US v. Daniel Mathis

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 3:14-cr-00016-GEC-JCH-1 and 3:14-cr-00016-GEC-JCH-4. Copies to all parties and the district court. [999733125]. [15-4579, 15-4580]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4579

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man,
Defendant - Appellant.

No. 15-4580

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a
Black Wolf, a/k/a Babi,
Defendant - Appellant.

Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge.
(3:14-cr-00016-GEC-JCH-1; 3:14-cr-00016-GECJCH-4)

Submitted:

January 5, 2016

Decided:

Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.

January 11, 2016

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Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender for the Western
District of Virginia, Geremy C. Kamens, Acting Federal Public
Defender for the Eastern District of Virginia, Frederick T.
Heblich,
Jr.,
Assistant
Federal
Public
Defender,
Charlottesville, Virginia, Paul G. Gill, Assistant Federal
Public Defender, Richmond, Virginia, for Appellants. Anthony P.
Giorno, United States Attorney, Christopher R. Kavanaugh, Ronald
M. Huber, Jean B. Hudson, Assistant United States Attorneys,
Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellants Daniel Lamont Mathis and Kweli Uhuru appeal from
the district court’s order denying their motion to dismiss the
superseding indictment pending against them on double jeopardy
grounds.

Finding no reversible error, we affirm.

I.
Appellants and their four codefendants are charged in a 36count

superseding

indictment.

The

superseding

indictment

alleges, among other matters, that Appellants are members of a
street gang and that members of this gang conspired with one
another to conduct and participate in the affairs of the gang
through

a

pattern

of

racketeering

activity

consisting

of

assaults, robberies, burglaries, kidnapping, carjacking, murder,
drug

trafficking,

and

obstruction

Defendants proceeded to a jury trial.

of

justice.

All

six

Trial commenced on May 4,

2015, and a 16-person jury was sworn by the district court.

No

party had sought an anonymous jury, and the 16 sworn jurors were
selected from a non-anonymous jury panel of 134 individuals.
On May 6, 2015, the district court gave its opening remarks to
the jury, and the parties gave their opening statements.
That evening, counsel for the Government notified the court
and defense counsel that it had a preliminary matter it wished
to take up with the district court prior to the presentation of
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evidence.

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During an in-chambers conference the next day, an

agent with the Federal Bureau of Investigation (FBI) reported to
the district court and counsel that he had learned that Uhuru
had removed from the courtroom and taken to his jail cell a jury
list

containing

personally

identifying

information

for

the

entire 134-person jury panel; this jury list remained in Uhuru’s
possession overnight and for a total of at least 15 hours.

The

agent expressed concerns regarding the safety of the individuals
on the jury list -- given that the jury panel was not anonymous
-- and stated that his concerns were shared by higher ranking
officials within the FBI, as well as members of the Virginia
State

Police

Department.
at

least

and

the

Louisa,

Virginia,

County

Sheriff’s

The agent emphasized that these concerns were based
in

part

on

the

believed

affiliation

between

the

Defendants and the “United Blood Nation,” a street gang with a
history of taking violent action with respect to trials.
The

agent

advised

further

that

the

FBI

and

other

law

enforcement agencies believed they had a duty to notify the 134
jury panel members -- whom the agencies believed to be at some
level of risk as a consequence of Uhuru’s actions -- of the
release of their personal information.

To avoid the possibility

of a mistrial, however, the agent proposed that the members of
the jury panel be advised of the removal of the jury list at the
conclusion of the trial.
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The district court also heard from counsel.
concerns

raised

by

the

agent,

several

Based on the

defense

attorneys

questioned the propriety of waiting until the trial’s conclusion
to notify the individuals on the jury panel and stated their
beliefs that a mistrial was necessary.

Other defense attorneys

noted that the personal information of jury panel members is
routinely shared with criminal defendants and did not move for
or opposed a mistrial.

Counsel for the Government stated the

Government’s view that there were no grounds for a mistrial.
The district court then elicited input from the United States
Marshals in charge of the security detail for the trial.

They

advised

gang

counsel

and

the

court

of

Uhuru’s

believed

connections and recruitment activities, but stated there was no
evidence he had shared the jury list with anyone else.
Following

a

recess,

counsel

for

the

Government

reported

that the FBI remained of the opinion that the individuals on the
jury list should be contacted regarding the dissemination of
their personal information but that the Government opposed a
mistrial.

After

hearing

again

from

the

FBI

agent

and

considering his concerns and the observations of the Marshals
and hearing from counsel, the district court determined that it
would send letters to members of the jury panel advising them
that their personal information had been “viewed to a somewhat
greater extent by criminal defendants than is usually the case
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in the voir dire process.”

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J.A. 222.

The court elected to send

the letters the following morning rather than wait until the
conclusion

of

the

trial.

Consistent

with

this

ruling,

the

district court sent letters to each member of the jury panel.
After the district court announced its decision to send the
letters, the four Defendants other than Mathis and Uhuru moved
for

mistrials.

district
Defendants

court
other

Trial
granted
than

recommenced
the
Mathis

on

mistrial
and

May

12,

motions

Uhuru.

2015,
of

Mathis

and
the

and

the
four

Uhuru

concurred with the district court’s proposal to conduct a voir
dire of the 16 sworn jurors to determine whether they thought
they could proceed as jurors in light of the information relayed
in the court’s letters to them. 1

1

The letters advised the 16 jurors that:

It is routine in all trials, both civil and criminal,
for counsel to share personal information about
prospective jurors with their clients, including
criminal defendants.
This is designed to make sure
that attorneys and their clients are able to make
intelligent decisions in matters of jury selection.
In this case, however, information about all jury
panel members was disseminated among the defendants to
a greater degree than is usually the case in federal
jury selection, in that a jury list was retained by
one defendant overnight.
The court has made appropriate inquires and finds no
reason for special concern. Nonetheless, we wanted to
advise you of this circumstance.
If you have any
additional questions, you may use the contact number
(Continued)
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After the district court, counsel for Mathis and Uhuru, and
counsel for the Government met with and heard from all 16 jurors
individually, the district court excused 3 jurors but advised
that it was prepared to proceed to trial with the remaining 13
jurors.
Uhuru

The court heard argument from counsel for Mathis and

regarding

their

objections

to

5

of

the

13

jurors

but

stated it was convinced all 5 were capable of continuing to
serve on the jury.

The court also stated its willingness to

proceed to trial with a jury of less than 12 persons if the
parties

could

agree

to

do

so.

Mathis

and

Uhuru

elected,

however, to move for mistrials, and the district court granted
their motions and declared a mistrial in the case.
Trial was rescheduled for February 1, 2016.

Mathis and

Uhuru moved to dismiss the superseding indictment on the grounds
that a retrial was barred by the Double Jeopardy Clause of the
Fifth Amendment, claiming that they were goaded into moving for
mistrials

by

the

district

court

and

the

Government.

The

district court denied the motion, concluding that Mathis and
Uhuru failed to prove its actions were intended to goad them
into seeking mistrials and that there was no evidence that the

previously provided.
The court will discuss this
matter with you upon your return to court on Tuesday.
J.A. 229.

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Government had any desire for a mistrial or intended to cause
one.
Mathis and Uhuru noted timely interlocutory appeals from
the

district

Government’s
Appellants

order, 2

court’s
motion

for

challenge

the

and

this

expedited
district

court

granted

briefing.

court’s

On

rejection

the

appeal,
of

their

double jeopardy claim.

II.
The Double Jeopardy Clause of the Fifth Amendment provides
that no person shall “be subject for the same offence to be
twice put in jeopardy of life or limb.”

U.S. Const. amend. V.

This clause protects a criminal defendant from facing “repeated
prosecutions for the same offense.”
667,

671

(1982).

“In

the

case

Oregon v. Kennedy, 456 U.S.
of

a

jury

attaches when a jury is empaneled and sworn.”
572 F.3d 198, 206 (4th Cir. 2009).
protection
valued

against

right

to

double
have

his

2

jeopardy

Baum v. Rushton,

“As such, the constitutional

jeopardy
trial

trial,

embraces
completed

the
by

defendant’s
a

particular

This court has jurisdiction over the appeals under the
collateral
order
exception
to
the
final
judgment
rule.
See Midland Asphalt Corp. v. United States, 489 U.S. 794, 798-99
(1989); United States v. Jefferson, 546 F.3d 300, 308-10
(4th Cir. 2008).

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tribunal.”

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Id.

(internal

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quotation

marks

and

alteration

omitted).
Nevertheless, the right to have a particular jury decide
guilt or innocence once jeopardy has attached is not absolute.
“There are circumstances under which retrial is permitted after
a

criminal

proceeding

has

ended

in

mistrial.”

Easley, 230 F.3d 679, 685 (4th Cir. 2000).

Sanders

v.

Where, as here, a

defendant obtains a mistrial, “the conditions for invocation of
the double jeopardy bar are strict.”

United States v. Wentz,

800 F.2d 1325, 1327 (4th Cir. 1986).

A defendant can avoid a

second trial only if the “the governmental conduct in question
is intended to ‘goad’ the defendant into moving for a mistrial.”
Kennedy, 456 U.S. at 676.
harassment
mistrial

or
on

“[C]onduct that might be viewed as

overreaching,
defendant’s

even

if

sufficient

motion, . . . does

not

to

justify

bar

a

retrial

absent intent . . . to subvert the protections afforded by the
Double Jeopardy Clause.”
burden

of

proving

Id. at 675-76.

specific

intent

to

Appellants bear the
provoke

a

mistrial.

United States v. Smith, 441 F.3d 254, 265 (4th Cir. 2006).
A district court finding as to intent to cause a mistrial
is a factual finding this court must accept unless it is clearly
erroneous.
1995).

United States v. Johnson, 55 F.3d 976, 978 (4th Cir.

Under the clear error standard of review, this court

will reverse only if “left with the definite and firm conviction
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that a mistake has been committed.”

United States v. Chandia,

675

(internal

F.3d

329,

337

(4th

Cir.

2012)

quotation

marks

omitted).
We conclude after review of the record and the parties’
briefs that Appellants have not met their burden to show clear
error

by

the

district

court.

Contrary

to

Appellants’

assertions, the record makes clear that, in sending the letters,
the district court was motivated by a desire to be open and
honest

with

the

jury

panel

members

about

potential

security

concerns and concerns potentially bearing on their ability to
serve as jurors, not by a desire to cause a mistrial.

The

record also makes clear that the district court orally confirmed
on multiple occasions that it was ready and willing to proceed
to

a

trial

Appellants’

for

Appellants,

suggestions

and

that

we

we

reject
should

as

without

deem

merit

these

oral

confirmations of only nominal relevance and conclude that the
statements reflected the court’s intent to goad.

We also reject

as without merit Appellants’ challenge to the district court’s
determination

that

the

Double

Jeopardy

Clause

did

not

bar

retrial even if the decision between requesting a mistrial and
potentially accepting a jury of less than 12 persons qualified
as a Hobson’s choice.

Accord United States v. Green, 636 F.2d

925, 929 (4th Cir. 1980) (noting that when a prosecutor or the
district court “acts erroneously but without such a malevolent
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purpose [i.e., that of acting to provoke a mistrial], retrial is
not precluded even though the error was such as to present the
defendant with a Hobson’s choice between giving up his first
jury and continuing a trial tainted by prejudicial, judicial[,]
or prosecutorial error” (internal quotation marks omitted)).
Appellants also argue in the alternative that Government
counsel

and

We conclude,

the

FBI

agent

however,

that

provoked
the

their

record

mistrial

supports

motions.

the

district

court’s determination that the agent and Government counsel did
not act to provoke a mistrial.

The agent notified the parties

and district court about law enforcement’s concerns regarding
the individuals on the jury list in light of Uhuru’s actions and
believed gang connections because law enforcement had a duty to
notify the jury panel members, whom it believed to be at some
level of risk as a consequence of Uhuru’s actions.
however,

proposed

that

the

panel

members

be

The agent,

notified

of

the

disclosure of their personal information after the conclusion of
the

trial

to

ensure

that

the

trial

proceedings

were

not

disrupted.
The record also makes plain that Government counsel had
neither the desire nor intent to cause a mistrial.
counsel
multiple

voiced

opposition

occasions

and

to

the

even

granting
affirmed

of
the

a

Government
mistrial

on

Government’s

willingness to sever Mathis and Uhuru from their codefendants
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and proceed to trial against them alone.

Further, at the point

the agent addressed the district court and counsel at the in
chambers

conference,

Government

counsel

had

made

an

opening

statement for the Government and had subpoenaed its witnesses to
testify;
counsel

given
to

these

desire

a

circumstances,
mistrial.

there

was

Appellants’

no

reason

arguments

to

for
the

contrary are rejected, and we further reject as meritless their
remaining

extraneous

arguments

for

overturning

the

district

court’s order.

III.
Accordingly,
We dispense

with

contentions

are

we
oral

affirm

the

argument

adequately

district

because

presented

in

court’s

order.

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.
The clerk’s office is directed to issue the mandate forthwith.

AFFIRMED

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