936 F.

2d 6

UNITED STATES, Appellee,

v.
Robyn DiPIETRO, Defendant, Appellant.
No. 90-1657.

United States Court of Appeals,

First Circuit.
Heard Nov. 6, 1990.
Decided June 13, 1991.

Marie T. Buckley, Boston, Mass., for defendant, appellant.

Cerise Lim-Epstein, Asst. U.S. Atty., with whom Wayne A. Budd, U.S.
Atty., was on brief, Boston, Mass., for appellee.
Before BREYER, Chief Judge, BROWN, * Senior Circuit Judge, and
SELYA, Circuit Judge.
JOHN R. BROWN, Senior Circuit Judge.

At issue here is whether the Double Jeopardy clause of the Constitution 1 bars
retrial of a defendant where the court declared a mistrial sua sponte, without
objection by the defense, because of serious prejudicial error by the
government in the presence of the jury. We hold that it does not, and therefore
we affirm.

Robyn DiPietro was charged in a one-count, compound indictment for credit

card fraud, 18 U.S.C. Sec. 1029(a)(2) (1988), 2 and aiding and abetting (in the
commission of credit card fraud), 18 U.S.C. Sec. 2(a) (1988).

The government presented evidence which showed that, between August, 1986
and December, 1987, a group of about a dozen men and women perpetrated the
fraud at Jordan Marsh and Filene's. Four of the participants worked as sales
clerks at the stores. Accomplices came to the stores at prearranged times when
one of these clerks was working, selected merchandise and brought it to that

clerk. The clerk would "ring up" a credit instead of a charge. Thus, two frauds
were perpetrated in one transaction, since the ring member obtained not only a
fraudulent credit to a credit card account (which would be paid to the credit
card issuing bank by the store issuing the credit), but merchandise at no charge.
The "customers" all used their own credit cards--American Express,
MasterCard, or Visa cards issued by a number of banks engaged in interstate
commerce. The amounts of the credits were deposited into the card holders'
bank accounts, and participants shared the proceeds of the transactions with the
inside clerks. Bank records introduced into evidence indicated that the bankissuers and credit card holders incurred no losses, but the merchants did suffer
monetary losses as a result of the transactions.
4

After the government rested, DiPietro moved for Judgment of Acquittal,

asserting that the government had proved only common law larceny by trick
and not the federal crime, because no evidence had been presented that the
credit cards were "unauthorized" as defined by the statute.3 The court denied
the motion, stating that the statutory definition would be given in the jury
charge. The defense offered no evidence, and again asserted in closing
argument to the jury that this element of the crime--the use of unauthorized
cards--had not been proved.

In rebuttal argument to the jury, the government asserted that the guilty pleas
and convictions of DiPietro's named cohorts constituted evidence that all the
elements of the accusations against DiPietro had been proved, thus using their
convictions for purposes other than credibility. The court allowed these
statements over repeated objections by the defense.

At sidebar, the defense requested a special instruction that "the fact somebody
pleaded guilty does not relieve [the government] of the burden of proof, and it
is not any evidence whatsoever that all the elements of the crime were proved."
The court agreed to give such an instruction.

During the luncheon recess, the court in its solitude was troubled about the
possibly significant error. After the recess, the government filed a Supplemental
Request for Jury Instruction to counter the defense's interpretation in closing
argument of the term "unauthorized."4 The court did not rule on the motion, but
summoned counsel and the court reporter, and took notes while the reporter
read back the government's rebuttal argument. Afterwards, both attorneys
withdrew, with no further comment from the court or either attorney. "The
court assumed that at this point both counsel knew the court was considering a
mistrial," the court stated in its later memorandum opinion denying DiPietro's
motion to dismiss on double jeopardy grounds. Defense counsel asserts that she

assumed the court was preparing the requested curative instruction.

8

Determining that the government's error had created severe prejudice to the
defendant which could not be erased from the minds of the jurors or cured by
any instruction, the court declared a mistrial and excused the jury. The court
then explained on the record the error and said "the curative instruction
wouldn't have cured the way [the government] argued the case." The defendant
made no objection to the mistrial, but renewed her Motion for Judgment of
Acquittal and then participated with the court and the government in setting a
new trial date.

The defendant notified the court and the prosecutor the next day of her intent to
file a Motion to Dismiss on grounds of double jeopardy, and 11 calendar days
later filed the motion, which the court denied. The defendant appeals this
denial.

10

We review de novo questions of constitutional law such as a district court's

denial of a motion to dismiss the indictment on the ground of double jeopardy.

11

Appellant claims that the Double Jeopardy clause bars her retrial because the
court declared a mistrial sua sponte without prior notice to or consultation with
appellant's counsel, without a timely indication of why the mistrial was
manifestly necessary, and without affording appellant's counsel a timely
opportunity to object.

12

Unquestionably, "[t]he right not to be put twice to the bar is of a very high
order."5 The Fifth Amendment prohibition against double jeopardy is "not
against being twice punished, but against being twice put in jeopardy...."6 It
embraces a defendant's "valued right to have his trial completed by a particular
tribunal."7 The complete sentence, however, as formulated by Justice Black in
Wade v. Hunter8 recognizes that the right is not absolute: "What has been said
is enough to show that a defendant's valued right to have his trial 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."9

13

Since United States v. Perez, 10 the Supreme Court has held that the
permissibility of a new trial after a mistrial has been declared without the
defendant's consent depends on whether there is a "manifest necessity" for the
mistrial.11

14

We need not reach the question of manifest necessity, however, because the

mistrial was not within the Perez doctrine, because not declared without the
defendant's consent. The manifest necessity test does not apply when the
defendant has requested or effectually consented to the mistrial.12
15

The protection of the Double Jeopardy clause is a personal defense that may be
waived or foreclosed by a defendant's voluntary actions or choices, including
request for or effectual consent to a mistrial.13

16

Further, consent to a mistrial may be inferred from silence where a defendant

had the opportunity to object and failed to do so.14

17

For instance, in United States v. Crosley,15 the failure to timely object to a

mistrial barred a double jeopardy defense even though defense counsel stated
after the Court excused the jury, "I don't mean any disrespect, I assume the
record will reflect I do not agree that the jury should be discharged." The
attorney's comment was made only after the court declared a mistrial, waited
for the deputy clerk to determine whether the jurors were to report the
following day, and delivered a short speech to the jurors about civic
responsibility and the American legal system. Thus the court held that even if
the comment was an objection, it was not timely. 16

18

In United States v. Beckerman,17 the court held that the failure to request a
sidebar conference or press an objection to a mistrial justified an inference of
accord even though trial court did not solicit opinion of defense counsel, and
cut off counsel's attempt to offer "a suggestion."18

19

A case very similar to the one at hand is Camden v. Circuit Court.19 There, the
defendant's consent was implied where defense counsel remained silent instead
of objecting after a mistrial was declared in the presence of the jury. 20 Defense
counsel's conduct in responding to the state's attorney's request for resetting of
trial by waiving any speedy trial demand and agreeing to a second trial date
also was considered by the court strongly suggestive that counsel had impliedly
consented to the mistrial ruling.21 The fact that the only opportunity to object
was in the presence of the jury was held irrelevant, since there was no risk of
offending the trier of fact by objecting to a mistrial declared due to prejudicial
error, as there might be in other circumstances.22

20

The court further stated, "Defense counsel should have anticipated the
possibility of a mistrial and been prepared to object or suggest more acceptable
alternatives when the trial judge announced his ruling," which had been
declared sua sponte after a recess to investigate juror bias.23 The court found it

dispositive that the defendant "fail[ed] to object despite having a brief but
adequate opportunity to do so."24
21

Even where courts have held that the failure to object did not foreclose a good
double jeopardy plea, they have generally done so because there was no
opportunity to object.25 For instance, in United States v. White,26 the Court of
Appeals for the Sixth Circuit held that the failure of a defendant to object to a
mistrial requested by his codefendant did not waive double jeopardy as a bar to
a new trial, because the defense had no time to object to the mistrial. The
mistrial ruling came as a surprise and the court dismissed the jury immediately
after a bench conference.27

22

Here, on the other hand, the error occurred several hours before the declaration
of a mistrial. Although the court did not explicitly notify counsel that it was
considering a mistrial, the error and the fact that the court was considering how
to deal with it were not surprises.

23

Defense counsel was arguably on inquiry notice when the court summoned the
attorneys for conference and reviewed the erroneous government argument to
the jury. She "should have anticipated the possibility of a mistrial and been
prepared to object or suggest more acceptable alternatives when the trial judge
announced his ruling."28

24

Even absent such a reasonable expectation, there was ample opportunity to

object when the mistrial decision was declared by the trial court.

25

But defense counsel did not object. For several minutes after the decision was
announced, she and the government counsel and the trial judge remained in the
courtroom. She listened to the court's record explanation of the reason for a
mistrial and did not object. She formulated and stated a motion for judgment of
acquittal and did not object to the mistrial. Finally, she consulted her calendar
and discussed with the court and government counsel acceptable dates for a
new trial, and scheduled the trial. But she did not object to the mistrial.29

26

Had an objection been registered, the court could have reconsidered its
decision. Although the jury was dismissed when the mistrial was declared,
upon an immediate objection, the court could have asked the jury to remain
while reconsidering its decision. The trial judge did not precipitously leave, but
remained to discuss with the government the error and to set a new trial date,
with the participation of defense counsel. Given no hint that the defendant
desired her fate to be entrusted to this particular, and perhaps severely

prejudiced jury, the court did not have to consider any such undisclosed wishes,
and could not be expected to guess that the mistrial was "over her objections."
27

While the term "waiver" is sometimes used in a double jeopardy context in

reference to a defendant's request for or consent to a mistrial, the Supreme
Court made clear in United States v. Dinitz,30 its rejection in such cases of a
waiver theory analogous to the requirement that waiver of the Sixth
Amendment right to counsel must be knowing, voluntary and intelligent.31
Instead the Court said that "[t]he important consideration, for purposes of the
Double Jeopardy Clause, is that the defendant retain primary control over the
course to be followed...."32 By choosing to consent to the court's declaration of
a mistrial, DiPietro has retained that control. Her retrial is not barred by double
jeopardy.

28

Our decision in United States v. Rivera33 is not to the contrary. In Rivera, we

held that a defendant's failure to plead a defense of double jeopardy at a second
trial did not constitute knowing waiver of his constitutional right, where his
conviction was vacated and he was re-indicted after it was discovered that the
indictments had been returned by a grand jury whose term had expired. There is
a substantial, non-technical difference between, on the one hand, failing to
oppose a mistrial, thereby foregoing the opportunity to construct a double
jeopardy plea should the mistrial be declared, and on the other hand, failing to
plead or assert an already matured double jeopardy plea as in Rivera.

29

DiPietro has not made out a valid double jeopardy plea and therefore may be
retried.

30

AFFIRMED.

Of the Fifth Circuit, sitting by designation

The fifth amendment provides: "[N]or shall any person be subject for the same
offence to be twice put in jeopardy of life or limb...." U.S. Const. amend. V.
This of course is made applicable to the states by the fourteenth amendment.
Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2058, 23 L.Ed.2d 707,
711 (1969)
Jeopardy attaches in a jury trial when the jury is impaneled and sworn, and in a
bench trial when the judge begins to hear the evidence. Serfass v. United
States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062-63, 43 L.Ed.2d 265, 274 (1975).

"(a) Whoever--... (2) knowingly and with intent to defraud traffics in or uses
one or more unauthorized access devices during any one-year period, and by
such conduct obtains anything of value aggregating $1,000 or more during that
period ... shall, if the offense affects interstate or foreign commerce, be
punished as provided...." 18 U.S.C. Sec. 1029(a)(2) (1988)

"Unauthorized access device" is defined as "any access device that is lost,

stolen, expired, revoked, canceled, or obtained with intent to defraud...." 18
U.S.C. Sec. 1029(e)(3) (1988). The term "access device" includes credit cards.
18 U.S.C. Sec. 1029(e)(1) (1988)
The government alleged that the cards involved were "obtained with intent to
defraud." DiPietro contended that the Sec. 1029(a)(2) provision against the use
of "unauthorized" cards is limited to cards either originally obtained from the
issuer by the cardholder with intent to defraud or obtained by a third party from
the cardholder with intent to defraud. DiPietro's scam involved cards which, so
far as the evidence revealed, had originally been obtained by the cardholders
from the issuers for proper purposes and without intent at that time to defraud
anyone, but were later used by the cardholders themselves, and not by third
parties, to defraud department stores, not the cardholders.

The government cited a recent opinion construing the statute to prohibit thirdparty use of credit cards to defraud the issuer with the consent of the
cardholder, even though the cardholder originally obtained the card without
intent to defraud the issuer. United States v. Jacobowitz, 877 F.2d 162, 165-67
(2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989)
The defense distinguishes Jacobowitz, contending that in DiPietro's scam, the
cards were used by the cardholders, not third parties, and were used to defraud
merchants, not the issuers of the cards or the cardholders.
Both sides suggest that the merits of this issue are significant to the likely
outcome if the case went to the jury--the defense contending DiPietro would
have been acquitted and the government that she would have been convicted
but that such conviction would likely have been overturned on appeal because
of the government's prejudicial error. DiPietro argues that the mistrial without
her consent deprived her of this likely acquittal in one trial.
The government counters that a mistrial was manifestly necessary since a
conviction and its reversal were probable, so a retrial without the defendant's
consent does not offend double jeopardy. Illinois v. Somerville, 410 U.S. 458,
464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425, 431 (1973). The government also
contends that the defense "invited" its misuse of the other convictions by
incorrectly defining "unauthorized." These are curious contentions. The

government conceded at oral argument that at the time it made its wholly
inappropriate use of information about accomplice convictions, it had not yet
discovered Jacobowitz--that is to say, it did not have a better definition to offer
than the defendant's so it chose instead to make improper argument and blame
the defendant for "inviting" it.
Because we find that the mistrial was not without the defendant's consent, we
need not reach the highly doubtful manifest necessity, the construction of the
statute, or the applicability of Jacobowitz to this case. We have no way to assay
the likelihood of conviction.
5

United States v. Hotz, 620 F.2d 5, 6 (1st Cir.1980). See, also, Arizona v.
Washington, 434 U.S. 497, 503-05, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717, 72628 (1978); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27
L.Ed.2d 543, 553 (1971); United States v. Pierce, 593 F.2d 415, 419 (1st
Cir.1979)

Ball v. United States, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300,
302 (1896)

Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978
(1949); see also Illinois v. Somerville, 410 U.S. at 466, 93 S.Ct. at 1071, 35
L.Ed.2d at 432; United States v. Jorn, 400 U.S. at 484, 91 S.Ct. at 556, 27
L.Ed.2d at 556; United States v. Pierce, 593 F.2d at 419

336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949)

Id. at 689, 69 S.Ct. at 837, 93 L.Ed. at 978

10

9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824)

11

Id. at 579, 6 L.Ed. at 165. See also United States v. Dinitz, 424 U.S. 600, 60607, 96 S.Ct. 1075, 1079-80, 47 L.Ed.2d 267, 273 (1976); Illinois v. Somerville,
410 U.S. at 461, 93 S.Ct. at 1069, 35 L.Ed.2d at 429; United States v. Jorn, 400
U.S. at 481, 91 S.Ct. at 555, 27 L.Ed.2d at 554; Wade v. Hunter, 336 U.S. at
689-90, 69 S.Ct. at 837-38, 93 L.Ed. at 978; Simmons v. United States, 142
U.S. 148, 153-54, 12 S.Ct. 171, 172, 35 L.Ed. 968, 971 (1891)

12

See Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d
416, 422 (1982) (mistrial at defendant's request); United States v. Dinitz, 424
U.S. at 608, 96 S.Ct. at 1080, 47 L.Ed.2d at 274 ("The distinction between
mistrials declared by the court sua sponte and mistrials granted at the
defendant's request or with his consent is wholly consistent with the protections
of the Double Jeopardy Clause." (emphasis added))

13

United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)
(guilty pleas and resulting convictions on two separate conspiracy indictments
foreclosed double jeopardy challenge that only one conspiracy existed);
Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (double
jeopardy defense waived by defendant's breach of plea agreement); United
States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (government
appeal of dismissal and subsequent new trial not barred by double jeopardy
where defendant strategically chose to seek dismissal of two counts of
indictment on the basis of preindictment delay, a factor unrelated to guilt or
innocence); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d
267 (1976) (double jeopardy no bar to retrial where defendant successfully
moves for mistrial); U.S. v. Britt, 917 F.2d 353 (8th Cir.1990) (double jeopardy
defense waived by non-compliance with terms of plea agreement which
provided that failure to provide truthful information would render agreement
void), cert. denied, --- U.S. ----, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991); U.S.
v. Bauman, 887 F.2d 546, 549 (5th Cir.1989) (defendant may waive double
jeopardy protection by consenting to mistrial), cert. denied, --- U.S. ----, 110
S.Ct. 1128, 107 L.Ed.2d 1034 (1990); United States v. Miller, 742 F.2d 1279
(11th Cir.1984) (defendant deemed to have waived double jeopardy claim
where she consents to mistrial), cert. denied, 469 U.S. 1216, 105 S.Ct. 1194, 84
L.Ed.2d 340 (1985); Raslich v. Bannan, 273 F.2d 420, 420-21 (6th Cir.1959)
(retrial did not constitute double jeopardy where "appellant and his attorney
acquiesced in, and in substantial effect consented to" mistrial)

14

See, e.g., United States v. Buljubasic, 808 F.2d 1260, 1265-67 (7th Cir.)
(silence will be construed as consent when judge proposes mistrial and invites
comment), cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987);
United States v. Puleo, 817 F.2d 702, 705 (11th Cir.) (consent implied where
trial judge expressed clear intent to declare mistrial and defense counsel had
opportunity to object but did not), cert. denied, 484 U.S. 978, 108 S.Ct. 491, 98
L.Ed.2d 489 (1987); United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir.)
(defendant failed to object despite opportunity to do so), cert. denied, 414 U.S.
873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973); United States v. Phillips, 431 F.2d
949 (3d Cir.1970) (failure to raise timely objection to mistrial where jury is
deadlocked precludes later claim of double jeopardy)

15

634 F.Supp. 28 (E.D.Pa.1985), aff'd 787 F.2d 584 (3d Cir.1986)

16

Id. at 31

17

516 F.2d 905 (2d Cir.1975)

18

Id. at 908-09

19

892 F.2d 610 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1954, 109
L.Ed.2d 316 (1990)

20

Id. at 615

21

Id. See also, United States v. Smith, 621 F.2d 350, 352 (9th Cir.1980) (consent
implied where, after court declared mistrial sua sponte, defense counsel did not
object but engaged in planning for new trial), cert. denied, 449 U.S. 1087, 101
S.Ct. 877, 66 L.Ed.2d 813 (1981)

22

Camden, 892 F.2d at 615 n. 6

23

Id. at 618

24

Id. at 619

25

See, e.g., United States v. Jorn, 400 U.S. 470, 487, 91 S.Ct. 547, 558, 27
L.Ed.2d 543, 558 (1971) (no consent where trial judge acted so abruptly in
declaring mistrial sua sponte there was no opportunity to object); United States
v. Bates, 917 F.2d 388 (9th Cir.1990) (no implied consent to mistrial because
no opportunity to object where court did not even answer defendants as he left
the bench when they requested a hearing after court ordered a mistrial);
Lovinger v. Circuit Court, 845 F.2d 739 (7th Cir.) (failure to object not
construed as consent because no opportunity to object: "It appears from the
record that the judge actually left the courtroom as he finished his statement.
He was gone before the defense had any reasonable opportunity to consider the
import of his statement and act upon it." Id. at 744), cert. denied, 488 U.S. 851,
109 S.Ct. 136, 102 L.Ed.2d 108 (1988); United States ex rel. Russo v. Superior
Court, 483 F.2d 7, 17 (3d Cir.) (defendant not penalized for failure to object to a
mistrial where the declaration of the mistrial came as a surprise ), cert. denied,
414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973)

26

914 F.2d 747 (6th Cir.1990)

27

Id. at 753-54

28

Camden v. Circuit Court, 892 F.2d 610, 618 (7th Cir.1989), cert. denied, --U.S. ----, 110 S.Ct. 1954, 109 L.Ed.2d 316 (1990)

29

See id. at 615; United States v. Smith, 621 F.2d 350, 352 (9th Cir.1980)
(consent implied where, after court declared mistrial sua sponte, defense
counsel did not object but engaged in planning for new trial), cert. denied, 449
U.S. 1087, 101 S.Ct. 877, 66 L.Ed.2d 813 (1981)

30

424 U.S. 600, 608-09, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267, 274-75 (1976)

31

See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)

32

424 U.S. at 609, 96 S.Ct. at 1080, 47 L.Ed. at 275

33

872 F.2d 507 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 71, 107 L.Ed.2d 38
(1989)