USA v. Perkins, No. 06-51082 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 06-51082 Summary Calendar March 19, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. BRUCE PERKINS Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 5:06-CR-99-ALL Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit Judges. PER CURIAM:* Bruce Perkins appeals from the district court s denial of his motion to dismiss his indictment on double jeopardy grounds. The denial of a motion to dismiss the indictment is an appealable order under the collateral order doctrine. United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997). Because the district court denied the motion as frivolous, Perkins notice of appeal did not divest the district court of jurisdiction to accept Perkins * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 06-51082 subsequent conditional guilty plea. See United States v. Dunbar, 611 F.2d 985, 987 (5th Cir. 1980) (en banc). Prior to entering a conditional guilty plea to the indictment, Perkins proceeded to trial before a jury. The district court declared a mistrial based on manifest necessity, namely, the jury s inability to reach a verdict. Perkins argues that the district court erred in declaring a mistrial. Perkins further argues that his double jeopardy rights were violated because the Government failed to establish venue as an element of the offense at trial and because jeopardy had attached during the first trial. The district court did not err in finding that a mistrial was necessitated by the jury s inability to reach a verdict. See Arizona v. Washington, 434 U.S. 497, 508 (1978). The record reflects that jury deliberations lasted for about seven hours while Perkin s trial lasted only about three hours. The jury sent several notes to the district court concerning its inability to reach a verdict, and the district court interviewed two jurors individually as well as the jury as a whole in the presence of counsel and the defendant to confirm the jury s deadlocked status. The district court also consulted with counsel regarding whether the jury should continue its deliberations. Furthermore, the issue facing the jury, namely, possession with intent to distrubute crack cocaine, was not particularly complex. In light of these factors, the district court did not abuse its discretion in declaring a mistrial. See United States v. Holley, 986 F.2d 100, 104 (5th Cir. 1993); United States v. Bauman, 887 F.2d 546, 552 (5th Cir. 1989); United States v. Starling, 571 F.2d 934, 941 (5th Cir. 1978). The district court also did not err in denying Perkins motion to dismiss on double jeopardy grounds. The Double Jeopardy Clause does not bar a second trial where the first trial appropriately ended end a mistrial, as in this case. See Richardson v. United States, 468 U.S. 317, 322-23 (1984). Moreover, the Government introduced sufficient evidence at trial to establish venue. See Weaver v. United States, 298 F.2d 496, 498 (5th Cir. 1962). AFFIRMED. 2
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