 petitions need not “present a challenge to the

underlying state court judgment,” as long as “the custody complained of is attributable in some way to the

underlying state court judgment.” Id. at 1137. A § 2254

petition may challenge, for example, the loss of goodtime credits, see Preiser, 411 U.S. at 487, or the revocation of parole, see Spencer v. Kemna, 523 U.S. 1, 7

(1998), even though those claims do not challenge the

underlying state court judgment.

In sum, the additional jurisdictional grant provided

by § 2241—separate and apart from the jurisdiction

conferred under § 1331—means that Rooker-Feldman

is not pertinent. Accordingly, the district court correctly held the Rooker-Feldman doctrine inapplicable

here.

App. 16

III

We turn to the merits of the double jeopardy question.

The Double Jeopardy Clause provides that “[n]o

person shall . . . be subject for the same offence to

be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. The Clause embodies the principle that “the

State with all its resources and power should not be

allowed to make repeated attempts to convict an individual for an alleged offense.” Green v. United States,

355 U.S. 184, 187 (1957). And “[b]ecause jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant’s

‘valued right to have his trial completed by a particular

tribunal.’ ” Arizona v. Washington, 434 U.S. 497, 503

(1978) (quoting Wade v. Hunter, 336 U.S. 684, 689

(1949)).

But that principle “does not mean that every time

a defendant is put to trial before a competent tribunal

he is entitled to go free if the trial fails to end in a final

judgment.” Wade, 336 U.S. at 688. “[A] mechanical rule

prohibiting retrial whenever circumstances compel the

discharge of a jury without the defendant’s consent,”

the Supreme Court has explained, “would be too high

a price to pay for the added assurance of personal security and freedom from governmental harassment

which such a mechanical rule would provide.” Washington, 434 U.S. at 505 n.16 (quoting United States v.

Jorn, 400 U.S. 470, 479–80 (1971) (plurality opinion)).

Rather, “a defendant’s valued right to have his trial

App. 17

completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair

trials designed to end in just judgments.” Wade, 336

U.S. at 689.

Recognizing these competing interests, Justice

Story wrote in a seminal double jeopardy case in 1824

that retrial may be permitted after a mistrial only

where a trial court determines that, “taking all the circumstances into consideration, there is a manifest necessity for [a mistrial], or the ends of public justice

would otherwise be defeated.” United States v. Perez,

22 U.S. (9 Wheat.) 579, 580 (1824). Perez concerned the

circumstances in which a deadlocked jury could support a trial court’s determination that there was such

“manifest necessity.” Id. at 579–80. Since then, the

same term—“manifest necessity”—has been used in “a

wide variety of cases,” beyond the deadlocked jury situation, to encapsulate the circumstances in which “any

mistrial declared over the objection of the defendant”

is permissible without triggering the double jeopardy

protection. Washington, 434 U.S. at 505–06.

Under the manifest-necessity standard, “a trial

can be discontinued when particular circumstances

manifest a necessity for so doing, and when failure to

discontinue would defeat the ends of justice.” Wade,

336 U.S. at 690. For purposes of assessing whether that

standard is met, “the key word ‘necessity’ cannot be interpreted literally; instead, . . . there are degrees of

necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” Washington,

434 U.S. at 506. To establish a manifest necessity, “the

App. 18

prosecutor must shoulder the burden of justifying the

mistrial,” and “[h]is burden is a heavy one.” Id. at 505.

That heavy burden has not been met here, as we shall

explain.

A

Because our review proceeds under § 2241, the

deference owed to a state court under § 2254(d) is not

applicable. See Harrison, 640 F.3d at 897. Instead, we

apply the same standard of review as applied on direct

appeal. See id.

“A judicial determination of manifest necessity is

reviewed for abuse of discretion, but the level of deference varies according to the circumstances in each

case.” United States v. Chapman, 524 F.3d 1073, 1082

(9th Cir. 2008); see also Washington, 434 U.S. at 507–

09. “At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his

evidence,” for which “the strictest scrutiny is appropriate.” Washington, 434 U.S. at 507–08. “At the other extreme is the mistrial premised upon the trial judge’s

belief that the jury is unable to reach a verdict.” Id. at

509. Similarly, “[a] trial judge properly exercises his

discretion to declare a mistrial if an impartial verdict

cannot be reached, or if a verdict of conviction could be

reached but would have to be reversed on appeal due

to an obvious procedural error in the trial.” Illinois v.

Somerville, 410 U.S. 458, 464 (1973). In those situations, “[t]he trial judge’s decision to declare a mistrial

. . . is . . . accorded great deference by a reviewing

App. 19

court.” Washington, 434 U.S. at 510. “Nevertheless, because the mistrial decision affects a constitutionally

protected right, ‘reviewing courts have an obligation to

satisfy themselves that . . . the trial judge exercised

“sound discretion” in declaring a mistrial.’ ” United

States v. Sanders, 591 F.2d 1293, 1297 (9th Cir. 1979)

(quoting Washington, 434 U.S. at 514).

Here, it is highly debatable how much deference is

owed to the trial court’s determination that there was

manifest necessity for a mistrial. To begin, there was

no deadlocked jury—the jury said it had reached a

unanimous verdict. Cf. Perez, 22 U.S. (9 Wheat.) at 580.

Nor does this appear to be a case in which, had the

jury verdict favored the prosecution and a judgment in

accord with the verdict been entered, the verdict would

have been reversible on appeal on account of potential

juror bias. Cf. Somerville, 410 U.S. at 464. Although one

juror suggested that other jurors may have been affected by the presence of Meyer’s brother, each individual juror testified that that [sic] his presence did not

affect his or her own decision. There is no indication

that Meyer’s brother spoke with, or threatened, any juror in or out of the courtroom. The jury’s note pointed

only to his “shaved head” and the fact that he was

“glaring and whistling at [Gouveia]” as the basis for

their concern. And nothing in the record indicates that

the jurors knew his connection to the trial—that is,

that he was Meyer’s brother. Nor did the presence of

Meyer’s brother provide any extrinsic information to

the jury. In short, the circumstances here appear to fall

App. 20

short of the cases in which we have reversed a conviction for alleged juror bias or taint.5

So we have here none of the paradigmatic situations in which we accord great deference to the trial

judge as to the manifest necessity for a mistrial. Still,

the Supreme Court has also indicated that a case involving potential juror bias “falls in an area where the

trial judge’s determination is entitled to special respect.” Washington, 434 U.S. at 510. But the potential

for juror bias here—as opposed to the safety concern

communicated to the court postverdict—is relatively

weak, for the reasons already discussed.6

Additionally, the Supreme Court has recognized that

the Double Jeopardy Clause “prevents a prosecutor or

5

Compare, e.g., United States v. Vartanian, 476 F.3d 1095,

1098–99 (9th Cir. 2007) (holding that a district court did not err

in dismissing a juror who had spoken to members of the defendant’s family, defense counsel, and the defendant), and United

States v. Gonzalez, 214 F.3d 1109, 1113 (9th Cir. 2000) (concluding that juror bias could be assumed where a juror “disclosed the

fact that her ex-husband, the father of her daughter, dealt and

used cocaine—the same drug and conduct at issue” in the case),

with United States v. Gonzalez, 906 F.3d 784, 797 (9th Cir. 2018)

(rejecting a juror-bias claim where the juror in question “unequivocally stated that she could evaluate all of the evidence impartially”), and United States v. Hayat, 710 F.3d 875, 885–89 (9th

Cir. 2013) (affirming a district court’s finding that a juror was not

impermissibly biased despite “several inappropriate racial and

religious comments” made by the juror during deliberations).

6

It is noteworthy as well that, as Washington stressed repeatedly, the potential bias in that case was caused by defense

counsel’s misconduct. See, e.g., 434 U.S. at 501, 512–13, 516.

Here, neither attorney has any responsibility for the behavior

that led to the mistrial.

App. 21

judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the

jury might not convict,” Green, 355 U.S. at 188, and so

protects “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,” Washington, 434

U.S. at 835 (quoting Jorn, 400 U.S. at 486). Closer scrutiny is therefore especially appropriate if the parties

believed an acquittal was likely forthcoming. They did.

According to the Hawaii Supreme Court, when the

mistrial was declared, it was “apparent from the record

that the parties believed the sealed verdict was ‘not

guilty.’ ” Gouveia II, 384 P.3d at 851 n.2. Immediately

before declaring the mistrial, the trial court recognized

as much, stating, “Well, it’s pretty clear to the court

what everybody thinks the verdict is based on your arguments and your motions and lack of such.” Gouveia

therefore had a significant interest seeing his case proceed to verdict—and the prosecution likewise had reason for pressing for a mistrial even if it had no actual

concern about jury bias.

How these interests should be balanced is not entirely clear. Overall, the pertinent factors tend to support considerably less deference to the trial court than

in the paradigmatic high-deference situation. But we

need not finally determine precisely what level of deference is appropriate. Even under a more deferential

standard, the trial court erred in concluding that there

was manifest necessity for a mistrial.

App. 22

B

Under a more deferential standard, for the most

part “we focus on the procedures employed by the judge

in reaching his determination” and assess whether the

trial court “(1) heard the opinions of the parties about

the propriety of the mistrial, (2) considered the alternatives to a mistrial and chose[ ] the alternative least

harmful to a defendant’s rights, [and/or] (3) acted deliberately instead of abruptly.” Chapman, 524 F.3d at

1082 (alterations in original) (quoting United States v.

Bates, 917 F.2d 388, 396 (9th Cir. 1990)).

Here, the trial court’s determination that manifest

necessity justified a mistrial fails at the second step.7

“A trial court should consider and correctly evaluate

the alternatives to a mistrial” and, “once the court considers the alternatives, it should adopt one if less drastic and less harmful to the defendant’s rights than a

mistrial.” Bates, 917 F.2d at 396; see also 6 Wayne R.

LaFave et al., Criminal Procedure § 25.2(d) (4th ed.

2015).8

7

We reject Hawaii’s contention that Gouveia waived this argument when his attorney agreed with the trial court’s assertion

that “[t]here’s no other remedy short of a mistrial that’s going to

cure this or allow us to take the verdict.” Cf. Ricketts v. Adamson,

483 U.S. 1, 8–9 (1987) (holding that a defendant may waive double jeopardy protections). As the district court correctly noted, the

Hawaii Supreme Court fully addressed the availability of reasonable alternatives and so necessarily considered the issue not

waived under state law. See Gouveia II, 384 P.3d at 856–57; see

also Gouveia III, 2017 WL 3687309, at *14 n.2.

8

The Supreme Court has suggested that a trial court need

not consider alternatives when a jury is deadlocked. See Blueford

App. 23

Consideration of potential alternatives was especially important in this case, as the trial court’s substantive conclusion that manifest necessity existed for

a mistrial was weak. This is not a case in which the

indicia of juror bias were so compelling as to cast significant doubt on the fairness of the verdict. Instead,

the trial court concluded that a mistrial was needed

because it could not “find beyond a reasonable doubt

that there was no impact on the deliberations or verdict . . . such that the verdict was not tainted”; the Hawaii appellate courts likewise endorsed the application

of this reasonable doubt standard. See Gouveia II, 384

P.3d at 854; Gouveia I, 2015 WL 2066780, at *6, 10–11.

The use of the reasonable doubt standard in this context is questionable.9 But even if use of the standard

v. Arkansas, 566 U.S. 599, 609 (2012) (“We have never required a

trial court, before declaring a mistrial because of a hung jury, to

consider any particular means of breaking the impasse. . . .”); see

also Renico v. Lett, 559 U.S. 766, 775 (2010). But these statements

apply only to deadlocked juries, and “in cases where the mistrial

is based upon something other than jury deadlock, lower courts

have continued to examine alternatives to mistrial as part of the

manifest necessity analysis.” 6 LaFave, supra, § 25.2(d).

9

Gouveia does not challenge the Hawaii courts’ use of the

reasonable doubt standard, so we do not determine its propriety.

We note, however, that the application of that standard appears

inconsistent with the Supreme Court’s admonition that “the prosecutor must shoulder the burden of justifying the mistrial if he is

to avoid the double jeopardy bar.” Washington, 434 U.S. at 505.

The Hawaii Supreme Court appears to have imported the reasonable doubt standard from the harmless error standard applicable

where a defendant claims a denial of due process or jury trial

rights because of juror or prosecutorial misconduct. See Gouveia

II, 384 P.3d at 854. But that standard is applied to protect a defendant’s constitutional rights: “[B]efore a federal constitutional

App. 24

were permissible, the trial court’s strong reliance on

the standard suggests that its belief that “the verdict

was . . . tainted” was not particularly strong. Indeed,

immediately before declaring a mistrial, the trial court

itself recognized that it was “a really, really close ruling” on whether a mistrial was necessary.

Further, the record does not indicate that the jurors knew of the scary man’s connection to the trial. At

most, some jurors surmised from the man’s location on

the prosecution side of the courtroom and his actions

that he was angry at Gouveia. But the leap from any

such surmise to antiprosecution bias because of those

actions is farfetched. If anything, one would think that

if the jurors thought the unknown man was dangerous

and might hurt them if they sided with Gouveia, they

would be biased against Gouveia, so as to avoid the

danger an acquittal might create. That obviously did

not occur, as we know both from the jurors’ attestations

that they were not affected and from the unanimous

vote to acquit.

Similarly, the trial court’s agreement with the

prosecution that the jurors’ deliberations were likely

affected by the scary man’s presence was wholly unsupported by any objective fact in the record. All

twelve jurors testified that that [sic] the presence of

Meyer’s brother did not affect their own decisions. The

trial court based its determination on a finding that all

error can be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt.” Chapman

v. California, 386 U.S. 18, 24 (1967). Here, it was the prosecution,

not the defendant, that sought a mistrial.

App. 25

twelve jurors’ testimony was not “credible.” But as the

district court noted, “nothing in the record identifies

facts supporting [the] finding that the jurors were not

believable.” Gouveia III, 2017 WL 3687309, at *14. In

particular, the trial court “ma[de] no reference to any

juror’s demeanor.” Id. “The jurors’ ability to serve impartially for the remainder of the trial is at the heart

of the [trial] judge’s determination of manifest necessity.” United States v. Bonas, 344 F.3d 945, 949 (9th Cir.

2003). If the reasons for that determination are not reflected in the record, “we have no way of reviewing

whether the district judge’s decision to declare a mistrial was a sound exercise of discretion.” Id.

Given all these circumstances, particularly careful

consideration of potential alternatives to a mistrial

was appropriate. We must ensure that the trial court

“exercise[d] a sound discretion . . . with the greatest caution, under urgent circumstances, and for very plain

and obvious causes,” as Justice Story admonished long

ago. Perez, 22 U.S. (9 Wheat.) at 580.

The trial court here did not meet this standard.

Instead, with regard to consideration of an alternative

to subjecting Gouveia to an entire second trial even

though the jury had reached a verdict (and one probably in his favor), the trial court simply asserted,

“There’s no other remedy short of a mistrial that’s going to cure this or allow us to take the verdict, correct?

It’s not like we can continue the trial . . . or I can give

them a further instruction.” The trial court’s conclusion that it could not ask the jury to deliberate further

after cautionary instructions appeared to be based on

App. 26

its belief that the jury “reached a verdict already,”

which could not be changed or reconsidered. The Hawaii appellate courts agreed with this assumption,

concluding that there were no reasonable alternatives

to a mistrial. See Gouveia II, 384 P.3d at 856–57;

Gouveia I, 2015 WL 2066780, at *10.

If, in fact, the verdict were final, as the Hawaii

courts suggested, it would constitute an acquittal for

purposes of the double jeopardy protection, and a new

trial would violate the Double Jeopardy Clause for that

reason. “Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a]

verdict of acquittal . . . could not be reviewed, on error

or otherwise, without putting [a defendant] twice in

jeopardy, and thereby violating the Constitution.’ ”

United States v. Martin Linen Supply Co., 430 U.S. 564,

571 (1977) (alterations in original) (quoting Ball v.

United States, 163 U.S. 662, 671 (1896)). Unlike a mistrial, after which retrial may be permitted with “manifest necessity,” an acquittal categorically precludes

retrial. See Brazzel v. Washington, 491 F.3d 976, 981–

82 (9th Cir. 2007).

But here, as the district court correctly recognized,

the undisclosed verdict form did not constitute a final

verdict for purposes of the Double Jeopardy Clause.

Gouveia III, 2017 WL 3687309, at *16. Contrary to

Gouveia’s contentions, with regard to the double jeopardy protection, “in a jury trial, an ‘acquittal’ . . . occurs

only when the jury renders a verdict as to all or some

of the charges against a defendant.” Harrison, 640 F.3d

App. 27

at 898.10 A “verdict,” in turn, “must be rendered by the

jury in open court and accepted by the court in order

to become final.” Id. at 899.11 This reasoning is in accord with the Supreme Court’s holding that a preliminary report on the jurors’ votes “lack[s] the finality

necessary to amount to an acquittal” if it is “possible

for [the] jury to revisit . . . its earlier votes.” Blueford,

566 U.S. at 608.

It is precisely because the undisclosed verdict form

in Gouveia’s case was not a final verdict of acquittal

that the Double Jeopardy Clause’s most stringent protections against retrial after an acquittal do not apply.

It cannot both be true that the verdict was final and

could not be altered and that there was nothing that

could be done to avoid a mistrial by allowing the jury

to revisit the nonfinal verdict.

As the verdict was not final, a variety of alternatives were available to the trial court. The district

10

An acquittal may also take the form of a “ruling that the

prosecution’s proof is insufficient to establish criminal liability for

an offense,” including “ ‘a ruling by the court that the evidence is

insufficient to convict,’ a ‘factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal culpability,’ and

any other ‘rulin[g] which relate[s] to the ultimate question of guilt

or innocence.’ ” Evans v. Michigan, 568 U.S. 313, 318 (2013) (alterations in original) (quoting United States v. Scott, 437 U.S. 82,

91, 98 & n.11 (1978)).

11

Applying these principles, Harrison held that the Double

Jeopardy Clause did not provide a habeas petitioner with the

right “to poll the deadlocked jury on the status of its deliberations

in his . . . capital-sentencing proceeding,” as there was no “procedural mechanism in which the jury’s preliminary determinations

[could] be embodied in a valid final verdict.” 640 F.3d at 900–01.

App. 28

court recognized one possible route the trial court

could have taken:

[T]he trial judge could have done a brief investigation into the glaring man and could then

have called the jury back into court and assured the jury that his inquiries caused him

to conclude that the jurors’ security was being

properly addressed or that there was no safety

threat. . . . The trial judge could then have

sent the jurors back into the deliberation

room to continue their deliberations armed

with these assurances. He could have told the

jurors that they could reach the same result

and even use the same verdict form if, upon

further deliberation, they came to the same

conclusion, while also providing a blank verdict form for them to use in case they changed

their decision.

Gouveia III, 2017 WL 3687309, at *16. Apart from an

unexplained, conclusory statement—“It’s not like we

can continue the trial . . . or I can give them a further

instruction”—the trial court provided no discussion of

this or any other potential alternative to a mistrial. As

the district court put it: “The admonition that all reasonable alternatives be considered requires more than

an assertion. Finding a manifest necessity is a hugely

consequential matter that requires a more searching

process.” Id. at *15.

Moreover, the trial court’s error was compounded

by its failure to consider the especially prejudicial effect a mistrial would have on Gouveia. “[I]n the final

analysis, the judge must always temper the decision

App. 29

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.” Jorn, 400 U.S. at 486. Thus,

“once the court considers the alternatives, it should

adopt one if less drastic and less harmful to the defendant’s rights than a mistrial.” Bates, 917 F.2d at 396.

Retrying Gouveia would expose him to the exact

evils against which the Double Jeopardy Clause protects—that is, “the personal strain, public embarrassment, and expense of a criminal trial more than once

for the same offense.” Abney v. United States, 431 U.S.

651, 661 (1977). But the circumstances of Gouveia’s

mistrial were particularly prejudicial. Here, both sides

had already presented their evidence completely. So, in

a retrial, the prosecution would be fully aware the

weaknesses in its own case as well as the strength of

Gouveia’s defenses. The mistrial effectively “operated

as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case.” Somerville,

410 U.S. at 469. The trial court gave no apparent

weight to Gouveia’s interests in this regard.

C

We are, as the district court was, “sympathetic to

the dilemma facing Gouveia’s trial judge at the time

the mistrial was declared.” Gouveia III, 2017 WL

3687309, at *16. “[A] criminal trial is, even in the

best of circumstances, a complicated affair to manage.”

App. 30

Washington, 434 U.S. at 505 n.16 (quoting Jorn, 400

U.S. at 479). Faced with jurors who expressed “a really

serious concern for their personal safety,” the trial

court suspected that the presence of the menacinglooking man could have affected the jury’s deliberations and the ultimate verdict reached.

But the Double Jeopardy Clause demands more

than mere suspicion. “[T]he . . . 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.” United States v. Dinitz, 424

U.S. 600, 607 (1976) (quoting Jorn, 400 U.S. at 485). By

failing to provide any meaningful consideration to alternatives to a mistrial, the trial court disobeyed that

command.

We conclude there was no manifest necessity for a

mistrial. The district court therefore did not err in concluding that retrying Gouveia would violate his double

jeopardy rights and granting the writ.

IV

The Rooker-Feldman doctrine is inapplicable to

§ 2241 petitions. And retrying Gouveia would violate

the Double Jeopardy Clause. We affirm the district

court’s grant of Gouveia’s § 2241 petition.

AFFIRMED.

App. 31

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

ROYCE C. GOUVEIA,

) Civ. No. 17-00021

) SOM/KJM

Petitioner,

) ORDER GRANTING

vs.

) HABEAS PETITION

NOLAN ESPINDA, Director )

(Filed Aug. 25, 2017)

of the Department of Public )

)

Safety for the State of

Hawaii; and DOUG CHIN, )

)

Attorney General of the

)

State of Hawaii,

)

Respondents. )

ORDER GRANTING HABEAS PETITION

I.

INTRODUCTION.

Petitioner Royce C. Gouveia is scheduled to be retried in state court for manslaughter. The Hawaii state

courts have determined that his double jeopardy rights

will not be violated by a retrial. Gouveia now seeks relief from this court, arguing that the Double Jeopardy

Clause of the federal Constitution forbids the upcoming trial.

Gouveia was tried in state circuit court for manslaughter in violation of section 707-702(1)(a) of Hawaii Revised Statutes. After the jury had reached a

verdict, but without reading the verdict, the state trial

judge declared a mistrial. The judge ruled that the jury

deliberations and verdict were tainted by the jurors’

App. 32

concern about their personal safety, given their comments about a glaring man in the audience during

trial. The trial judge sealed the verdict without opening it and concluded that a mistrial was supported by

manifest necessity. In the trial judge’s opinion, nothing

short of a mistrial could cure the effect of the menacing

man, and Gouveia’s double jeopardy rights would not

be violated by a retrial on the manslaughter charge.

On appeal, the Intermediate Court of Appeals of

the State of Hawaii (“ICA”) opened the sealed verdict

and learned that the jury had voted to acquit Gouveia

of the charges. The ICA then affirmed the trial court.

The Hawaii Supreme Court granted certiorari and also

affirmed. This habeas petition followed.

Gouveia asserts that, given the acquittal, any retrial would violate his Fifth Amendment right not to

be placed in double jeopardy. Gouveia also argues that

the mistrial declaration was not supported by manifest

necessity. This court determines that the verdict of

acquittal was not final at the time a mistrial was declared, but concludes that a mistrial was not manifestly necessary. This court therefore grants Gouveia’s

habeas petition, ruling that a retrial would violate his

federal double jeopardy rights.

II.

BACKGROUND FACTS.

Gouveia was indicted in October 2012 for allegedly

having committed manslaughter in violation of section

707-702(1)(a) of Hawaii Revised Statutes. Trial commenced in state court on Tuesday, September 3, 2013,

App. 33

with jury selection, preliminary instructions, and

opening statements. By Friday, September 6, 2013, the

jury was instructed, closing arguments were presented, and the jury began deliberations. See Docket

Sheet, available through eCourt Kō Kua on the Hawaii

State Judiciary website, www.courts.state.hi.us (input

CaseID 1PC121001474 under “Case Search” after entering eCourt Kō Kua) (last visited August 15, 2017).

In the afternoon of September 6, 2013, the jury

sent simultaneous notes to the court. In Communication No. 3 From the Jury, which indicates that it was

signed at 2:20 p.m., the jury indicated, “We reached a

verdict.” ECF No. 3, PageID # 56. Communication No.

2 From the Jury indicates that, notwithstanding being

numbered “2,” it was actually signed at 2:24 p.m., after

the later-numbered Communication No. 3 had been

signed. Communication No. 2 stated, “Concern. This

morning on prosecutor’s side of courtroom there was a

man, shaved head, glaring and whistling at defendant.

We have concern for our safety as jurors.” ECF No. 3,

PageID # 58.

The parties convened in open court to discuss the

notes. The trial judge stated:

My intention, unless counsel, you know, can

persuade me otherwise, is just to take no action on this, take the verdict, and then I’m going to do what I normally do, which is ask

them if I can come in and talk to them right

afterwards and then address this with them

basically one-on-one, meeting with them in

App. 34

private after we take the verdict and formally

stand adjourned.

ECF No. 13-3, PageID # 349.

At that point, the parties asked that the jurors be

individually voir dired about Communication No. 2.

See id. The following table is a summary of the individual juror voir dire.

Yes. (PageID #s 373

and 376)

No. (PageID # 381)

Yes. (PageID # 388)

Ms. Foster

Ms. Hanashiro

Ms. Li

Juror #7 (unidentified Yes. (PageID # 393)

but referred to as Ms.

Li when excused,

although apparently

not the same person as

the preceding juror)

Yes. Heard whistling No. Only after the verdict was A few of the jurors expressed

from prosecutor’s

reached. (PageID # 365)

concern for their safety.

side. (PageID # 369)

(PageID #s 366 and 370)

Ms. Boehm

Yes. Jurors were slightly

intimidated and concerned.

(PageID # 386)

Yes. As soon as deliberations

started for about 10 minutes.

(PageID #s 382-84);

Also brought up towards the

end. (PageID # 387)

Yes. Toward end of

deliberations for a few

minutes. (PageID # 394)

Was not concerned for herself.

(PageID # 393)

No. (PageID # 39495)

Yes, in the “middle-early” of

Was not concerned when she

No. (PageID # 390deliberations and again at the saw it. But there was concern

91)

end. (PageID # 389)

after the verdict. (PageID # 392)

No. (PageID # 383)

Yes. Had concern for own

No. (PageID # 373safety. (PageID #s 374 and 377) 74)

No. After the verdict was

reached. (PageID #s 373 and

375)

No. (PageID # 367)

Yes. In the beginning for

A few jurors said they were a

No. (PageID # 360)

about 5 minutes. (PageID #

little bit scared. (PageID # 360)

358-59)

Also, brought up after verdict

was reached. (PageID # 361)

No (PageID # 358)

Ms. Wilcox

No. (PageID # 355)

Yes. For a few minutes at the Not concerned for own safety.

end. (PageID # 354)

(PageID # 355); discussion

related to jurors’ concern for

their safety. (PageID # 356)

No (PageID # 353)

Mr. Valencia

Any Bearing on

Decision?

Was Incident Talked About Any Concern For Safety?

During Deliberations

Saw Man Glaring

and Whistling at

Gouveia?

Juror

App. 35

No (PageID # 406)

No. (PageID # 410)

No. (PageID # 417)

No. (PageID # 422)

No. (PageID # 428)

Mr. Chandler

Mr. Masuno

Ms. Mau

Ms. Kama

Ms. Chun

App. 36

Yes. Jurors were concerned.

(PageID # 426)

Yes. At the end and after

verdict reached. (PageID #

422, 425)

Yes, as soon as jurors went

into the deliberation room or

the “early-middle.” (PageID #s

430-31)

No. (PageID # 417)

No. (PageID # 42930)

Yes. Jurors were

concerned about their

safety such that it

impacted their

decision. (PageID #

426)

No. (PageID # 417)

No. (PageID # 413)

No, only after verdict reached. There was concern for the

(PageID #s 411-12)

safety of some of the female

jurors. (PageID # 414-15)

No. (PageID # 417)

No. (PageID # 407)

Yes. For a minute or so when Jurors did not seem scared.

jurors went to deliberate, and (PageID # 408)

then again after verdict had

been reached. (PageID # 407)

App. 37

At the conclusion of the individual juror voir dire,

the trial judge noted that the verdict was unknown and

asked defense counsel if Gouveia was moving for a mistrial. ECF No. 13-3, PageID # 435. Gouveia did not

make such a motion, but the prosecution did. Id.

After hearing argument, the trial judge repeated

that there was no way of knowing what the verdict

was, but indicated that it was “pretty clear . . . what

everybody thinks the verdict is.” Id., PageID # 451. He

stated that, whatever the verdict was, it was “immaterial” to his ruling on the mistrial motion. Id.

Based on the individual juror voir dire, the trial

judge determined that at least some of the jurors had

a “really serious concern for their personal safety.” He

reasoned that four or five of the jurors had stated that

the subject came up as one of the first things in the

deliberation room. Other testimony supported that impression, including Ms. Kama’s statement that the situation affected deliberations. Id., PageID # 452. The

judge stated, “It frankly beggars my reason and common sense that it would have no bearing on the deliberations in this case and therefore the verdict.” Id. He

then declared a mistrial based on “manifest necessity,”

sealing the verdict for future purposes without ever determining what the verdict actually was. Id. He did not

find credible the eleven jurors (other than Ms. Kama)

who said that the glaring man had not affected the verdict, given the statements by at least three or four of

them that they had concerns for their safety. Id.,

PageID #s 452-53.

App. 38

On October 22, 2013, the trial judge followed up

his oral ruling with written Findings of Fact, Conclusions of Law and Order Granting State’s Oral Motion

for Mistrial Based on Manifest Necessity. ECF No. 133, PageID #s 172-77. He made the following findings of

fact:

7. The Court questioned the jurors individually and both counsel for the State and for Defendant were given adequate opportunity to

question each juror regarding Communication No. 2.

8. Four jurors witnessed an individual

seated on the prosecutor’s side of the courtroom whistling and/or glaring at Defendant

(“incident”) prior to commencing deliberation.

9. Seven of the jurors indicated discussion of

the incident occurred before the verdict, ranging from within ten minutes of commencing

deliberation to the end of deliberation. At

least four of these seven jurors indicated discussion of the incident occurred at the beginning of deliberations, specifically that it was

one of the first topics discussed.

10. During the discussion of the incident

prior to verdict, the jurors who actually observed the incident communicated to the

other jurors fear for their own safety.

11. Some of the juror answers regarding

Communication No. 2 and the incident included the following:

App. 39

a. Some jurors were worried about retaliation;

b. The unidentified male’s look appeared hostile during the incident;

c.

Some jurors were concerned;

d.

Some jurors felt intimidated; and

e. The incident impacted other jurors’

decisions.

12. Although all twelve jurors indicated that

neither the incident itself nor the discussion

regarding the incident during the deliberations affected their own decision, at least one

juror indicated that the incident appeared to

have impacted the deliberation process and

decision.

13. The incident was not part of the evidence

in the case at hand.

14. The verdict was never taken for this

case. At no point during the proceedings did

the Court take, read or otherwise get any indication of the jury’s verdict.

15. The Court finds that the jurors’ statements that the incident did not affect their decisionmaking process and/or deliberations are

not credible as evidenced by the plain language of Communication No. 2 and answers of

the voir dire of each individual juror.

16. The Court further finds that the concern

for personal safety as expressed by the jurors

had an impact on the jurors’ decisions based

App. 40

on the totality of the circumstances present

and thus its effect on the subsequent verdict

was not harmless beyond a reasonable doubt.

ECF No. 13-3, PageID #s 173-75.

The trial judge concluded that, although no juror

said that the glaring man had affected his or her own

decisionmaking process, “reason and common sense

dictates that the incident did have an effect on the deliberations hence the impartiality of the jurors, which

[wa]s not harmless beyond a reasonable doubt.” Id.,

PageID # 176. Accordingly, the trial judge ruled that

the jury had not impartially deliberated on a verdict.

Id. The trial judge stated that there was no remedy

short of declaring a mistrial “as neither a continuance

nor a further jury instruction would appropriately address the issue of an impartial jury and its subsequent

tainted verdict.” Id. He said that the bar on double

jeopardy did not preclude Gouveia’s retrial because,

based on the totality of the circumstances, there was a

“manifest necessity” for the mistrial, which he defined

as a sudden and overwhelming emergency beyond the

control of the court that was unforeseeable and made

it no longer possible to conduct the trial or to reach a

fair result. Id., PageID # 177.

On December 19, 2013, following the mistrial declaration, the trial court denied Gouviea’s [sic] motion

to dismiss the charges based on double jeopardy. See

Appeal From the Order Denying Motion to Dismiss for

Violation of Double Jeopardy on December 19, 2013. ECF

No. 13-3, PageID # 148. Gouveia appealed, arguing in

App. 41

his Opening Brief to the ICA that (1) the trial court

had erred in declaring a mistrial (PageID #s 160-66);

and (2) the trial court had erred in denying the motion

to dismiss based on the violation of Gouveia’s double

jeopardy rights under the United States and Hawaii

constitutions (PageID #s 166-67).

On April 30, 2015, the ICA, in a 2-1 decision, affirmed the trial court’s rulings, holding that, because

the trial judge had not abused his discretion in finding

a manifest necessity to declare a mistrial, Gouveia’s

constitutional right to be free of double jeopardy would

not be implicated in any retrial. See Hawaii v. Gouveia,

135 Haw. 219, 348 P.3d 496, 2015 WL 2066780 (Ct. App.

Apr. 30, 2015). The ICA unsealed the verdict, in which

the jury had found Gouveia not guilty. 2015 WL

2066780, *7; ECF No. 8, PageID # 104 (copy of verdict).

On July 2, 2015, Gouveia sought a writ of certiorari from the Hawaii Supreme Court. See ECF No. 133, PageID # 228. Gouveia again argued that the trial

court had erroneously granted the motion for mistrial.

PageID #s 232-235. He contended, “As previously argued, the trial court’s finding of manifest necessity was

erroneous. Therefore the denial of Gouveia’s Motion to

Dismiss for Violation of Double Jeopardy and the ICA’s

ruling affirming the denial were erroneous.” PageID

# 235.

The Hawaii Supreme Court granted certiorari. See

2015 WL 4756475 (Haw. Aug. 10, 2015). On October 26,

2016, the Hawaii Supreme Court affirmed in a 4-1 decision. See 139 Haw. 70, 384 P.3d 846 (2016).

App. 42

On January 18, 2017, Gouveia filed the present petition. See ECF No. 1.

III. STANDARD OF REVIEW.

Gouveia originally requested relief under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C.

§ 2254(d), which provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim –

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d).

Respondents correctly argue (and Gouveia concedes) that § 2254(d) is inapplicable because Gouveia

is not currently “in custody pursuant to the judgment

of a State court.” There is no judgment against him at

all. Instead, his case is set to be retried.

But while the absence of a state judgment renders

§ 2254 inapplicable, it does not leave Gouveia without

App. 43

a federal avenue for challenging his retrial. This court

reviews Gouveia’s petition under 28 U.S.C. § 2241,

which provides federal courts with a general grant of

habeas authority. See Frantz v. Hazey, 533 F.3d 724,

735 (9th Cir. 2008) (en banc).

An example of precisely this approach is found in

Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004), a

case that involved the present judge and the same attorney for a petitioner. In Stow, a double jeopardy

claim had similarly been asserted under § 2254. Noting that the petitioner was not “in custody pursuant to

the judgment of a State court” at the time he filed his

petition, the Ninth Circuit stated that the threshold

requirement for § 2254 had not been satisfied. Id. Instead of denying the § 2254 petition on that basis, the

Ninth Circuit recognized that the petitioner had raised

a double jeopardy challenge to his retrial that could be

“properly treated under § 2241,” which allows for pretrial habeas challenges. Id. at 885 and 888; accord Harrison v. Gillespie, 640 F.3d 888, 896 (9th Cir. 2011)

(“Our precedent makes clear that 28 U.S.C. § 2241 is

the proper vehicle for asserting a double jeopardy

claim prior to (or during the pendency of ) a successive

trial.”). This court construes Gouveia’s § 2254 petition

as a § 2241 petition. This court has allowed supplemental briefing to alleviate any possible prejudice to

Respondents relating to consideration of Gouveia’s habeas petition as one under § 2241.

Section 2241 does not require a petitioner to be in

custody pursuant to a state judgment, but it does require a petitioner to be in custody. Citing Wilson v.

App. 44

Belleque, 554 F.3d 816, 821 (9th Cir. 2009), which noted

that “ ‘custody’ is a jurisdictional prerequisite to habeas review under § 2241(c)(3),” Respondents argue

that Gouveia is not “in custody” such that § 2241 applies. See ECF No. 18, PageID # 573-74. This court is

not persuaded.

Gouveia is on “supervised release” in the state system, which, unlike “supervised release” in the federal

system, occurs pretrial. Gouveia is, in essence, equivalent to a federal defendant who is subject to pretrial

release conditions monitored by a United States Pretrial Services Officer.

As Belleque recognizes, “custody” is defined

broadly and “has not been restricted to situations in

which the applicant is in actual, physical custody.” Id.

at 822 (quotation marks and citation omitted). Instead,

the “custody” requirement is satisfied when there is a

“significant restraint” on a person’s liberty that is not

shared by the public generally. Id. The Ninth Circuit

has noted that the custodial requirement has been met

in cases involving prisoners released on parole, on

their own recognizance, and free on bail. Id.

It is undisputed that Gouveia must comply with

restrictive conditions. See ECF No. 16-1, PageID #s

495-96. These conditions govern where he may reside,

with whom he may have contact, his consumption of

alcohol, his attendance at substance abuse treatment

at his expense, employment, an extradition waiver,

and his possession of dangerous weapons, firearms, or

ammunition. Id., PageID #s 497, 500-01. These are

App. 45

substantial conditions that are not imposed on the

public generally. The totality of the conditions renders

Gouveia in “custody” for purposes of § 2241.

A petition under § 2241, unlike one under § 2254,

is not subject to the heightened standards set forth in

28 U.S.C. § 2254(d). Stow, 389 F.3d at 886. Habeas relief is proper under § 2241 when the petitioner shows

that a retrial would violate his or her Fifth Amendment right against double jeopardy. The § 2241 petitioner need not show that the state court decision was

contrary to or an unreasonable application of clearly

established federal law, as required by § 2254(d). Id. at

888. In examining Gouveia’s petition under § 2241,

this court therefore focuses on whether his double jeopardy right would be violated by the scheduled retrial.

IV. THERE IS NO JURISDICTIONAL, PROCEDURAL, OR OTHER HURDLE TO THIS

COURT’S CONSIDERATION OF THE DOUBLE JEOPARDY ISSUE.

A. The Rooker-Feldman Doctrine is Inapplicable.

In its Supplemental Memorandum of July 31,

2017, Respondents argue that this court lacks jurisdiction pursuant to the Rooker-Feldman doctrine. See

ECF No. 18. That argument lacks merit.

As a general principle, this court may not exercise

appellate jurisdiction over state court decisions. District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 482-86 (1983); Rooker v. Fidelity Trust Co., 263

App. 46

U.S. 413, 415-16 (1923). This rule, commonly known as

the Rooker-Feldman doctrine, bars a losing party in

state court from seeking what amounts to appellate review of the state-court judgment in federal court based

on the losing party’s claim that the state judgment itself violates the loser’s federal rights. See Bennett v.

Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998).

However, it is well settled that the RookerFeldman doctrine is inapplicable to cases seeking habeas corpus relief. See In re Gruntz, 202 F.3d 1074,

1079 (9th Cir. 2000) (“It is well-settled that the RookerFeldman doctrine does not touch the writ of habeas corpus.”); Martin v. Virga, 2012 WL 1622663, *2 (N.D. Cal.

May 9, 2012) (“regardless of the Rooker-Feldman doctrine, a federal court has jurisdiction to consider a habeas corpus petition which, in effect, is a challenge to

the final judgment of a state court in a criminal action”).

B. Younger Abstention is Inapplicable.

Respondents’ Supplemental Memorandum also

argues that this court should abstain from this matter

pursuant to Younger v. Harris, 401 U.S. 37 (1971),

which “forbids federal courts from unduly interfering

with pending state court proceedings that implicate

important state interests.” Potrero Hills Landfill, Inc.

v. City of Solano, 657 F.3d 876, 881 (9th Cir. 2011)

(quoting Middlesex Cnty. Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 432 (1982) (quotation

marks omitted)). This argument is also unpersuasive.

App. 47

In Younger, the Supreme Court held that a federal

court may not interfere with a pending criminal prosecution absent extraordinary circumstances. Logan v.

United States Natl. Ass’n, 722 F.3d 1163, 1167 (9th Cir.

2013). This principle has been extended to interference

with some civil cases. Id. Younger abstention applies

when there is a state proceeding that is (1) ongoing; (2)

implicates important state interests; and (3) provides

an adequate opportunity to raise federal questions;

and (4) when the federal action would enjoin the state

proceeding or have the practical effect of doing so. Id.

But a double jeopardy claim is an exception to the

Younger abstention doctrine. Wilson v. Czerniak, 355

F.3d 1151, 1157 (9th Cir. 2004) (“double jeopardy

claims present an exception to the general rule requiring federal courts to abstain from interfering with

pending state proceedings”); Mannes v. Gillespie, 967

F.2d 1310, 1312 (9th Cir. 1992) (same); Schillaci v. Peyton, 328 F. Supp. 2d 1103, 1105 (D. Haw. 2004) (same).

Accordingly, Younger abstention is inapplicable.

C. Gouveia Exhausted His Double Jeopardy

Claim.

“As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under

§ 2241.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir.

2012). Citing Cooper v. Neven, 641 F.3d 322, 326-27

(9th Cir. 2011), Respondents argue that Gouveia failed

to exhaust his double jeopardy claim by presenting it

App. 48

to the highest court of Hawaii. See ECF No. 18, PageID

# 574. This court disagrees.

Gouveia filed a motion to dismiss on Hawaii and

federal double jeopardy grounds with the trial court.

When the trial court denied that motion, he appealed

that denial to the ICA, contending that his Hawaii and

federal rights to be free of double jeopardy had been

violated and that the trial court had abused its discretion in determining the mistrial was supported by

manifest necessity. See Gouveia, 2015 WL 2066780, at

*11. After the ICA affirmed, Gouveia sought a writ of

certiorari from the Hawaii Supreme court, arguing

that the ICA ruling was erroneous. ECF No. 13-3,

PageID # 235 (“As previously argued, the trial court’s

finding of manifest necessity was erroneous. Therefore,

the denial of Gouveia’s Motion to Dismiss for Violation

of Double Jeopardy and the ICA’s affirming the denial

were erroneous.”). Gouveia properly exhausted his

Fifth Amendment double jeopardy claim.

This court does not agree with Respondents that

Gouveia failed to properly exhaust his remedies because he did not present the “operative facts” to the

Hawaii Supreme Court. See ECF No. 18, PageID # 57577. Respondents make no suggestion that Gouveia

failed to present the “operative facts” to the ICA. Id. In

fact, Gouveia expressly argued to the ICA with references to relevant facts that the mistrial declaration

was not supported by manifest necessity and that the

trial court had erroneously denied Gouveia’s motion to

dismiss on state and federal double jeopardy grounds.

See ECF No. 13-3, PageID # 165-67 (arguing that the

App. 49

verdict was untainted, that the trial court let the jury

reach a verdict but refused to take it, and that retrial

was barred because the mistrial declaration was not

supported by manifest necessity).

In his application for a writ of certiorari from the

Hawaii Supreme Court, Gouveia argued that each juror had been impartial in his or her decisionmaking

process and that the jurors’ individual verdict determinations had not been improperly influenced. See ECF

No. 13-3, PageID #s 228, 234. Gouveia then relied on

Chief Judge Craig Nakamura’s dissent in the ICA decision. See id., PageID # 235. That dissent stated, “In

my view, the Circuit Court of the First Circuit (Circuit

Court) abused its discretion in concluding that manifest necessity existed for a mistrial.” Hawaii v.

Gouveia, 2015 WL 2066780, *11 (Ct. App. Haw. Apr. 30,

2015). Chief Judge Nakamura noted that the “jurors’

expression of concern for their personal safety due to

the incident did not automatically or necessarily mean

that the jurors would be incapable of rendering a fair

and impartial decision.” 2015 WL 2066780 at *13.

Chief Judge Nakamura disagreed with the trial judge’s

determination of manifest necessity, which was based

on the jurors’ expressed concerns for their personal

safety. Id. at *12 to *13. The certiorari application also

argued that, because manifest necessity was lacking,

reprosecution was barred by double jeopardy and that

the trial court had erroneously denied Gouveia’s motion to dismiss based on double jeopardy grounds. ECF

No. 13-3, PageID # 235. Under these circumstances, it

cannot be said that Gouveia failed to adequately raise

App. 50

to the Hawaii Supreme Court the very double jeopardy

claim he raises here.

V.

DOUBLE JEOPARDY ISSUE.

A. Legal Background.

1. The Double Jeopardy Clause Prohibits a Retrial After an Acquittal.

In relevant part, the Fifth Amendment to our nation’s Constitution, known as the Double Jeopardy

Clause, declares “[N]or shall any person be subject for

the same offence to be twice put in jeopardy of life or

limb.” This Double Jeopardy Clause provides three related protections: (1) it prohibits a second prosecution

for the same offense after acquittal; (2) it prohibits a

second prosecution for the same offense after conviction; and (3) it prohibits multiple punishments for the

same offense. See United States v. Wilson, 420 U.S. 332,

343 (1975). At issue here is the first of these protections, which the Supreme Court in United States v.

Martin Linen Supply Co., 430 U.S. 564, 571 (1977),

characterized as “[p]erhaps the most fundamental rule

in the history of double jeopardy jurisprudence.”

The policy behind the Double Jeopardy Clause “is

the concern that permitting the sovereign freely to

subject the citizen to a second trial for the same offense

would arm Government with a potent instrument of

oppression.”

The Clause, therefore, guarantees that the

State shall not be permitted to make repeated

App. 51

attempts to convict the accused, “thereby subjecting him to embarrassment, expense and

ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as

enhancing the possibility that even though innocent he may be found guilty.”

Martin Linen, 430 U.S. at 569 (quoting Green v. United

States, 355 U.S. 184, 187-188 (1957)); see United States

v. Bates, 917 F.2d 388, 392 (9th Cir. 1990) (“Criminal

defendants have a right to have the jury first impaneled to try them [sic] reach a verdict.”). The Supreme

Court has noted that “the protection of the Double

Jeopardy Clause by its terms applies only if there has

been some event, such as an acquittal, which terminates the original jeopardy.” Richardson v. United

States, 468 U.S. 317, 325 (1984).

The Double Jeopardy Clause’s protection against

retrial for the same offense was at issue in Ball v.

United States, 163 U.S. 662, 671 (1896), which involved

a murder charge brought against three men. A jury

found two of the defendants guilty but acquitted the

third, Millard F. Ball. The trial court discharged Ball

and judged the other two defendants guilty, sentencing

them to death. Id. at 664. The convictions of the two

defendants were reversed on appeal because the indictment was insufficient. Id. at 664-65. Despite Ball’s

acquittal in the first trial, all three defendants were

reindicted. Over objections by all of the defendants

based on double jeopardy, all three were then retried

and convicted of murder. Id. at 665-66. The Supreme

Court held that, because Ball had already been

App. 52

acquitted, his retrial violated the Double Jeopardy

Clause. Id. at 669-71. The retrial of the other two defendants, by contrast, did not violate the Double Jeopardy Clause. Id. at 672.

Martin Linen also involved the first double jeopardy protection. After the jury was deadlocked and discharged, the trial court entertained motions for

judgment of acquittal, then entered judgments of acquittal. 430 U.S. at 565-67. The issue before the Supreme Court was whether the government could

appeal the judgments of acquittal. The Court began its

examination of the issue by noting that the Double

Jeopardy Clause was implicated “only when the accused has actually been placed in jeopardy.” Id. at 569.

Jeopardy attaches when the jury is empaneled and

sworn, or, in the case of a bench trial, when the judge

begins to receive evidence. Id. The Supreme Court

noted that the Double Jeopardy Clause was not implicated when a government appeal would not lead to successive prosecutions. The government could, for

example, appeal a post-conviction dismissal of an indictment, as a reversal would merely reinstate the conviction. Id. at 570. However, when a judgment of

acquittal has issued, a reversal on appeal would require a new trial, or at least some other proceeding devoted to the resolution of factual issues going to the

elements of the offense charged. Such a retrial would

violate the Double Jeopardy Clause. Id.

The Supreme Court further explained in Fong Foo

v. United States, 369 U.S. 141 (1962), that even an erroneous acquittal prevents a retrial. In Fong Foo, the

App. 53

trial court directed the jury to return a verdict of acquittal because of prosecutorial misconduct and/or a

lack of credible testimony. After a formal judgment of

acquittal was entered, the government appealed, arguing that the judgment of acquittal should be vacated

and the case retried. The First Circuit, concluding that

the trial judge had not had the authority to direct a

judgment of acquittal, set aside the acquittal and ordered a retrial. The Supreme Court reversed. Because

the defendants had been tried under a valid indictment in a court with subject matter jurisdiction, and

because the trial did not terminate before the entry of

the judgment of acquittal, the Supreme Court held

that, regardless of any trial court error in directing a

judgment of acquittal for the defendants, they could

not be retried without violating the Double Jeopardy

Clause. Id. at 143.

2. The Double Jeopardy Clause Prohibits a Retrial When A Mistrial Has

Been Declared After Jeopardy Attaches Unless the Defendant Consents or the Mistrial Determination

is Supported by Manifest Necessity.

“Because jeopardy attaches before the judgment

becomes final, the constitutional protection also embraces the defendant’s valued right to have his trial

completed by a particular tribunal.” Arizona v. Washington, 434 U.S. 497, 503 (1978) (quotation marks and

citation omitted). The Supreme Court has recognized

that there are multiple “circumstances that may make

App. 54

it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right

to have the trial concluded by a particular tribunal is

sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.” Id. at 505. “If a

case is dismissed after jeopardy attaches but before the

jury reaches a verdict, a defendant may be tried again

for the same crime only in two circumstances: (1) if he

consents to the dismissal; or (2) if the district court determines that the dismissal was required by “ ‘manifest

necessity.’ ” United States v. Bonas, 344 F.3d 945, 948

(9th Cir. 2003).

Given the importance of a person’s right to be free

of double jeopardy, a prosecutor must shoulder the

“heavy burden” of demonstrating a “manifest necessity” justifying a mistrial over the objection of a defendant in order to retry that defendant without violating

the Double Jeopardy Clause. Id.; United States v. Dinitz, 424 U.S. 600, 606-07 (1976). The words “manifest

necessity” “do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.” Arizona, 434

U.S. at 506.

The Supreme Court has long recognized the trial

court’s discretion in making the manifest necessity determination:

We think, that in all cases of this nature, the

law has invested Courts of justice with the

App. 55

authority to discharge a jury from giving any

verdict, whenever, in their opinion, taking all

the circumstances into consideration, there is

a manifest necessity for the act, or the ends of

public justice would otherwise be defeated.

They are to exercise a sound discretion on the

subject; and it is impossible to define all the

circumstances, which would render it proper

to interfere. To be sure, the power ought to be

used with the greatest caution, under urgent

circumstances, and for very plain and obvious

causes; and, in capital cases especially, Courts

should be extremely careful how they interfere with any of the chances of life, in favour

of the prisoner. But, after all, they have the

right to order the discharge; and the security

which the public have for the faithful, sound,

and conscientious exercise of this discretion,

rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths

of office.

United States v. Perez, 22 U.S. 579, 580, 1824 WL 2694,

at *1 (1824).

The degree of deference a trial judge has to declare

a mistrial varies:

The judge’s decision should be strictly scrutinized when there is reason to believe that the

prosecutor is using the superior resources of

the State to harass or to achieve a tactical advantage over the accused. At the other extreme, great deference should be accorded a

trial judge’s decision to discharge a jury which

appears to be deadlocked.

App. 56

United States v. Sanders, 591 F.2d 1293, 1296 (9th Cir.

1979) (quotation marks and citations omitted). “A trial

judge’s decision to declare a mistrial because of possible juror bias is also deserving of great deference.” Id.

at 1297. “Nevertheless, because the mistrial decision

affects a constitutionally protected right, reviewing

courts have an obligation to satisfy themselves that

the trial judge exercised sound discretion in declaring

a mistrial.” Id. (quotation marks, alterations, and citations omitted); accord Arizona, 434 U.S. at 514 (“reviewing courts have an obligation to satisfy themselves

that . . . the trial judge exercised ‘sound discretion’ in

declaring a mistrial”).

It is with the legal backdrop of all the authorities

cited earlier in this order that this court turns to

Gouveia’s specific arguments.

B. Gouveia Does Not Establish That This

Court Should Treat His Sealed Verdict

As a Final Acquittal.

The main focus of Gouveia’s habeas petition is his

argument that, because the jury reached a unanimous

determination that he was not guilty of the offense

charged, he was acquitted for double jeopardy purposes. Respondents point to the failure of the trial

court to receive the verdict as critical to this analysis.

This court rules that when a verdict is not received by

a trial court, that verdict, even when it is an acquittal,

does not necessarily trigger the protection of the Double Jeopardy Clause.

App. 57

The court recognizes that “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s

action.” Martin Linen, 430 U.S. at 571. Instead,

whether a ruling is an acquittal turns on “whether the

ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the

factual elements of the offense charged.” Id. at 571; accord Sanabria v. United States, 437 U.S. 54, 71 (1978)

(defining “acquittal” as “a resolution, correct or not, of

some or all of the factual elements of the offense

charged”). In other words, an acquittal encompasses

“any ruling that the prosecution’s proof is insufficient

to establish criminal liability for an offense.” Evans v.

Michigan, 568 U.S. 313, 318 (2013). Under the circumstances presented here, Gouveia does not show that

the verdict in his case was a final determination that

he was innocent or that the prosecution failed to satisfy all of the elements of the manslaughter charge.

Blueford v. Arkansas, 566 U.S. 599, 132 S.Ct. 2044

(2012), is instructive. In Blueford, a one-year-old boy

suffered fatal head trauma while at home with his

mother’s boyfriend, Blueford. 132 S. Ct. at 2048.

Blueford was charged with capital murder and the

lesser-included offenses of first-degree murder, manslaughter, and negligent homicide. Id. A few hours into

the deliberations, the jury sent a note that asked what

would happen if it could not agree on a charge. The

court called the jury back into the courtroom, instructed the jury to deliberate further pursuant to Allen v. United States, 164 U.S. 492 (1896), and sent the

jury back to deliberate. About 30 minutes later, the

jury sent out another note, this one stating that it

App. 58

could not agree “on any one charge in this case.” 132

S. Ct. at 2049. The court then summoned the jury back

into court and asked the foreperson to disclose the

votes on each offense. The foreperson indicated that

the jury had unanimously agreed that Blueford was

not guilty with respect to the capital murder and firstdegree murder charges, but was divided nine to three

on the manslaughter charge. The foreperson told the

court that the jury had not voted on the negligent homicide charge. 132 S. Ct. at 2049. The court then gave

another Allen charge and sent the jury back to deliberate. When the jury could not reach a verdict, the court

declared a mistrial. Id.

Citing the foreperson’s statement in open court

that the jury had unanimously agreed to acquit

Blueford of the capital murder and first-degree murder

charges, Blueford sought dismissal of those charges on

double jeopardy grounds. Id. The Supreme Court determined that the “foreperson’s report was not a final

resolution of anything.” 132 S. Ct. at 2050. The continuation of deliberations demonstrated that the report

could not have been final. Id. The Supreme Court gave

an example:

A jury enters the jury room, having just been

given these instructions. The foreperson decides that it would make sense to determine

the extent of the jurors’ agreement before discussions begin. Accordingly, she conducts a

vote on capital murder, and everyone votes

against guilt. She does the same for firstdegree murder, and again, everyone votes

against guilt. She then calls for a vote on

App. 59

manslaughter, and there is disagreement.

Only then do the jurors engage in a discussion

about the circumstances of the crime. While

considering the arguments of the other jurors

on how the death was caused, one of the jurors

starts rethinking his own stance on a greater

offense. After reflecting on the evidence, he

comes to believe that the defendant did knowingly cause the death -- satisfying the definition of first-degree murder. At that point,

nothing in the instructions prohibits the jury

from doing what juries often do: revisit a prior

vote.

132 S. Ct. at 2051.

Had this case been in federal court, the verdict

clearly would not have been final for double jeopardy

purposes before its contents were known to the trial

judge and parties. The Ninth Circuit has held:

Rule 31(d) [of the Federal Rules of Criminal

Procedure] grants the judge or any party the

absolute right to have the jury polled after it

has returned its verdicts. Although their jury

room votes form the basis of the announced

verdict, the jurors remain free to dissent from

the announced verdict when polled. In short,

a jury has not reached a valid verdict until deliberations are over, the result is announced

in open court, and no dissent by a juror is registered.

United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir.

1982) (internal citations and quotation marks omitted); accord Harrison v. Gillespie, 640 F.3d 888, 899

App. 60

(9th Cir. 2011) (en banc) (“the verdict must be rendered

by the jury in open court and accepted by the court in

order to become final”); United States v. Boone, 951 F.2d

1526, 1532 (9th Cir. 1991) (“A verdict is returned when

it is given by the jury to the judge in open court.”);

3 C. Wright and S Welling, Fed. Practice and Procedure, § 517 at 52 (2011) (“A verdict is valid and final

when the deliberations are over, the result is announced in open court, and no juror registers dissent.”).

In federal court proceedings, when a poll “reveals

a lack of unanimity, the court may direct the jury to

deliberate further or may declare a mistrial and discharge the jury.” Fed. R. Crim. P. 31(d).

Even if a jury is not polled, a juror could presumably announce in open court his or her disagreement

with other jurors, thereby preventing a verdict from

being final. The jury could then be sent back to continue deliberations.

Hawaii law is similar. Rule 31(c) of the Hawaii

Rules of Penal Procedure provides:

When a verdict is returned and before it is recorded, the jury shall be polled at the request

of any party or upon the court’s own motion.

If upon the poll there is not unanimous concurrence, or there is not concurrence by the

number of jurors stipulated to as being necessary for returning a verdict, the jury may be

directed to retire for further deliberations or

may be discharged.

App. 61

The purpose of Hawaii’s Rule 31(c) is to assure the

court and the parties that a unanimous verdict has

been reached and to give each juror the opportunity to

indicate assent to the verdict in open court. See Hawaii

v. Uyesugi, 100 Haw. 442, 457, 60 P.3d 843, 858 (2002);

see also Hawaii v. Yamada, 99 Haw. 542, 562, 57 P.3d

467, 487 (2002) (“Criminal defendants are entitled to a

unanimous verdict under the Hawai’i Constitution and

pursuant to court rule.”). As illustrated by Hawaii v.

Keaulana, 71 Haw. 81, 83, 784 P.2d 328, 329 (1989), jurors in Hawaii courts have actually indicated during

polling that verdicts reached were not unanimous, resulting in continued deliberations. This demonstrates

that even though the jury in the present case had

unanimously agreed to acquit Gouveia and had informed the court that it had reached a verdict, that decision was not yet a final acquittal for double jeopardy

purposes under Hawaii law, as jurors could still have

changed their minds.

Although not a case involving Hawaii law, Durall

v. Quinn, 2007 WL 1574121 (W.D. Wa. May 29, 2007),

is helpful to the present discussion. Durall is a federal

case flowing from a case in Washington’s state court in

which a jury deliberated and informed the court that

it had reached a decision. Before the verdict was disclosed to the court, the defense alleged juror misconduct. The court then held a hearing and decided to

replace one of the jurors with an alternate because the

juror had been told by a courthouse security officer the

officer’s views of Durall’s credibility. The verdict form

was then sealed and later destroyed. The jury, with an

App. 62

alternate, deliberated anew and reached a guilty verdict. Id. at *10. Durall sought habeas relief under 28

U.S.C. § 2254, arguing that the second verdict violated

the Double Jeopardy Clause. The federal district court

noted that the last reasoned decision by Washington’s

state courts had determined that the jury’s initial,

sealed verdict was not a “final verdict” that terminated

Durall’s jeopardy. Id. at *6. The federal district court

determined that that decision was reasonable and that

§ 2254 relief was unavailable because Durall had not

shown an unreasonable application of Supreme Court

precedent. Id.

Similarly, the jury in Gouveia’s case could have

changed its mind at the time it announced that it had

reached a verdict (and at the time the mistrial was declared). Its verdict form indicating an acquittal therefore does not trigger double jeopardy protections.1

C. The Mistrial Was Not Supported By

Manifest Necessity.

This court’s analysis does not end with its determination that the verdict was not final. Gouveia additionally argues that the mistrial was not supported by

“manifest necessity.” This court agrees.

Hawaii state law provides that, “[w]hen circumstances arise that could influence the impartiality of

1

This court need not address here the hypothetical situation

in which a judge refuses to receive a verdict for an improper motive. There is no suggestion that the judge presiding over

Gouveia’s trial had any improper motive.

App. 63

the jury and thus affect the ability to reach a fair result

based on the evidence, a rebuttable presumption of

prejudice is raised” that supports a determination of

“manifest necessity.” Gouveia, 139 Haw. at 78 384 P.3d

at 854. “To overcome such a presumption, the trial

court, after investigating the totality of the circumstances, must find that the outside influence on the

jury was harmless beyond a reasonable doubt.” Id.

The Hawaii Supreme Court viewed the issue in

Gouveia’s case as being “whether the circuit court

abused its discretion in finding that the presumption

was not proven harmless beyond a reasonable doubt

and no reasonable alternative to declaring a mistrial

existed.” Id. at 78-79, 384 P.3d at 854-55. That is, the

Hawaii Supreme Court, determining that the jurors’

concerns about the glaring man raised a rebuttable

presumption of prejudice, applied a two-pronged test.

First, it examined whether the trial court had found

that the outside influence on the jury was harmless beyond a reasonable doubt. Second, if the influence was

not proven harmless beyond a reasonable doubt, it required the trial court to look at all reasonable alternatives to cure the harm before declaring a mistrial. Id.

at 78, 384 P.3d at 854.

Although this court discusses the first prong of the

above issue (going to the presumption), its focus in the

discussion below is primarily on the second prong (reasonable alternatives to a mistrial).

As the Hawaii Supreme Court noted, upon receipt

of the jury note concerning the menacing man, both

App. 64

counsel and the trial judge recognized the possibility

of an improper influence and agreed that the jurors

should be individually questioned. The Hawaii Supreme Court said:

the jury communication in the instant case

was a statement that the jurors were actually

concerned for their safety, not merely inquiring into the possibility of danger. Additionally,

at least four jurors stated that the discussions

of the incident and potential danger happened

at the beginning of deliberations, which indicates those discussions could have had an effect on the subsequent jury deliberations.

Under these circumstances, the circuit court

was well within its discretion to conclude that

under the totality of the circumstances, the

outside influence was not harmless beyond a

reasonable doubt.

Id., 139 Haw. at 80, 384 P.3d at 856.

This court does not agree with Gouveia that the

state courts’ presumption analysis is constitutionally

flawed. The jurors agreed that the menacing man was

discussed after the verdict was reached. But the jurors

also generally agreed that the matter was discussed

before the verdict was reached. At least three of the jurors indicated that the jury discussed the menacing

man (the outside influence) as soon as they started deliberations. Ms. Wilcox, for example, stated that the

man was discussed in the beginning for about five

minutes. ECF No. 13-3, PageID #s 358-59. Ms. Hanashiro stated that the man was discussed as soon as

App. 65

deliberations started for about ten minutes. Id.,

PageID #s382-84. Mr. Chandler told the court that the

man was discussed early on for a minute or so. Id.,

PageID #s 382-84. Ms. Chun similarly indicated that

the man was discussed as soon as the jury went into

the deliberation room, or possibly in the “early middle”

of deliberations. Id., PageID #s 430-31. Ms. Li also said

the man was discussed in the “middle-early” of deliberations.” Id., PageID # 389. Mr. Valencia, unidentified

Juror #7, and Ms. Kama each indicated that the man

was discussed toward the end of deliberations. Id.,

PageID #s 354, 394, 422, and 425. This means that

eight of the twelve jurors remembered discussing the

menacing man before the verdict was reached, with

five of them indicating that it was so important that he

was discussed in the beginning or in the early-middle

of deliberations. Only four jurors (Ms. Boehm, Ms. Foster, Mr. Masuno, and Ms. Mau) indicated that the menacing man was not discussed until after the verdict

was reached. Id., PageID #s 365, 373, 375, 411-12, and

417.

When combined with the jury’s sending of a note

indicating that the jurors were actually concerned

about their safety, the jurors’ indications that they discussed the menacing man during deliberation supports the finding that they may have been afraid for

their safety while deliberating. Ms. Wilcox, for example, said a few jurors were scared. ECF No. 13-3,

PageID 360. Ms. Hanashiro said a few jurors were intimidated and concerned. Id., PageID # 386. Mr. Valencia, Ms. Boehm, Ms. Foster, Ms. Li, Mr. Masuno, and

App. 66

Ms. Kama each said the jurors were concerned for their

safety. Id., PageID #s 356, 366, 370, 374, 377, 392, 41415, and 426. Additionally, Ms. Kama testified that she

thought the safety concern affected the jury’s decision.

Id., PageID # 426. The trial judge “was well within [his]

discretion to conclude that under the totality of the circumstances, the outside influence was not harmless

beyond a reasonable doubt.” Gouveia, 139 Haw. at 80,

384 P.3d at 856; see also Parker v. Gladden, 385 U.S.

363, 366 (1966) (stating that defendant has right to be

tried by twelve impartial jurors).

This court recognizes that there are problems inherent in accepting the trial judge’s determination

that the verdict was tainted by the jurors’ fear. After

all, a safety concern does not automatically taint a verdict. And here, there are specific circumstances raising

questions about whether the verdict was tainted.

First (and most notable), the jurors voted to acquit! To the extent they thought the glaring man was

associated with the prosecution, any fear they had

would only have arisen with an acquittal. As it turns

out, the glaring man was the decedent’s brother who

would have only been upset with an acquittal. See

Memorandum in Support of Section 2254 Petition at 3,

ECF No. 2, PageID # 12; Transcript of Proceedings

(Sept. 6, 2013) at 59-60, ECF No. 13-3, PageID #s 35253 (indicating that decedent’s brother had shaved head

and was upset while in courtroom). That the jurors

voted to acquit is extraordinary evidence that they

were not affected by fear, as very clearly laid out by the

App. 67

dissenting jurists in the ICA and Hawaii Supreme

Court in Gouveia’s state court proceedings.

Second, while not all the jurors said that they associated the glaring man with a particular party, those

jurors that did draw such an association thought he

was favorable to the prosecution and hostile to

Gouveia. Ms. Foster associated the man with the prosecution and said she had a concern for her safety. See

Id., PageID #s 374-75. Ms. Foster added that the concern “was once the verdict was read, that maybe there

would be some retaliation against, you know, of us for

whatever reason just being a juror.” See Id., PageID

# 377. Ms. Li associated the man with the prosecution

and indicated that there was “maybe a little” concern

after the jury had reached a decision. See Id., PageID

# 392. Juror # 7 indicated that the man had directed

his anger toward the defendant, not the jury, and was

not concerned about safety. See Id., PageID # 393. Juror # 7 indicated that one of the jurors wondered

whether the man’s anger might be directed to the jury

“after everything’s done.” See Id., PageID # 394.

Third, notwithstanding their expressions of fear,

eleven of twelve jurors indicated that any such fear

had no effect on their decision. Although the trial judge

couched his determination as to the impact of the glaring man on what he called “credibility” findings, nothing in the record identifies facts supporting his finding

that the jurors were not believable when they said that

the man did not affect their decision. The trial judge

makes no reference to any juror’s demeanor. He just

says, “It frankly beggars my reason and common sense

App. 68

that it would have no bearing on the deliberations in

this case and therefore the verdict.” ECF No. 13-3,

PageID # 452. Whether this is a true “credibility” finding is unclear; it may instead be an assumption.

But this court sees no need to rely on these

acknowledged problems with the conclusion that the

jurors were affected.2 To this court, the more conspicuous problem is that there was a readily available alternative to a mistrial. See Arizona, 434 U.S. at 514;

Sanders, 591 F.2d at 1296; ECF No. 13-3, PageID # 176.

State law on reasonable alternatives in the double

jeopardy context does not diverge from federal law in

requiring an examination of reasonable alternatives to

a mistrial. Indeed, the Hawaii Supreme Court expressly recognized the need for the trial judge to have

considered alternatives in Gouveia’s case. The Hawaii

Supreme Court, noting that the jury had reached a verdict and notified the court that there was a concern

about juror safety, held, “Under these circumstances,

2

The majority in the ICA’s Gouveia opinion notes in a footnote that, because Gouveia did not argue in either the trial court

or the ICA that the trial judge had “erred in failing to consider

options less severe that [sic] mistrial,” the ICA had “no basis for

concluding” that the trial judge had erred in that regard. 2015 WL

2066780, at *10 n.5. This court nevertheless examines whether

the trial judge had options short of a mistrial. While cognizant

that the ICA statement might raise a possible procedural default

issue, this court is relying on the Hawaii Supreme Court opinion

that makes clear its understanding that the issue of alternatives

to a mistrial was indeed before it. The Hawaii Supreme Court’s

majority opinion in Gouveia includes a section headed “No reasonable alternative to a mistrial would have eliminated the potential of prejudice.” 139 Haw. at 80-81, 384 P.3d at 856-57.

App. 69

the circuit court determined that the verdict was already tainted and that neither a continuance nor additional jury instructions to ignore the outside influence

would have been effective. This determination was reasonable.” 139 Haw. at 80, 384 P.3d at 856.

The problem this court identifies with the Hawaii

Supreme Court’s conclusion in this regard is that it is

based entirely on the trial judge’s statement that

“there is no other remedy short of a mistrial to cure the

issue at hand as neither a continuance not [sic] a further jury instruction would appropriately address the

issue of an impartial jury and its subsequent tainted

verdict.” See id. at 79, 384 P.3d at 855. Nothing in the

record suggests that either the trial judge or the state

appellate courts considered any possible instruction at

all. The trial judge made an assertion unaccompanied

by explication of any sort, and the state appellate

courts accepted the assertion without really examining

it.

The admonition that all reasonable alternatives

be considered requires more than an assertion. Finding a manifest necessity is a hugely consequential matter that requires a more searching process. Otherwise,

the “reasonable alternatives” prong becomes meaningless. It becomes a foregone conclusion that there is no

reasonable alternative once the prejudice is not rebutted. In fact, at one point the Hawaii Supreme Court

suggested as much, saying that “the circuit court was

well within its discretion to conclude that manifest necessity existed for a mistrial because the presumption

of prejudice was not overcome beyond a reasonable

App. 70

doubt.” Id. Although the Hawaii Supreme Court then

went on to note the need to examine reasonable alternatives separately, that discussion was cursory and

nearly pro forma, consisting primarily of accepting the

trial judge’s statement that no reasonable alternative

existed. While there are undeniably situations in

which there is no reasonable alternative to a mistrial

(and this court confesses to having determined that itself in a trial), something more than the existence of

prejudice is required for a mistrial.

Citing Hogan v. Dunkerley, 579 F.2d 141 (2d Cir.

1978), the Ninth Circuit in Sanders said that a mistrial

cannot be said to have been manifestly necessary when

a trial judge has failed to adequately consider alternatives to the mistrial. Id. at 1299. In the Second Circuit’s

Dunkerley case that the Ninth Circuit relied on, the

trial court had sua sponte declared a mistrial over a

defendant’s objections after learning that the defendant had to be hospitalized for seven to ten days because

of a collapsed lung. 579 F.2d at 143-44. The Second Circuit, noting that such continuances were “commonplace in many jurisdictions,” held that, because the

trial court had not explained why a continuance was

not feasible, there was no manifest necessity to declare

a mistrial. Id. at 147-48 (stating that “the apparent

availability of at least one alternative to a mistrial,”

specifically, “adjourning the trial for 7 to 10 days[,]

leads us to conclude that a mistrial was not a ‘manifest

necessity’ ”). Under both federal and Hawaii law, if a

reasonable alternative to a mistrial existed that

App. 71

adequately addressed the potential of prejudice, double jeopardy protections now prevent Gouveia’s retrial.

This trial judge is hugely sympathetic to the dilemma facing Gouveia’s trial judge at the time the mistrial was declared. The trial judge acted deliberately,

taking care to consult with counsel and to hear from

each juror. He then concluded that nothing short of a

mistrial could cure the effect of the menacing man, and

the Hawaii Supreme Court agreed. But there was at

least one “commonplace” thing the trial court could

have tried before reaching that conclusion. This “commonplace” measure, if successful, would have preserved Gouveia’s right to have the charges decided by

the first jury empaneled.

Critical to the availability of this remedy is the

status of the “sealed verdict” as not “received” or final.

That status meant that the trial judge could have done

a brief investigation into the glaring man and could

then have called the jury back into court and assured

the jury that his inquiries caused him to conclude that

the jurors’ security was being properly addressed or

that there was no safety threat. For example, the trial

judge could have told the jury that the court had identified the man with the shaved head who was whistling

and glaring. Even if this required a short continuance,

the trial judge could have told the jury that he or security officers had admonished the man and concluded

that he posed no safety risk to the jurors now or in the

future. The trial judge could then have sent the jurors

back into the deliberation room to continue their deliberations armed with these assurances. He could have

App. 72

told the jurors that they could reach the same result

and even use the same verdict form if, upon further deliberation, they came to the same conclusion, while

also providing a blank verdict form for them to use in

case they changed their decision. This would have been

similar to the trial judge’s initial plan to talk to the

jurors about the incident after receiving the verdict.

See ECF No. 13-3, PageID # 349.

Trial judges often, upon receipt of jury questions,

address jury concerns and questions in open court before sending the jury back to deliberate. In United

States v. Ivester, 316 F.3d 955 (9th Cir. 2003), jurors had

communicated while evidence was being presented

that they were concerned about the lack of security in

the courtroom, given the large number of scary-looking

people in the audience. The jury was told in open court

that many of those people were actually United States

Marshals in plainclothes and that the jurors should

not be concerned for their safety. The jurors ultimately

found the defendant guilty, and the judgment was affirmed.

As noted earlier in the present order, the verdict

in Gouveia’s trial was not final. This means that the

trial judge still had an opportunity to remedy the situation. In declaring a mistrial without even considering

the lesser, “commonplace” action of alleviating the jurors’ safety concern through information and/or instructions, the trial judge committed a constitutional

error. The record does not show why the preceding

“commonplace” cure could not have entirely addressed

any harm.

App. 73

There were, of course, other possible alternatives.

Had the trial judge been concerned that the outside influence might have caused the jurors to return a guilty

verdict, as it appeared that the man was threatening

Gouveia, the trial judge could have adopted a bifurcated procedure. Before looking at the verdict, he could

have said that, if the verdict was guilty, he would declare a mistrial because he could not say beyond a reasonable doubt that the influence of the man was not

harmless, but, if the verdict was not guilty, then he

would receive the verdict because the influence would

have been harmless beyond a reasonable doubt.

This court is at pains to avoid simply disagreeing

with the trial judge’s determination that there was

nothing short of a mistrial that could have remedied

the menacing man’s influence on the jury. Well aware

that actions contemplated after the fact may not fall

within what is reasonably considered at the time, this

court has focused its attention on what is “commonplace.” Given the importance of Gouveia’s federal double jeopardy rights, the court is simply unable to ignore

an obvious, “commonplace” cure that was clearly available to the trial judge in light of the nonfinal nature of

the verdict. At the very least, reasonable alternatives

had to be considered, not declared unavailable out of

hand. Under these circumstances, this court rules that

the trial judge violated Gouviea’s double jeopardy right

in declaring that a mistrial was supported by manifest

necessity. Gouveia may not be retried for manslaughter in violation of section 707-702(1)(a) of Hawaii Revised Statutes. See United States v. Jorn, 400 U.S. 470,

App. 74

487 (1971) (stating that double jeopardy prevents retrial when trial court abuses discretion in declaring

mistrial).

VI. CONCLUSION.

The court grants Gouveia’s habeas petition under

§ 2241, ruling that his federal right to be free of double

jeopardy will be violated by a retrial under the circumstances presented here. The Clerk of Court is directed

to enter judgment in favor of Gouveia and to close this

case.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, August 25, 2017

[SEAL]

/s/ Susan Oki Mollway

Susan Oki Mollway

United States District Judge

App. 75

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROYCE C. GOUVEIA,

No. 17-16892

Petitioner-Appellee,

D.C. No. 1:17-cv00021-SOM-KJM

v.

District of Hawaii,

NOLAN P. ESPINDA, Warden, Honolulu

Director of the Department of

ORDER

Public Safety for the State of

Hawaii; DOUG CHIN, Attorney (Filed Jul. 23, 2019)

General of the State of Hawaii,

Respondents-Appellants.

Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.

The panel has unanimously voted to deny appellant’s [sic] petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote

on whether to rehear the matter en banc. Fed. R. App.

P. 35. The petition for rehearing en banc is DENIED.

App. 76

KEITH M. KANESHIRO 2027

Prosecuting Attorney

KRISTINE YOO 7845

Deputy Prosecuting Attorney

City and County of Honolulu

1060 Richards Street, 10th Floor

Honolulu, Hawai‘i 96813

Ph: (808) 768-6408

FAX: (808) 768-7513

Attorneys for State of Newell

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI‘I

STATE OF HAWAI‘I

v.

ROYCE C. GOUVEIA,

Defendant.

) CR NO. 12-1-1474

) MANSLAUGHTER

) (§707-702(1)(a), H.R.S.)

)

) FINDINGS OF FACT,

) CONCLUSIONS OF LAW

) AND ORDER GRANTING

) STATE’S ORAL MOTION

) FOR MISTRIAL BASED

) ON MANIFEST

) NECESSITY

FINDINGS OF FACT, CONCLUSIONS

OF LAW AND ORDER GRANTING STATE’S

ORAL MOTION FOR MISTRIAL BASED

ON MANIFEST NECESSITY

(Filed Oct. 22, 2013)

State of Hawaii’s (hereinafter “State”) oral motion

for mistrial, having come on for hearing on September

App. 77

9, 2013, before the Honorable Glenn J. Kim, the State

being represented by Deputy Prosecuting Attorney

Kristine Yoo, and Defendant Royce C. Gouveia (“Defendant”) being present and represented by Keith

Shigetomi, Esq., and the Court having received evidence, heard argument of counsel, and being fully advised in the premises, makes the following findings. of

fact and conclusions of law:

FINDINGS OF FACT

1.

On October 4, 2012, Defendant was indicted for

Manslaughter under CR 12-1.1474.

2.

A jury trial commenced on September 3, 2013, and

ended on September 6, 2013. The jury was given

the case for deliberation at about 10:35 AM on

September 6, 2013.

3.

On September 6, 2013, while deliberating, the jury

made the following three communications with

the court:

a.

Communication No. 1 – the jury requested a

“layman’s explanation of ‘reckless’ ”;

b.

Communication No. 2 – the jury expressed

concern for their safety;

“Concern: This morning on the prosecutor’s

side of courtroom there was a man, shaved

head, glaring and whistling at defendant. We

have concern for our safety as jurors.”

c.

Communication No. 3 – the jury informed the

court and counsel that a unanimous decision

had been reached;

App. 78

4.

On September 6, 2013, Communication No. 2 and

No. 3 were given to the Court at the same time.

Communication No. 2 was dated and timed at

1424 hours and Communication No. 3 was dated

and timed 1420 hours (out of order).

5.

Based on Communication No. 2, both parties requested the court to individually voir dire the jurors regarding the communication.

6.

All twelve jurors were individually questioned on

September 6, 2013, and September 9, 2013, by

both the Court and parties specifically about Communication No. 2. Special precautions were taken

to ensure no juror revealed the verdict during the

individual voir dire.

7.

The Court questioned the jurors individually and

both counsel for the State and for Defendant were

given adequate opportunity to question each juror

regarding Communication No. 2.

8.

Four jurors witnessed an individual seated on the

prosecutor’s side of the courtroom whistling and/or

glaring at Defendant (“incident”) prior to commencing deliberation.

9.

Seven of the jurors indicated discussion of the incident occurred before the verdict, ranging from

within ten minutes of commencing deliberation to

the end of deliberation. At least four of these seven

jurors indicated discussion of the incident occurred at the beginning of deliberations, specifically that it was one of the first topics discussed.

10. During the discussion of the incident prior to verdict, the jurors who actually observed the incident

App. 79

communicated to the other jurors fear for their

own safety.

11. Some of the juror answers regarding Communication No. 2 and the incident included the following:

a.

Some jurors were worried about retaliation;

b.

The unidentified male’s look appeared hostile

during the incident;

c.

Some jurors were concerned;

d.

Some jurors felt intimidated; and

e.

The incident impacted other jurors’ decisions.

12. Although all twelve jurors indicated that neither

the incident itself nor the discussion regarding the

incident during the deliberations affected their

own decision, at least one juror indicated that the

incident appeared to have impacted the deliberation process and decision.

13. The incident was not part of the evidence in the

case at hand.

14. The verdict was never taken for this case. At no

point during the proceedings did the Court take,

read or otherwise get any indication of the jury’s

verdict.

15. The Court finds that the jurors’ statements that

the incident did not affect their decision-making

process and/or deliberations are not credible as evidenced by the plain language of Communication

No. 2 and answers of the voir dire of each individual juror.

App. 80

16. The Court further finds that the concern for personal safety as expressed by the jurors had an impact on the jurors’ decisions based on the totality

of the circumstances present and thus its effect on

the subsequent verdict was not harmless beyond a

reasonable doubt.

CONCLUSIONS OF LAW

1.

This issue is of first-impression. Although there is

no specific juror misconduct, based on the facts

and circumstances of the situation, the wellestablished “harmless beyond a reasonable doubt”

standard is adopted.

2.

“As a general matter, the granting or denial of a

motion for new trial is within the sound discretion

of the trial court and will not be disturbed absent

a clear abuse of discretion. The same principle is

applied in the context of a motion for new trial

premised on juror misconduct. The trial court

abuses its discretion when it clearly exceeds the

bounds of reason or disregards rules or principles

of law or practice to the substantial detriment of a

party litigant.” State v. Furutani, 76 Hawai‘i 172,

178-79, 873 P.2d 51, 57-58 (1994).

3.

“The sixth amendment to the United States Constitution and article I, section 14 of the Hawai‘i

Constitution guarantee the criminally accused a

fair trial by an impartial jury. If any juror was not

impartial, a new trial must be granted. However,

not all juror misconduct necessarily dictates the

granting of a new trial. A new trial will not be

granted if it can be shown that the jury could not

have been influenced by the alleged misconduct.”

App. 81

(Emphasis added) State v. Kim, 103 Hawai‘i 285,

290-91, 81 P.3d 1200, 1205-06 (2003); see State v.

Gabalis, 83 Hawai‘i 40, 45, 924 P.2d 534, 539

(1996).

4.

“Where the trial court does determine that such

alleged deprivation is of a nature which could substantially prejudice the . . . right to a fair trial, a

rebuttable presumption of prejudice is raised. The

trial judge is then duty bound to further investigate the totality of circumstances surrounding the

alleged deprivation to determine its impact on

jury impartiality. The standard to be applied in

overcoming such a presumption is that the alleged

deprivation must be proved harmless beyond a

reasonable doubt.” State v. Bailey, 126 Hawai‘i 383,

400, 271 P.3d 1142, 1159 (2012); see Furutani, 76

Hawai‘i at 177, 873 P.2d at 56.

5.

Communication No. 2 raised the concern of the

Court and both counsel that the incident may have

substantially prejudiced the right to a fair trial.

After further investigating the totality of circumstances surrounding Communication No. 2, the

Court concluded at least some of the jurors were

not credible, although explicitly indicated they

were not lying. The Court’s concern is that

although all twelve jurors unanimously agreed to

release Communication No. 2, no juror admitted

that the incident affected their own decision making process. Furthermore, reason and common

sense dictates that the incident did have an effect

on the deliberations hence the impartiality of the

jurors, which is not harmless beyond a reasonable

doubt

App. 82

6.

Communication No. 2 and the underlying incident

could not be proven harmless beyond a reasonable

doubt.

7.

“[T]he trial court must grant a motion for new trial

if any member (or members) of the jury was not

impartial; failure to do so necessarily constitutes

an abuse of discretion.” State v. Sugiyama, 71 Hawai‘i 389, 391, 791 P.24 1266, 1267 (1990).

8.

Under the totality of the circumstances in light of

the plain language of Communication No. 2 and

the voir dire of the individual jurors, the Court

finds that the jury was not impartial in their deliberation and decision-making process. Based on

the foregoing, there is no other remedy short of a

mistrial to cure the issue at hand as neither a continuance nor a further jury instruction would appropriately address the issue of an impartial jury

and its subsequent tainted verdict.

9.

“Even in the absence of a defendant’s express or

implied consent to a mistrial, principles of double

jeopardy pose no bar to reprosecution after discharge of a jury if there was a manifest necessity

for the mistrial, or the ends of public justice would

otherwise be defeated. Manifest. necessity is defined as a sudden and overwhelming emergency

beyond [the] control of [the] court and unforeseeable[, under circumstances in which] it becomes no

longer possible to conduct [the] trial or to reach a

fair result based upon the evidence.” State v.

Ouitog, 85 Hawai‘i 128, 143, 938 P.24 559, 574

(1997); State v. Minn., 79 Hawaii [sic] 461, 903 P.2d

1282 (1995).

App. 83

10. The incident underlying Communication No. 2

was both beyond the court’s control and unforeseeable. Accordingly, based on Communication No. 2,

and the totality of the circumstances, there is

manifest necessity for a mistrial.

ORDER

ACCORDINGLY IT IS HEREBY ORDERED that

the State’s oral motion for mistrial based on manifest

necessity be and the same is hereby granted.

Dated at Honolulu, Hawai‘i: OCT 22 2013.

THE HONORABLE GLENN J. KIM Judge of the

above entitled court

/s/

Glenn J. Kim

THE HONORABLE GLENN J. KIM

Judge of the above entitled court

APPROVED AS TO FORM:

/s/ Keith Shigetomi

KEITH SHIGETOMI, ESQ.

Attorney for Defendant

App. 84

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

ROYCE C. GOUVEIA,

Petitioner,

vs.

NOLAN ESPINDA,

Director of the

Department of Public

Safety for the State of

Hawaii; and DOUG

CHIN, Attorney General

of the State of Hawaii,

Respondents.

) Civ. No.

) 17-00021 SOM/KJM

) ORDER ENJOINING

) REPROSECUTION OR

) RETRIAL OF GOUVEIA;

) ORDER DIRECTING

) STATE COURT TO

) DISMISS PENDING

) CRIMINAL CASE WITH

) PREJUDICE AND TO

) RELEASE GOUVEIA

) FROM ALL CONDITIONS

) OF SUPERVISED

) RELEASE;

)

) ORDER STAYING

) ORDER DIRECTING

) STATE COURT TO

) DISMISS PENDING

) CRIMINAL CASE

) WITH PREJUDICE;

) ORDER GRANTING

) CERTIFICATES OF

) APPEALABILITY

ORDER ENJOINING REPROSECUTION

OR RETRIAL OF GOUVEIA;

ORDER DIRECTING STATE COURT

TO DISMISS PENDING CRIMINAL CASE

WITH PREJUDICE AND TO RELEASE

App. 85

GOUVEIA FROM ALL CONDITIONS

OF SUPERVISED RELEASE;

ORDER STAYING ORDER DIRECTING

STATE COURT TO DISMISS PENDING

CRIMINAL CASE WITH PREJUDICE;

ORDER GRANTING

CERTIFICATES OF APPEALABILITY

I.

INTRODUCTION.

On August 25, 2017, this court issued an Order

Granting Habeas Petition pursuant to 28 U.S.C.

§ 2241. See ECF No. 22. Judgment in favor of Petitioner Royce C. Gouveia was entered the same day. See

ECF No. 23.

On August 29, 2017, Gouveia sought to amend the

order and judgment pursuant to Rule 60(a) of the Federal Rules of Civil Procedure. See ECF No. 24. That motion is granted in part. The court clarifies here its

earlier ruling.

First, the State of Hawaii is enjoined from reprosecuting or retrying Gouveia for the manslaughter

charge at issue in the state court criminal case numbered 1PC121001474. Second, the court orders the

State of Hawaii to dismiss with prejudice the state

court criminal case against Gouveia numbered

1PC121001474 and orders that he be relieved of all

conditions of supervised pretrial release. Third, the

court stays the order requiring dismissal of the criminal case until such time as this case becomes final,

meaning that all appeals of this court’s orders and

App. 86

judgment have been adjudicated. The court also grants

the parties a certificate of appealability to allow them

to appeal this court’s determination that the mistrial

was not supported by manifest necessity and that the

sealed jury verdict was not a final verdict for double

jeopardy purposes.

II.

RULE 60(a) STANDARD.

Rule 60(a) provides:

The court may correct a clerical mistake or a

mistake arising from oversight or omission

whenever one is found in a judgment, order, or

other part of the record. The court may do so

on motion or on its own, with or without notice. But after an appeal has been docketed in

the appellate court and while it is pending,

such a mistake may be corrected only with the

appellate court’s leave.

Fed. R. Civ. P. 60(a). Rule 60(a) may not be the only vehicle for the clarification Gouveia seeks; Gouveia possibly could have sought relief under Rule 59 or Rule

60(b) of the Federal Rules of Civil Procedure. Still, Rule

60(a) does allow this “court to clarify a judgment in order to correct a failure to memorialize part of its decision, to reflect the necessary implications of the

original order, to ensure that the court’s purpose is

fully implemented, or to permit enforcement.” Tattersalls, Ltd. v. DeHaven, 745 F.3d 1294, 1298 (9th Cir.

2014) (quotation marks and citation omitted).

App. 87

III. ANALYSIS.

Gouveia’s § 2241 motion asked this court to “order

that the State of Hawaii give effect to the jury’s acquittal, enter judgment in accordance with that verdict,

and dismiss Cr. No. 12-1-1474 with prejudice, and

grant any other relief to which the petitioner is entitled.” ECF No. 1, PageID # 8.

In its order of August 25, 2017, this court granted

Gouveia’s § 2241 motion, stating that “Gouveia may

not be retried fo [sic] manslaughter in violation of section 707-702(1)(a) of Hawaii Revised Statutes.” ECF

No. 22, PageID # 644.

On August 29, 2017, Gouveia moved under Rule

60(a) for clarification of the court’s order, arguing that

this court had not explicitly barred any retrial of

Gouveia for manslaughter, had not ordered the dismissal of the state-court proceedings with prejudice, and

had not ordered the state to immediately release

Gouveia from all pretrial release conditions imposed

on him. See, e.g., ECF No. 24, PageID # 647. This court

grants the motion in part, ruling that the following

clarification reflects the necessary implications of the

court’s order of August 25, 2017, and ensures that the

purpose of granting relief to Gouveia is fully implemented, while preserving the rights of the parties to

appeal. See Tattersalls, 745 F.3d at 1298.

This court believes that its original order was sufficiently clear that the State of Hawaii cannot retry

Gouveia on the same manslaughter charge. This court

has no reason to believe that the State of Hawaii will

App. 88

flout this court’s order. Nevertheless, an examination

of the state court docket sheet indicates that Gouveia’s

retrial is still set to begin on September 25, 2017, with

“trial call” set for September 19, 2017. See Docket

Sheet, available through eCourt KōKua on the Hawaii

State Judiciary website, www.courts.state.hi.us (input

CaseID 1PC121001474 under “Case Search” after entering eCourt KōKua) (last visited September 12,

2017). This court therefore explicitly clarifies its earlier order and enjoins the State of Hawaii from reindicting or retrying Gouveia on the manslaughter

charge at issue in case number 1PC121001474. Absent

a stay or reversal of this court’s order by an appellate

court, the manslaughter charge at issue in case number 1PC121001474 may not proceed.

Gouveia also asks this court to clarify that the

State of Hawaii must dismiss the pending criminal

case with prejudice. While dismissal is an automatic

consequence of this court’s double jeopardy ruling, the

immediate dismissal of the state court criminal case

with prejudice could make a nullity of the appeal Respondents indicate they will take from this court’s order and judgment. See ECF No. 26, PageID # 658. If

this court were to order the immediate dismissal of the

criminal case with prejudice, the passage of time during the pendency of the appeal could create a statute

of limitations issue if Respondents prevail on appeal

and the State of Hawaii seeks to reindict or retry

Gouveia on the manslaughter charge. Accordingly,

while the court orders the State of Hawaii to dismiss

the manslaughter case against Gouveia in case

App. 89

number 1PC121001474 with prejudice, this court stays

that order to allow the appellate court(s) to rule on the

correctness of this court’s order and judgment. If this

court’s order and judgment become final by being affirmed, this stay shall automatically be lifted, and the

State of Hawaii must immediately dismiss with prejudice the manslaughter charge asserted in case number

1PC121001474.

Gouveia also asks this court to clarify that the

State of Hawaii must release him from the conditions

of his supervised pretrial release. This court agrees

that, unless the State of Hawaii obtains a stay of this

part of the court’s order from the Ninth Circuit Court

of Appeals, the State of Hawaii must relieve Gouveia

of the terms of his supervised pretrial release. This

court declines to stay this part of the order.

The Clerk of Court is directed to send a certified

copy of this order with a notation that it pertains to

Hawaii v Gouveia, 1PC121001474, to counsel of record

and to: 1) Circuit Court Judge Glenn J. Kim, First Circuit Judge, 777 Punchbowl Street, Honolulu, Hawaii

96813; 2) Kristine Yoon Yoo, Esq., Dept. of the Prosecuting Attorney, 1060 Richards Street, Honolulu, HI

96813; and 3) Keith S. Shigetomi, Esq., Pacific Park

Plaza, 711 Kapiolani Boulevard, Ste. 1440, Honolulu,

HI 96813.

App. 90

IV. THE COURT GRANTS CERTIFICATES OF

APPEALABILITY.

Under 28 U.S.C. § 2253(c)

(c)(1) Unless a circuit justice or judge issues

a certificate of appealability, an appeal may

not be taken to the court of appeals from–

(A) the final order in a habeas corpus

proceeding in which the detention complained

of arises out of process issued by a State court;

or

(B) the final order in a proceeding under

section 2255.

(2) A certificate of appealability may issue

under paragraph (1) only if the applicant has

made a substantial showing of the denial of a

constitutional right.

(3) The certificate of appealability under

paragraph (1) shall indicate which specific issue or issues satisfy the showing required by

paragraph (2).

28 U.S.C.A. § 2253(c).

It is not clear whether only Gouveia needs a certificate of appealability to appeal this court’s determination or whether Respondents also need such a

certificate. To ensure that each party’s rights are safeguarded, this court grants, to the extent required, Respondents a certificate of appealability to appeal this

court’s orders and judgment based on this court’s determination that the mistrial was not supported by

manifest necessity. In so doing, this court recognizes

App. 91

that reasonable jurists could find this court’s determination debatable or wrong. See Slack v. McDaniel, 529

U.S. 473, 484 (2000).

Although Gouveia prevailed on the merits of his

double jeopardy claim, he did not prevail on each of the

grounds he raised in his § 2241 motion. In case

Gouveia needs a certificate of appealability to challenge rulings on grounds rejected by this court, see Jennings v. Stephens, 135 S. Ct. 793, 798 (2015), this court

grants him a certificate of appealability with respect to

arguments rejected by this court (e.g., that the sealed

state-court verdict was a final verdict for purposes of

the Double Jeopardy Clause). This court recognizes

that reasonable jurists might find this court’s rejection

of Gouveia’s arguments debatable or wrong. See id.

For example, in footnote 1 of the present motion,

Gouveia argues that “this [c]ourt’s concern about the

lack of polling is misplaced.” ECF No. 24 n.1, PageID

# 649. Although this court did not say that polling was

a prerequisite to rendering any verdict final for double

jeopardy purposes, it did reason that the unpolled jurors could have changed their minds such that the

sealed verdict in Gouveia’s manslaughter trial was not

final for double jeopardy purposes. Reasonable jurists

could disagree on this point.

In his Rule 60(a) motion, Gouveia posits for the

first time that, because the state trial court individually voir dired jurors regarding whether the menacing

man affected the verdict, that was tantamount to polling the jury. See id. Asking whether the menacing man

affected the verdict is not the same as asking whether

App. 92

the verdict reflected each juror’s decision. This court

also recognizes that reasonable jurists could disagree

with respect to this argument and with respect to

whether the sealed verdict was a final verdict for purposes of the Double Jeopardy Clause.

V.

CONCLUSION.

The court grants Gouveia’s Rule 60(a) motion in

part. The court enjoins the retrial of Gouveia, orders

dismissal of the pending charges with prejudice but

stays the dismissal requirement, orders Gouveia’s

immediate release from supervised pretrial release

conditions, and grants both parties certificates of appealability.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, September 12, 2017.

[SEAL]

/s/ Susan Oki Mollway

Susan Oki Mollway

United States District Judge

Gouveia v. Espinda, et al., Civ. No. 17-00021

SOM/KJM; ORDER ENJOINING REPROSECUTION

OR RETRIAL OF GOUVEIA; ORDER DIRECTING

STATE COURT TO DISMISS PENDING CRIMINAL

CASE WITH PREJUDICE AND TO RELEASE

GOUVEIA FROM ALL CONDITIONS OF SUPERVISED RELEASE; ORDER STAYING ORDER DIRECTING STATE COURT TO DISMISS PENDING

CRIMINAL CASE WITH PREJUDICE; ORDER

GRANTING CERTIFICATES OF APPEALABILITY

App. 93

2004 WL 1816637 (C.A.9) (Appellate Brief )

United States Court of Appeals,

Ninth Circuit.

Steven Donald STOW, Petitioner-Appellee,

v.

Albert MURASHIGE, Warden, Maui Community

Correctional Center, Respondent-Appellant.

No. 03-17036.

July 1, 2004.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF HAWAII

The Honorable Susan Oki Mollway

United States District Judge

D.C. CIV. NO. 02-00766 SOM/KSC

(District of Hawaii)

Petitioner-Appellee Steven Donald Stow’s

Supplemental Brief

Peter C. Wolff, Jr., Federal Public Defender, District of

Hawaii, 300 Ala Moana Boulevard, Suite 7104, Honolulu, Hawaii 96850-5269, Telephone: (808) 541-2521,

Facsimile: (808) 541-3545, Attorney for PetitionerAppellee, Steven Donald Stow

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................

ii

ARGUMENT ...........................................................

1

CONCLUSION .......................................................

7

CERTIFICATE OF SERVICE

Note: Table of Contents page numbers missing in

original document ...............................................

App. 94

*ii TABLE OF AUTHORITIES

CASES

Arredondo v. Ortiz, 365 F.3d 778 (9th Cir. 2004) .........4

Hunter v. Ayers, 336 F.3d 1007 (9th Cir. 2002).............4

Jacobs v. McCaughtry, 251 F.3d 596 (7th Cir.

2001) ...................................................................... 1, 2

Mannhalt v. Reed, 847 F.2d 576 (9th Cir. 1988)...........5

McNeely v. Blanas, 336 F.3d 822 (9th Cir. 2003) ..... 1, 5

Rose v. Hodges, 423 U.S. 19 (1975) (per curiam) ..........5

White v. Lambert, ___ F.3d ___, 2004 WL

1276822 (9th Cir. June 10, 2004) .......................... 6, 7

STATUTES

28 U.S.C. § 2241 .............................................. 1, passim

28 U.S.C. § 2254 .............................................. 1, passim

CONSTITUTIONAL PROVISION

Fourteenth Amendment ...............................................6

OTHER AUTHORITY

Antiterrorism and Effective Death Penalty Act

of 1996 ................................................................... 6, 7

Pursuant to this Honorable Court’s request, petitionerappellee, STEVEN DONALD STOW, submits the following brief discussing whether Stow’s federal habeas

petition should be treated as one arising under 28

United States Code (U.S.C.) § 2241 or 28 U.S.C. § 2254.

App. 95

ARGUMENT

This Court’s order directs the parties to consider

McNeely v. Blanas, 336 F.3d 822, 824 n. 1 (9th Cir.

2003), and Jacobs v.McCaughtry, 251 F.3d 596 (7th Cir.

2001). In McNeely, the petitioner – as well as the respondent and, it appears, the district court – characterized his federal habeas petition as “falling under”

§ 2254. McNeely’s federal claim was that the state’s

holding of him in pretrial detention violated his constitutional right to a speedy trial, because no preliminary

hearing had been conducted, and he had not been

brought to trial, within a reasonable period of time. See

McNeely, 336 F.3d at 824. This Court noted that, given

McNeely’s status as a pretrial detainee, he was not “being held ‘pursuant to the judgment of a State court.’ ”

McNeely, 336 F.3d at 824 n.1 (quoting § 2254). As such,

this Court noted that his claim properly fell under

§ 2241 and treated his petition, and its review of the

district court proceedings, as if they had occurred pursuant to § 2241 rather than § 2254. See McNeely, 336

F.3d at 824 n. 1.

The Seventh Circuit’s Jacobs decision is similar in

this respect. The state charged Jacobs with and tried

him upon five counts of first-degree murder; the *2

jury acquitted him, however, on all five counts. See

Jacobs, 251 F.3d at 597. Some four years later, the state

– believing it had “new evidence” warranting a different result – charged Jacobs a second time for the same

predicate incident, under the rubric that it was doing

so for the crimes of kidnaping and false imprisonment.

See Jacobs. 251 F.3d at 597. Exhausting his state

App. 96

remedies prior to being tried a second time, Jacobs filed

a federal habeas petition seeking to bar the second

trial on double jeopardy grounds. See Jacobs. 251 F.3d

at 597. The Seventh Circuit deemed this petition as being “properly classified as a § 2241 petition because it

was filed pretrial and not while he was ‘in custody pursuant to the judgment of a state court.’ ” Jacobs, 251

F.3d at 597 (quoting § 2254).

Stow agrees that, in the ordinary case raising a

pretrial double jeopardy right not to be tried, the claim

should fall under § 2241. This is because, in such ordinary cases, the accused is in pretrial custody pursuant

to a state trial court’s pretrial detention order or the

like. In such cases, no “judgment” – trial not yet having

been had – exists upon which to predicate a § 2254 habeas petition. This is usually so even where, as was the

situation in Jacobs, a first trial has occurred and resulted in a judgment; because, in the ordinary double

jeopardy scenario, that judgment is one of acquittal,

and the State, thereafter, instigates a new proceeding

*3 upon a second indictment or complaint, which, in

turn, generates a new state trial court pretrial detention order of some kind.

Stow’s case, however, is not the usual case. The

State of Hawaii (“the State”) has already tried Stow, as

a result of which it secured a judgment of conviction on

first-degree murder, but the jury acquitted Stow on the

two counts of second-degree murder. On appeal, the

Hawaii Supreme Court reversed the first-degree murder conviction, due to evidentiary insufficiency, but

held that retrial could be had on the two counts of

App. 97

second-degree murder. The Hawaii Supreme Court, accordingly, remanded the matter for retrial on these two

counts.

A new, second indictment was never obtained and,

as such, there is no “pretrial” – or, if you will, “preretrial” – state trial court detention order.1 Stow, *4

rather, remained in the State’s custody pursuant to the

judgment on appeal of the Hawaii Supreme Court.

Since Stow’s petition contested the propriety of the

State’s continued custody of him pursuant to the Hawaii Supreme Court’s judgment on appeal, he invoked

§ 2254 as the basis for his petition, which provides for

federal habeas relief from the “judgment of a state

court” without, moreover, drawing a distinction between judgments on appeal issued by a state appellate

1

Prior to his first trial, Stow was in pretrial custody because

he could not post bail. After conviction, the trial court’s issuance

of the mittimus in conjunction with its judgment of conviction and

sentence obviated any pretrial bail orders. The Hawaii Supreme

Court’s decision to reverse the judgment of conviction, however,

might be said to have implicitly abrogated the issuance of mittimus and, in essence, revived the previous conditions of bail. Indeed, on remand, Stow unsuccessfully sought a reduction of bail.

In a hyper-technical fashion, Stow’s custody prior to the pending

retrial of the second degree murder counts might be attributed to

the state trial court’s order denying a reduction in bail or, that

court’s previous, now implicitly revived, order setting bail in the

first instance. Be that as it may, Stow’s habeas petition did not

seek to set aside these orders nor contend that the bail-related

orders violated the constitution, laws, or treaties of the United

States. And, relatedly, Stow’s custody pending retrial on the two

second-degree murder counts, as discussed above, was not “pursuant” to these bail orders, but, rather, was wholly caused by the

Hawaii Supreme Court’s unconstitutional decision and judgment

on appeal to remand the acquitted counts for retrial.

App. 98

court and judgments of conviction issued by a state

trial court.

In any event, Stow does not believe that – given

the present posture of this case – it makes much difference whether his petition is styled as one arising

under § 2241 or § 2254. Given that relief is warranted

under § 2254’s more difficult standards, any failing to

proceed under § 2241 would appear to be harmless, at

best. Indeed, under both sections, this Court’s review

of the district court’s ruling is de novo. See Arredondo

v. Ortiz, 365 F.3d 778, 781 (9th Cir. 2004) (“[w]e review

a district court’s decision to grant . . . a 28 U.S.C. § 2254

habeas petition de novo”); Hunter v. Avers. 336 F.3d

1007, 1011 (9th Cir. 2002) (“[w]e review de novo the

district court’s decision to grant a 28 U.S.C. § 2241 habeas petition”). What differs, then, is not the standard

of review that this Court applies to the State’s appeal

in the present matter. Rather, the salient difference between a § 2241 habeas petition and *5 one brought under § 2254 is the standard that the district court

applies to grant the writ.

Under § 2254, the district court may only grant

the writ, as is relevant here, if the state court decision

complained of was either contrary to or constituted an

unreasonable application of clearly established federal law as decided by the United States Supreme

Court. In granting Stow the writ, the district court

ruled that this standard was met here. Under § 2241,

on the other hand, the petitioner is entitled to the writ

upon simply showing that he is in custody in violation

of the federal constitution, laws, or treaties. See 28

App. 99

U.S.C. § 2241(c)(3); Mannhalt v. Reed, 847 F.2d 576 (9th

Cir. 1988) (“[t]o prevail on his claim for habeas relief

[under § 2241], Mannhalt must show that his detention violates the Constitution, a federal statute, or a

treaty” (citing § 2241 and Rose v. Hodges. 423 U.S. 19,

21 (1975) (per curiam))). It seems intuitive, if not axiomatic, that if § 2254’s more stringent standards are

met, so, too will habeas relief be warranted under

§ 2241.

The present matter is before this Court on an appeal brought by the State. If this Court is inclined to

hold, as it did in McNeely, that the petition falls under

§ 2241 rather than § 2254, the State’s burden on appeal would seem to become more onerous. Rather than

the questions briefed, which center around whether

the district court was wrong in granting the writ because the Hawaii Supreme Court’s decision *6 was contrary to or an unreasonable application of clearly

established federal law as decided by the United States

Supreme Court, the question under § 2241 would

simply be whether the district court was wrong to issue

the writ because retrying Stow on the two seconddegree murder counts violated the federal constitution’s double jeopardy clause (as applicable to the

states through incorporation in the fourteenth amendment’s due process clause). The latter question, Stow

submits, would be the more difficult one for the State

to persuasively answer in its favor.

This Court’s recent decision in White v. Lambert.

___ F.3d ___ 2004 WL 1276822 (9th Cir. June 10, 2004),

confirms that, at least on the facts of this case.

App. 100

characterizing Stow’s petition as one arising under

§ 2241, rather than under § 2254, only assists Stow in

vindicating his constitutional protection against double jeopardy. In White, this Court held that § 2254 “is

properly seen as a limitation on the general grant of

habeas authority in § 2241,” such that it is “the exclusive vehicle” by which a prisoner in custody pursuant

to the judgment of a state court may obtain habeas relief from a federal court, even if the prisoner’s habeas

claims do not challenge the underlying state court

judgment; in White, a judgment of conviction. White,

2004 WL 1276822 at *6. Hence, a habeas petitioner in

custody pursuant to a state court judgment must meet

the additional, AEDPA-amended requirements that attach to a § 2254 petition. See White, 2004 WL 1276822.

at *2-*7. A habeas petitioner in state *7 custody for

some other reason that is not attributable to a state

court judgment, such as pre-trial custody or detention

pending extradition, may avail himself of § 2241,

thereby alleviating himself of the AEDPA’s stringent

requirements. See White. 2004 WL 1276822, at *2-*7.

Nor, as both McNeely and White evince, is this

Court’s jurisdiction – or that of the district court –

affected by whether the petition is styled one way or

the other. In both McNeely and White, this Court

simply recharacterized the petition’s statutory basis

and thereafter proceeded under the appropriate substantive standards; in neither case did this Court

perceive that it lacked jurisdiction.

App. 101

CONCLUSION

In sum, petitioner-appellee STEVEN M. STOW

submits that it does not make a material difference in

the present matter whether his petition is perceived as

arising under 28 U.S.C. § 2254, as the parties and the

district court have characterized it, or under 28 U.S.C.

§ 2241. In either event, he is entitled to the writ.

App. 102

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

Electronically Filed

Intermediate Court of Appeals

CAAP-14-0000358

31-JAN-2014 11:39 AM

)

)

)

)

)

)

STATE OF HAWAII

vs.

ROYCE C. GOUVEIA,

Defendant.

Criminal No.

12-1-1474

TRANSCRIPT OF PROCEEDINGS

before the Honorable Glenn J. Kim, Judge, Fourth Division, presiding, on September 9, 2013.

JURY TRIAL.

Verdict.

APPEARANCES:

KRISTINE YOO, ESQ.

For the State of Hawaii

ROBERT RAWSON, ESQ.

Deputies Prosecuting Attorney

KEITH S. SHIGETOMI, ESQ.

Court-appointed Attorney

For the Defendant

REPORTED BY

Sharon Hulihee, RPR, CSR 306

Official Court Reporter

State of Hawaii

App. 103

Official Court Reporters

First Circuit Court

State of Hawaii

*

*

[282] THE COURT:

Ms. Yoo?

*

Do you recall that or not,

MS. YOO: Yes, I do recall that. There’s – I note

about three.

THE COURT: Some of them said it came up both

at that point and that it also came up later in the deliberations.

MS. YOO: Right.

THE COURT:

that.

I think two or three people said

MS. YOO: I have three people saying that it came

up towards the beginning of the conversation.

THE COURT:

Okay. You think that’s important?

MS. YOO: Your honor, I do believe that that’s important, especially given what Ms. Hanashiro said was

that it was one of immediately – one of the first things

that had come up as soon as they got back there, that

it was sort of like, hey –

THE COURT: Yeah, I mean, it would seem to imply that it was pretty much – pretty important to at

least some of them, right? I mean, that’s what it implies to me, if it’s one of the earliest topics of discussion

when they get into the room.

App. 104

MS. YOO: And the fact that it again came up

[283] later and the fact that after the verdict that they

felt the need or the need to indicate to the court what

they had discussed from the beginning part. So based

on all of that, your honor, unless the court has any

other questions?

THE COURT: You have any response, Mr.

Shigetomi? I have what I am construing now to be a

motion for mistrial by the State based on manifest necessity to declare that mistrial.

MR. SHIGETOMI:

And we object to it.

THE COURT: Yeah. So I’m giving you a chance

to make a record if you want to.

MR. SHIGETOMI: Well, your honor, the court

addresses or instructs the jury that you are to make

your decision based solely on the evidence in this case.

You listen to the evidence; you follow the court’s instructions; you make a decision. Every one of the jurors

have said it had – there was discussion, but it had no

impact on my decision, all 12.

THE COURT: That’s clearly the strongest argument for me to deny the State’s motion in my view is

that all 12 of them, when I asked them specifically, said

it had no impact on their deliberations. Go on.

MR. SHIGETOMI: And that’s the crux of our argument, that they are presumed to follow instructions.

[284] They all said that they did and therefore the

court should take the verdict at this point in time. It’s

not manifest necessity.

App. 105

THE COURT: Well, if I declare a mistrial based

on the reasons that Ms. Yoo has given me, it’s a nobrainer it’s manifest necessity, right? There’s no – put

it this way. There’s no other remedy short of a mistrial

that’s going to cure this or allow us to take the verdict,

correct? It’s not like we can continue the trial –

MR. SHIGETOMI:

THE COURT:

struction.

I understand.

– or I can give them a further in-

MR. SHIGETOMI:

Correct, correct.

THE COURT: You know, they reached a verdict

already and then they tell me that there was this other

thing. So, you know, if I think it rises to the level of a

mistrial, I’m pretty much going to find that there’s

manifest necessity ‘cause there’s nothing short of a

mistrial that I can do. It’s a tainted verdict, if that’s

going to be my ruling. I mean, you agree with that,

right?

MR. SHIGETOMI:

honor.

I would agree with that, your

THE COURT: Let me ask you this, Mr.

Shigetomi, at the risk of seeming to put you on the spot

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