Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-5-2008

USA v. Cyril H. Wecht
Precedential or Non-Precedential: Precedential

Docket No. 08-2258




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                                    PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 08-2258


      UNITED STATES OF AMERICA

                       v.

             CYRIL H. WECHT,

                        Appellant


On Appeal from the United States District Court
   for the Western District of Pennsylvania
          (D.C. No. 06-cr-00026-001)
 District Judge: Honorable Arthur J. Schwab


          Argued August 4, 2008
         Before: SMITH, FISHER
   and VAN ANTWERPEN, Circuit Judges.

          (Filed: September 5, 2008)
David R. Fine (Argued)
K&L Gates
17 North Second Street
18th Floor
Harrisburg, PA 17101

Jerry S. McDevitt
Mark A. Rush
K&L Gates
535 Smithfield Street
Henry W. Oliver Building
Pittsburgh, PA 15222

Richard L. Thornburgh
K&L Gates
1735 New York Avenue, N.W.
Suite 500
Washington, DC 20006
       Attorneys for Appellant

Mary Beth Buchanan
Robert L. Eberhardt
Rebecca R. Haywood (Argued)
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
       Attorneys for Appellee


                OPINION OF THE COURT


                              2
FISHER, Circuit Judge.

        This appeal presents questions of both factual and legal
significance. Factually, we write yet another chapter in the
ongoing appellate saga surrounding the criminal prosecution of
Dr. Cyril H. Wecht, a renowned former county coroner whose
name and face have appeared in the media over the past several
decades. Legally, we decide issues surrounding one of the most
rooted and basic of our Constitution’s guarantees of individual
liberties: the right not “to be twice put in jeopardy of life or
limb” for the same offense. U.S. C ONST. amend. V.

                               I.

       The facts of Wecht’s celebrated past and more recent
criminal charges are amply described in our previous opinions
deciding interlocutory appeals in this matter. See United States
v. Wecht, 

, 197-98 (3d Cir. 2007) (Wecht I); United
States v. Wecht, --- F.3d ----, 

, at *1 (3d Cir.
Aug. 1, 2008) (Wecht II). We therefore need not dwell on those
facts here.

       We pick up the story on January 28, 2008, when trial
began after a week of jury voir dire proceedings. At issue were
forty-one counts of theft from an organization receiving federal
funds, and wire and mail fraud. After twenty-three trial days, on
March 17, 2008, counsel delivered closing arguments, and the
District Court instructed the jury. Among its many instructions
was the following:


                               3
       “The number of offenses charged is not evidence
       of guilt and should not influence your decision in
       any way. You must separately consider the
       evidence that relates to each charge, and you must
       return a separate verdict for each offense.

              For each offense charged you must decide
       whether the government has proven beyond a
       reasonable doubt that the defendant is guilty of
       that particular offense.

              Your decision on one offense, whether
       guilty or not guilty, should not influence your
       decision on any of the other offenses charged.
       Each offense should be considered separately.”

The jury began its deliberations on March 18, 2008.

       The following week, on March 27, 2008, the jury sent the
District Court a note that read: “Out of the 41 counts if any one
or more count the jury cannot come to unanimous agreement on,
does that constitute a hung jury?” The District Court consulted
with counsel and, with their consent, sent the following written
response to the jury:

       “The answer to your question is ‘no.’ It is your
       duty, as jurors, to consult with one another, and to
       deliberate with a view to reaching an agreement if
       you can do so without violence to your individual
       judgment. Each of you must decide the case for
       yourself, but do so only after an impartial


                                4
       consideration of the evidence in the case with
       your fellow jurors. In the course of your
       deliberations, do not hesitate to re-examine your
       own views, and change your opinion, if convinced
       it is erroneous. But do not surrender your honest
       conviction as to the weight or effect of evidence
       solely because of the opinion of your fellow
       jurors, or for the mere purpose of returning a
       verdict.”

       Another week later, on Thursday, April 3, 2008, the jury
sent a note to the District Court, which included the following
language:

       “After considering all counts in a variety of ways
       and in reconsideration of all individual opinions
       according to the court instructions – we have
       unanimously agree [sic] we have reached an
       impasse & respectfully request direction from the
       court. We agree additional deliberation would not
       be helpful.”

The District Court read and showed this note to counsel and told
them that it was inclined to poll the jurors individually to ask
whether they were “hopelessly deadlocked” and whether further
deliberations would lead to a unanimous verdict, and then to
read to the jury Instruction 9.05 of the Third Circuit’s model
criminal jury instructions (Instruction 9.05).

      After informing counsel of its intentions, the District
Court allowed them time to consider the issue. After counsel


                               5
deliberated, the Government suggested to the District Court that
it send to the jury a note asking if it could reach a unanimous
verdict on any of the counts because “the Government is not
convinced that the jury understands or perhaps is apprised that
a partial verdict is a possibility.” The Government then
suggested that, if the jury responded that it could not reach a
partial verdict, the District Court should then give Instruction
9.05, but not conduct individual polling.

       Defense counsel objected to the Government’s proposed
course of action. He suggested instead that the District Court
bring the jurors into the courtroom and poll them individually,
but if each expressed that additional deliberations would not
break the deadlock, that the Court declare a mistrial and
discharge the jury.

       The District Court decided to do what it had originally
suggested. Accordingly, it had the jurors return to the
courtroom. It polled them individually, asking the following
two questions: (1) “Do you agree that the jury is hopelessly
deadlocked?”; and (2) “Do you believe that further deliberations
would not lead to a unanimous verdict?” Each responded to
both questions affirmatively, i.e., that he or she believed the jury
to be hopelessly deadlocked and that additional deliberations
would not be helpful. The District Court then read Instruction
9.05 to them:

       “Members of the jury, I am going to ask you to
       return to the jury room and deliberate further. I
       realize that you are having some difficulty
       reaching unanimous agreement, but that is not


                                 6
      unusual. And often after further discussion, jurors
      are able to work out their differences and agree.

              It is your duty, as jurors, to consult with
      one another, and to deliberate with a view to
      reaching an agreement if you can do so without
      violence to individual judgment. Each of you
      must decide the case for yourself, but do so only
      after an impartial consideration of the evidence in
      the case with your fellow jurors. In the course of
      your deliberations, do not hesitate to re-examine
      your own views, and change your opinion, if
      convinced it is erroneous. But do not surrender
      your honest conviction as to the weight or effect
      of evidence solely because of the opinion of your
      fellow jurors, or for the mere purpose of returning
      a verdict. Listen carefully to what the other jurors
      have to say, and then decide for yourself if the
      government has proved the defendant guilty
      beyond a reasonable doubt.

             What I have just said is not meant to rush
      or pressure you into agreeing on a verdict. Take
      as much time as you need to discuss things.
      There is no hurry.

             With that instruction, I will return you to
      the jury room. Thank you.” 1

      1
      We have quoted Instruction 9.05 as it appears in our
model criminal jury instructions. What the District Court

                               7
The District Court then sent the jurors back to deliberate, which
they did for an additional twenty minutes that day.

       After the jurors left the courtroom, the Government
renewed its request that the District Court ask the jurors
collectively if they could reach a partial verdict. The District
Court denied the request. After formal proceedings recessed,
the Government filed a motion requesting for the third time that
the District Court give the jury a partial verdict instruction. In
a written filing on April 4, 2008, Wecht’s counsel objected to
the proposed instruction and cross-moved for a mistrial. He
gave the following reason for mistrial:

       “[T]he defense respectfully moves for the
       discharge of the jury and declaration of a mistrial
       in light of the jury’s unqualified individual
       declarations that they are hopelessly deadlocked
       and that further deliberations would not lead to
       unanimous verdicts. Indeed, requiring a jury to
       continue deliberations despite genuine and
       irreconcilable disagreement more often than not
       defeats the ends of public justice; not only will
       such compulsion needlessly waste valuable
       judicial resources, it may coerce erroneous
       verdicts.”




actually read to the jury does not differ from the model in any
material way.

                                8
Later that day, the District Court denied the Government’s
partial verdict instruction request, but did not at that time
address the defense motion for a mistrial.

       On Monday, April 7, 2008, after the jury resumed its
deliberations for the first time since the prior Thursday, the
District Court entered an order denying Wecht’s written motion
for a mistrial. The jury deliberated for four hours on that day.

       Shortly before 9:00 the next morning, April 8, 2008, the
District Court clerk telephoned counsel and entered the
following on its docket: “Counsel for the Government and
Defense and all parties are hereby ORDERED to appear today,
04/08/08 at 9:15 AM.” Neither the telephone call nor the
electronic notice described the purpose for which counsel were
summoned.

       At 9:20 a.m. on April 8, 2008, with the jury present, the
District Court opened the proceeding as follows:

       “THE COURT: Good morning. Thank you all
       for gathering pursuant to the notice on the
       Electronic Case Filing system.

               For your and the jury’s safety and the
       preserved good order, I would ask that you follow
       the following instructions this morning:

              Everyone should remain in their seats
       throughout this proceeding from now until when
       the jury and I exit the courtroom.


                               9
      No one will be permitted to be running in
and out of the courtroom as happened last week.

       Secondly, I expect everyone to be quiet,
and if anyone wants to make motions or
objections to this proceeding or whatever, they
may do so in writing on ECF, as we have done
throughout the trial.

       If anyone is unwilling to abide by these
instructions, I will give you time now to exit.

      Thank you for your assistance and
cooperation.

       The jury has informed the bailiff that they
remain hopelessly deadlocked and are unable to
reach a unanimous verdict on the defendant’s
guilt on any of the 41 counts and are unable to
reach a unanimous verdict on the defendant not
being guilty of any of the 41 counts.

      The jurors’ note will be marked as Court
Exhibit 13, and I have copies thereof, which you
can pick up when we’re done with this
proceeding, which has deleted the names of
presumably the foreperson and secretary.

       The names of the jurors have not been
released pursuant to my Order of Court. Until the



                       10
Third Circuit determines otherwise, that will
remain in effect.

       Thus, defendant is still charged with each
of the 41 counts with the constitutional
presumption of innocence as to each of the 41
counts.

       It is the government’s responsibility to
decide whether or not to retry the defendant.

      Does the government have a decision
today whether the government will retry the
defendant?

      [GOVERNMENT]: We do, Your Honor,
and we will.

        THE COURT: I would ask that by Friday
at noon that the government file a notice as to
which of the counts, which could be as few as one
or as many as the 41, which of the counts will be
tried in the retrial. Is the government prepared to
proceed immediately to retry the case?

       [GOVERNMENT]: We are, Your Honor.

     THE COURT: Is the defense prepared to
immediately retry the case?




                        11
      [DEFENSE]:       We will have several
motions to make before that happens.

      THE COURT: Okay. Just for everyone’s
scheduling purpose, I will set the trial for May 7th
– excuse me – May 27th, which is the day after
Memorial Day, May 27, 2008, at nine a.m.

        That should give defense and the
government sufficient time to file whatever
motions they wish to respectively file. On behalf
of the defendant, when would you like to file any
motions you wish to file, sir?

       [DEFENSE]: I will need some time to
think about that. This is quite a surprise.

       THE COURT: Okay. I know everyone
needs a little rest, so I appreciate that matter. I
would ask the defense, if you would kindly for
me, please file any motions you have by noon on
April 18, 2008.

       If you find after reflection that date doesn’t
work for you, then just file an appropriate motion,
and I will work with you in that regard.

      I will send out a scheduling order as to the
May 27th, 2008 date without prejudice to
whatever defendant’s motions will come before
me.


                         12
              Before I declare a mistrial and discharge
       the jury, I wish to express several things.

              First of all, I want to thank our wonderful
       court reporters . . . .”

After thanking various court personnel and the jurors, the
District Court stated: “I declare a mistrial. I discharge the jury
and the alternate jury . . . .” The jury note to which the District
Court referred but which, as indicated, was not shown to counsel
until after the jury was already discharged, stated in its entirety:

       “Pursuant to court instructions the jury contends
       we have exhausted all further deliberation efforts.
       We agree unanimously that we are unable to
       reach a unanimous verdict – on all 41 counts and
       are essentially deadlocked in the case of United
       States of America vs. Cyril H. Wecht.”

       On Monday, April 14, 2008, Wecht filed a motion to
dismiss the indictment and preclude the Government from
further prosecution in violation of the Double Jeopardy Clause
of the Fifth Amendment. The Government responded on
April 17, 2008. The District Court denied the motion on
April 29, 2008.

       In its twenty-one-page order denying the motion, the
District Court offered a number of rationales. First, the District
Court reasoned that, because Wecht had moved for a mistrial the
previous week, he is deemed to have consented to the
declaration of mistrial on April 8, 2008. Second, the District


                                13
Court asserted that Wecht consented to the mistrial because,
during the April 8, 2008 proceeding, his counsel did not object
to the mistrial. Third, the District Court concluded that “it
cannot be seriously disputed that the jury was hopelessly
deadlocked, and that, therefore, manifest necessity required
declaration of a mistrial and discharge of the jury.”

       That same day, Wecht filed a notice of appeal to this
Court from the order denying dismissal of the indictment.
Wecht also filed a motion in the District Court seeking a stay of
the retrial pending appeal. The District Court denied that
motion on May 2, 2008, writing in its fifteen-page order that
Wecht’s appeal to the Third Circuit was “frivolous” and that he
was seeking “to delay these proceedings.” Wecht then filed an
emergency motion for a stay in our Court, which we granted on
May 8, 2008.

                               II.

       We have jurisdiction over the District Court’s order
denying Wecht’s motion to dismiss the indictment on double
jeopardy grounds under the collateral order doctrine. Abney v.
United States, 

, 659 (1977). Whether retrial is
permitted in accordance with the Double Jeopardy Clause
depends on whether the first trial has ended with a properly
declared mistrial. United States v. Rivera, 

, 54 (3d
Cir. 2004). The degree of deference we accord to the District
Court’s mistrial declaration varies depending on why the Court
reached the decision, as well as whether it exercised sound
discretion in reaching it. See Arizona v. Washington, 

497, 507-10 & n.28 (1978). We will explore these degrees of
deference later in the opinion. See III.C, infra.

                               III.

A.     The Ideal

        We begin by discussing the hallmark of sound discretion
in this area: the procedures that district courts should follow
prior to declaring a mistrial based on a deadlocked jury. See
United States v. Dixon, 

, 1311 (8th Cir. 1990)
(“What we seek is assurance on the record that the district court,
in declaring a mistrial, acted responsibly and deliberately, and
accorded careful consideration to [the defendant’s] interest in
having the trial concluded in a single proceeding.” (internal
quotation marks omitted)). We find useful the Third Circuit’s
model criminal jury instruction 9.06, approved in January 2007,
which consists not of a jury instruction, but of the following
comment (Comment 9.06):

       “If the jury indicates that it is still deadlocked
       after the court has given instruction 9.05
       (Deadlocked Jury – Return for Deliberations), the
       Committee recommends the following procedure
       be followed and recorded.

               First, to determine whether a supplemental
       charge is necessary, the court should question the
       foreperson, but must take steps to ensure that the
       foreperson does not reveal either the numerical
       split on the jury or the position of the majority.


                               15
See United States v. Fiorilla, 

, 175
(3d Cir. 1988); Government of Virgin Islands v.
Romain, 

(3d Cir. 1979). For
example, the court may address the foreperson as
follows:

       ‘Advise me of the status of
       deliberations. If the jury is divided,
       I do not want to know the numbers
       or the direction. I only want to
       know whether in your judgment
       there is a reasonable probability
       that the jury can arrive at a
       unanimous verdict in this case if
       sent back for further deliberations.’

        Second, if the foreperson indicates that the
jury is deadlocked, the court should question each
juror, asking ‘Do you agree that there is a
hopeless deadlock which cannot be resolved by
further deliberations?’

        Third, if jurors’ answers reflect that they
are deadlocked, the court should excuse the jury
and hold a hearing with counsel and the
defendant. The court should elicit the positions of
all the parties, taking particular care to get a
record of the position of the defendant(s) and
defense counsel on whether to declare a mistrial.
If the court declares a mistrial that is not required
by manifest necessity, the Double Jeopardy


                         16
Clause will bar a retrial of the case unless the
defendant consented to the mistrial. See United
States v. Dinitz, 

(1976); United
States v. Rivera, 

(3d Cir. 2004).
When the defendant does not consent to the
mistrial, the courts consider a number of factors to
determine whether the mistrial represents an
abuse of discretion and whether it bars further
prosecution:

       1.         a timely objection by the defendant;

       2.         the jury’s collective opinion that it
                  cannot agree;

       3.         the length of jury deliberations;

       4.         the length of the trial;

       5.         the complexity of the         issues
                  presented to the jury;

       6.         any proper communications
                  between the judge and jury;

       7.         the effects of exhaustion and the
                  impact of coercion of further
                  deliberations on the jury.

See [citation].



                            17
              If the court concludes that a mistrial is
       necessary, the court should make an explicit
       finding of manifest necessity. For example, the
       court may state:

               ‘Based on an evaluation of the
               following factors (state factors
               relevant to case), I find that the jury
               is unable to reach a verdict, that
               further deliberations would be
               futile, and that there is no
               alternative but to declare a mistrial
               for reasons of manifest necessity
               and to dismiss the jury.’

              Fourth, the court should call the jury back
       into the courtroom and discharge the jurors.”

Today we hold that district courts in our Circuit should follow
the above procedure prior to declaring a mistrial based on a
deadlocked jury. We use the word “should” instead of “must”
because the orderly process of jury deliberations rests in the
discretion of the trial judge, and we do not wish to bind his
hands without regard to the factual and procedural history in any
individual case. See United States v. Trala, 

(3d
Cir. 2004) (“it is well-established that [a district court] has broad
discretion to determine how long jury deliberations should
continue”), vacated on other grounds, 

(2006).
We also note that some of our sister circuits have interpreted the
Supreme Court’s precedent in Washington to hold that “the trial
judge does not have to make an explicit finding of ‘manifest


                                 18
necessity’ or expressly state that particular alternatives were
considered and rejected.” 

.

        Again, we do not turn Comment 9.06 into a mandate, but,
all else being equal, a district court’s explanation of its decision
on the record helps the parties, this Court on appeal, and the
district court itself in its exercise of sound discretion. See 

we believe that there are few situations in which the
procedure outlined in Comment 9.06 would not be the most
desirable one to follow. Thus, it should be followed in cases
involving a mistrial declaration based on a deadlocked jury.

      In addition, district courts must follow Federal Rule of
Criminal Procedure 26.3, which provides:

       “Before ordering a mistrial, the court must give
       each defendant and the government an
       opportunity to comment on the propriety of the
       order, to state whether that party consents or
       objects, and to suggest alternatives.”

Here, we use the word “must” because the Rule itself uses that
word. We note further that Comment 9.06 states that “[t]he
court should elicit the positions of all the parties” in the third
step of its outlined procedure. We do not equate that
recommendation in Comment 9.06 with the mandate in Rule
26.3 because doing so would attach a precise time stamp to Rule
26.3 when its text merely states, “[b]efore ordering a mistrial.”
At the same time, district courts should be mindful to follow
Rule 26.3 at a sensible moment, which often will be one that is



                                19
closer to the actual moment in which a mistrial is declared. We
will explain why shortly. See III.B, infra.

       We have therefore summarized the ideal set of
procedures – Comment 9.06 combined with Rule 26.3 at an
opportune moment – to be followed by district courts when
faced with the decision to declare a mistrial leading to the
discharge of a deadlocked jury.

B.     The Violation

        The District Court here did not follow the ideal set of
procedures as we have outlined in the previous subsection. It is
clear that, after the jury indicated that it was still deadlocked
after receiving Instruction 9.05 in full, the Court did not follow
Comment 9.06. It did not question the foreperson, poll the
jurors individually, or “hold a hearing with counsel and the
defendant” outside the presence of the jury; it performed those
actions before giving Instruction 9.05. The sequence matters
because each time Instruction 9.05 or a similar supplemental
charge is given, the jury deliberates further, and any progress
that is made during those additional deliberations might be
unaccounted for when the trial judge then declares a mistrial
precipitously. By following Comment 9.06 just prior to
declaring a mistrial, the trial judge ensures that those additional
deliberations are reflected in his decisionmaking.2

       2
         It appears that the District Court gave Instruction 9.05
partially on March 27, 2008 in response to the jury’s question
pertaining to partial verdicts, and then gave it fully on April 3,
2008 in response to the jury’s first expression of deadlock. It

                                20
        Further, the District Court did not “make an explicit
finding of manifest necessity,” under the seven factors listed in
the third step of Comment 9.06, prior to calling the jurors back
into the courtroom and discharging them. The Court’s ex post
order on April 29, 2008 comes far too late to serve to comply
with Comment 9.06 when a mistrial was declared back on
April 8, 2008. Still, because today’s decision leaves Comment
9.06 as a recommendation instead of turning it into a mandate,
we do not state that the Court “violated” Comment 9.06.

       Federal Rule of Criminal Procedure 26.3, however, is
another matter. Despite the District Court’s proclamation that
“[t]here can be no doubt, on the record before this Court, that
over a five day period, this Court fully and faithfully complied
with Fed. R. Crim. P. 26.3 in letter and in spirit,” we find on the
present record that the Court did indeed violate the Rule. We
repeat that the Rule’s text states only that a court must consult
with counsel “[b]efore ordering a mistrial.” The Court here did
so consult before ordering a mistrial, specifically on April 3,
2008.

       But April 3, 2008, was five days prior to when the
District Court actually declared the mistrial. On the one hand,
we could interpret “before ordering a mistrial” literally as any
time (no matter of what duration) before ordering a mistrial, but


could be argued, then, that the District Court followed much of
Comment 9.06 after it gave the partial Instruction 9.05. But the
ideal, nonetheless, would have been for the District Court to
follow all of Comment 9.06 after giving the full Instruction 9.05
and the jury again expressing deadlock.

                                21
doing so would effectively render the Rule a nullity. The 1993
Advisory Committee Notes to the Rule state, inter alia:

       “The Rule ensures that a defendant has the
       opportunity to dissuade a judge from declaring a
       mistrial in a case where granting one would not be
       an abuse of discretion, but the defendant believes
       that the prospects for a favorable outcome before
       that particular court, or jury, are greater than they
       might be upon retrial.”

Thus, consulting with counsel too early (and never doing so
again prior to declaring mistrial), albeit within the literal text of
the Rule, is not consistent with the spirit and purpose of the
Rule. This is so because whether “the prospects for a favorable
outcome” are greater in counsel’s view depends on the full
panoply of factual and procedural information available to
counsel just prior to mistrial declaration, rather than well before
that when counsel does not yet have that information. In sum,
intervening events might change trial strategy, such that, when
a trial judge follows Rule 26.3 too early, the corresponding
hearing or consultation fails to represent the parties’ position as
accurately as it would were Rule 26.3 followed at a moment
closer to the actual mistrial declaration.

       The question then, is whether, in light of the present
record, the District Court violated Rule 26.3 by “following” it
too early. We answer this question in the affirmative. It was
laudable for the District Court to consult with counsel as to what
it should do after the jury’s first note expressing deadlock.
Nevertheless, too many intervening events transpired between


                                 22
that moment and the ultimate mistrial declaration for the Court
to rely on its initial compliance with Rule 26.3 as satisfying its
obligation to follow the Rule for all intents and purposes until
the jury’s discharge.        The intervening events included:
(1) giving the jury Instruction 9.05 on a Thursday, (2) twenty
minutes of additional deliberation that day, (3) recessing the jury
for the weekend, (4) four additional hours of deliberation on the
following Monday, and (5) a second jury note expressing
deadlock phrased differently from the first. These intervening
events heightened the possibility that counsel would have
different views or arguments to make had the District Court
consulted with them again after the events.

         Moreover, the record in this case indicates that, when the
District Court received the first jury note of deadlock on April 3,
2008, it had no intention to declare a mistrial at that time. In
fact, it had already expressed to counsel its intention to poll the
jurors individually and give them Instruction 9.05 before
defense counsel requested a mistrial. The consultation that the
District Court had with counsel on that date, therefore, was not
pursuant to Rule 26.3, that is, designed to elicit counsel’s views
with respect to the propriety of a mistrial; rather, the
consultation was a tangential one designed (1) to inform counsel
of the first jury note expressing deadlock, and (2) to elicit their
views as to how to respond to the note. Had defense counsel not
asked for a mistrial at that juncture, that outcome might not have
figured in the consultation at all.

       Without the ability to resort to its conduct on April 3,
2008, the District Court has no basis on which to aver that it
followed Rule 26.3 “fully and faithfully . . . in letter and in


                                23
spirit.” This is so because the District Court did not come close
to following Rule 26.3 at the April 8, 2008 proceeding. First, it
did not show or read to counsel verbatim the second jury note
until after mistrial was already declared. Second, it explicitly
instructed counsel “to be quiet, and if anyone wants to make
motions or objections to this proceeding or whatever, they may
do so in writing on ECF, as we have done throughout the trial.”
Third, it announced the new development and its corresponding
intentions in the jury’s presence.3 At no time during that
proceeding did the District Court solicit counsel’s views as to
the propriety of the impending mistrial declaration. The lack of
information to counsel rendered difficult their ability to make an
informed decision; the effective gag order rendered difficult any
attempt by counsel to urge the District Court to follow Rule 26.3
at that time; and the fact that this all occurred in the jury’s
presence rendered difficult the ability of defense counsel to
object or even ask for a sidebar, for fear that the jury would
blame the defense for prolonging its term of service.

C.     The Remedy

      Our finding that a Federal Rule of Criminal Procedure
has been violated does not, however, answer the question of
what the remedy is for the violation. Wecht has moved to

       3
        We are well aware that the District Court would have
needed the jury in the courtroom to conduct polling, but the
record is abundantly clear that the District Court had no
intention of polling the jurors or following any other portion of
Comment 9.06 or Rule 26.3 on April 8, 2008, other than simply
discharging the jury.

                               24
dismiss the indictment. Insofar as the motion is based on an
alleged violation of the Double Jeopardy Clause caused by a
retrial, we will address that argument shortly. But we must first
reject Wecht’s contention that the indictment must be dismissed
merely because the District Court violated Rule 26.3.

        “The federal criminal rules are not constitutional
imperatives. . . . They are procedural only.” United States ex
rel. Gaugler v. Brierley, 

, 523 (3d Cir. 1973). We
reaffirmed this principle a year later in United States v. Hall,

(3d Cir. 1974), in which we held that a violation
of Federal Rule of Criminal Procedure 41(d), which mandated
that the officer executing a search warrant properly inventory
the property taken,4 did not automatically result in the
suppression of that property as 

. We
explained that the irregularity in the officer’s inventory
procedure in that case was “not ‘constitutionally significant’
under the Fourth Amendment.” 

41(d)
“outlines detailed procedures, it does not expressly address the
remedies, if any, which flow from a failure to adhere to those
procedures.” 

not believe that it was intended that
every violation of the procedures in the rule, however
insignificant and however lacking in consequences, should give
rise to the remedy of suppression.” 

       Like Rule 41(d), Rule 26.3 contains no textual indication
of what the remedy for any violation should be. In United States
v. Berroa, 

(11th Cir. 2004), the Court of Appeals
for the Eleventh Circuit discussed this precise question and

       4
           Rule 41(d) has since been amended.

                                25
acknowledged that it was the first court of appeals to do so. 

Despite the district court’s violation of Rule 26.3, the
court of appeals found that the Rule “is not designed to change
the substantive law governing mistrials.” 

Advisory Committee Notes). It then held that a violation of the
Rule “is one factor to be considered in determining whether a
trial judge exercised sound discretion” in declaring a mistrial.

Notably, the court declined to hold that a
violation of the Rule requires dismissal of the indictment to
avoid a violation of the Double Jeopardy Clause. We agree that
a violation of Rule 26.3 does not always mean that a mistrial
was declared improperly as a matter of constitutional law, and
accordingly hold that the remedy for a violation of Rule 26.3 is
not automatically the dismissal of the indictment.

        We thus proceed to explore the main issue raised in this
appeal: whether, under the substantive law governing mistrials,
the indictment against Wecht must be dismissed because the
District Court improperly declared a mistrial. See 

. “[I]t has long been held that the declaration of a
mistrial sua sponte by a trial court does not automatically bar a
future trial for the same offense.” Crawford v. Fenton, 

, 816 (3d Cir. 1981). The Double Jeopardy Clause permits
retrial following a mistrial when, “taking all the circumstances
into consideration, there is a manifest necessity for the
[mistrial].” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
(1824).5 “The question of whether ‘manifest necessity’ existed

       5
        The analysis is different when the defendant consents to
a mistrial. See Love v. Morton, 

, 133 (3d Cir.
1997). At oral argument the Government conceded that Wecht

                               26
in the case before us is a mixed question of law and fact over
which we exercise plenary review.” 

. At
the same time, where a mistrial is “premised upon the trial
judge’s belief that the jury is unable to reach a verdict, long
considered the classic basis for a proper mistrial[,] . . . [t]he trial
judge’s decision to declare a mistrial when he considers the jury
deadlocked is . . . accorded great deference by a reviewing
court.” 

.

        “The realities of litigation preclude a precise definition of
‘manifest necessity’.” 

. Facts that might
demonstrate manifest necessity include a hopelessly deadlocked
jury, juror bias, and the unavailability of a prosecution witness.

57. The Supreme Court has made it clear that
appellate scrutiny decreases when the mistrial is based on a
deadlocked jury, rather than the absence of a witness:

       “[T]he strictest scrutiny is appropriate when the
       basis for the mistrial is the unavailability of
       critical prosecution evidence, or 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 is the mistrial premised upon
       the trial judge’s belief that the jury is unable to


did not consent to the mistrial in this case, so we proceed only
under the “manifest necessity” analysis.

                                  27
reach a verdict, long considered the classic basis
for a proper mistrial. The argument that a jury’s
inability to agree establishes reasonable doubt as
to the defendant’s guilt, and therefore requires
acquittal, has been uniformly rejected in this
country. Instead, without exception, the courts
have held that the trial judge may discharge a
genuinely deadlocked jury and require the
defendant to submit to a second trial. This rule
accords recognition to society’s interest in giving
the prosecution one complete opportunity to
convict those who have violated its laws.

Moreover, in this situation there are especially
compelling reasons for allowing the trial judge to
exercise broad discretion in deciding whether or
not ‘manifest necessity’ justifies a discharge of
the jury. On the one hand, if he discharges the
jury when further deliberations may produce a fair
verdict, the defendant is deprived of his ‘valued
right to have his trial completed by a particular
tribunal.’ But if he fails to discharge a jury which
is unable to reach a verdict after protracted and
exhausting deliberations, there exists a significant
risk that a verdict may result from pressures
inherent in the situation rather than the considered
judgment of all the jurors. If retrial of the
defendant were barred whenever an appellate
court views the ‘necessity’ for a mistrial
differently from the trial judge, there would be a
danger that the latter, cognizant of the serious


                        28
       societal consequences of an erroneous ruling,
       would employ coercive means to break the
       apparent deadlock. Such a rule would frustrate
       the public interest in just judgments.”

.6 In other words, while
manifest necessity is ultimately a legal issue over which we
exercise plenary review, we accord considerable deference to a
district court’s judgment as to the existence of a deadlocked jury
that manifestly necessitates a mistrial.

        Here, the stated reason for mistrial was a deadlocked
jury; we therefore turn to the record to determine whether it
supports the District Court’s conclusion that the jury was
hopelessly deadlocked. Although the question of manifest
necessity “abjures the application of any mechanical formula,”
Illinois v. Somerville, 

, 462 (1973), the following
non-exhaustive, fact-intensive factors aid our appellate review



       6
        The difference in deference depending on the reason for
mistrial shows why Wecht should not analogize his case entirely
to our decision in Rivera. Although it articulates binding legal
principles, Rivera is based on facts bearing little resemblance to
those in this case. There, the district court declared a mistrial
because of frequent delays, interruptions, and juror inactivity
occasioned by the unavailability of the Government’s key
witness due to a leg injury. We held that the mistrial was
improperly declared, emphasizing that “[w]hat makes this
declaration . . . particularly troubling is that it was due to the
absence of a prosecution 

.

                               29
of the District Court’s determination of manifest necessity in the
context of deadlocked juries:

       “1.    a timely objection by the defendant;

       2.     the jury’s collective opinion that it cannot
              agree;

       3.     the length of jury deliberations;

       4.     the length of the trial;

       5.     the complexity of the issues presented to
              the jury;

       6.     any proper communications between the
              judge and jury;

       7.     the effects of exhaustion and the impact of
              coercion of further deliberations on the
              jury[;]

       8.     whether the court provided counsel an
              opportunity to be heard;

       9.     whether the court considered alternatives
              to a mistrial; and

       10.    whether the court’s decision was made
              after adequate reflection.”



                               30
Comment 9.06 (factors one through seven); United States v.
Byrski, 

, 961 (7th Cir. 1988) (factors one through
seven); United States v. Brown, 

, 36-37 (1st Cir.
2005) (factors eight through ten); see also United States v.
Razmilovic, 

, 137-39 (2d Cir. 2007) (all ten
factors). Again, our enumeration of these factors is meant to
guide district courts and our appellate review in a clear fashion;
we do not mean to suggest that all factors are relevant in all
cases or that some other appropriate consideration might not
animate a district court’s determination.

        We address each factor in turn, beginning with factors
eight through ten because they focus on the District Court’s
procedures (and hence sound discretion) in rendering its
decision and impact the degree of deference we otherwise would
accord under Washington. We note preliminarily that factor
eight mirrors Rule 26.3, and we equate them for purposes of this
discussion. Next, we already have stated that the District Court
fell short of the ideal with respect to its decisionmaking process;
not only did it ignore Comment 9.06, it also violated Rule 26.3.
But we have also held that these failures do not automatically
result in the remedy of dismissal of the indictment. In Berroa,
the Eleventh Circuit explained:

       “Although Rule 26.3 now mandates that which
       was previously strongly advised, the failure to
       hear from the parties has invariably been a factor
       to be considered when applying the manifest
       necessity test. Consistent with the adoption of
       Rule 26.3, a trial court’s failure to hear from the
       parties remains as one of several factors to be


                                31
       considered in determining whether the trial court
       exercised sound discretion. Consistent with the
       manifest necessity test, the extent to which a Rule
       26.3 violation indicates a lack of sound discretion
       must be considered and resolved based upon the
       individual and varying circumstances of each
       case. As Rule 26.3 mandates that a trial court
       provide the parties an opportunity to be heard, the
       failure to comply with that mandate necessarily
       creates a strong suggestion that a trial judge did
       not exercise sound 

; see also 

(“[t]he
dialogue fostered by Rule 26.3 ensures that only those mistrials
that are truly necessary are ultimately granted”); United States
v. Bates, 

, 396 (9th Cir. 1990) (“trial courts are
much more likely to have exercised sound discretion when they
listen to the parties before declaring a mistrial”).

        Today we hold, in accordance with our sister circuit, that
a violation of Rule 26.3 lessens the degree of deference we
accord to a district court’s finding of manifest necessity. Under
Washington, we generally give the highest degree of deference
to a district court’s judgment that a deadlocked jury manifestly
necessitates a 

. But “the deference
accorded the trial judge’s finding of manifest necessity can
disappear, even in the classic case of a hung jury, when the trial
judge has not exercised sound discretion.” 

(citing 

n.28). Exactly how
much deference is lessened is not an exact science: we still are
much more likely to sustain a mistrial declaration based on a


                               32
genuinely deadlocked jury than on any other basis, but our
review will be somewhat more rigorous when we perceive
procedural flaws in a district court’s decision.

        Our deference to the District Court’s determination of
manifest necessity in this case is further decreased by factors
nine and ten – whether the court considered alternatives to a
mistrial and whether it made its decision after adequate
reflection. See 

(“A trial court’s abrupt
declaration of a mistrial suggests that it failed to exercise sound
discretion.”). Although the District Court gave Instruction 9.05
as an alternative to mistrial on April 3, 2008, it did not consider
whether it might be fruitful to give it or another supplemental
instruction again on April 8, 2008. We acknowledge that it is
possible that the District Court might have considered
alternatives or given additional reflection to the matter in its
subjective mind. But we decline to credit these private thoughts
– assuming arguendo that they existed – under factors nine and
ten of our review when they do not manifest themselves on the
record. See 

(“Determining that a mistrial was proper
and retrial permissible because reversal was certain is an
objective, not subjective, inquiry to be based on the record as it
existed at the time of the mistrial.”).

        Some loss of deference due to district court procedures
indicative of a lack of sound discretion, however, does not
necessarily mean that there was no manifest necessity to declare
a mistrial as a matter of substantive fact. See 

(“The overarching question on appeal is whether the
district judge’s declaration of a mistrial was [manifest]ly
necessary under all the circumstances.” (internal quotation


                                33
marks omitted)). As we previewed in the jurisdictional section
of this opinion, see 

, our standard of review is impacted
by a district court’s exercise of sound discretion. A district
court still could have come to a correct conclusion based on the
record facts; we simply elevate our appellate scrutiny when a
district court violates Rule 26.3 or makes other significant
procedural errors in reaching that conclusion.

       This is precisely what happened in Berroa. There, the
defendant appealed the district court’s allegedly improper
declaration of a mistrial under procedural circumstances similar
to the case at bar. The defendant was tried on various drug,
firearm, and conspiracy 

. After a day
or so of deliberations, the jury sent a note to the district court
stating: “We have agreed on some counts. However, we are
unable to come to a decision on others.” 

point
(May 29th), the district court consulted counsel for all parties
and then gave a modified Allen charge (akin to our Instruction
9.05), and the jury continued its deliberations. 

later
(May 30th), the jury informed the court: “We again have made
some decisions. However we can not [sic] come to an
agreement on others.” 

court declared a mistrial
on each of the undecided counts, without providing the parties
an additional opportunity to comment or recommend
alternatives, as required by Rule 26.3. 

whether this procedural history exhibited
manifest necessity for a mistrial, the Court of Appeals for the
Eleventh Circuit stated:




                               34
“[T]he events leading to the decision to declare a
mistrial were not rapid, and we cannot say that the
trial judge’s decision was precipitous. Without
dispute, after receiving the jury’s note on the
afternoon of May 30 declaring that it could not
agree on some counts, the district court convened
counsel and the jury, took the verdict and
immediately declared a mistrial as to the other
counts.     Significantly, before declaring the
mistrial, the district court consulted neither the
defense attorneys nor the government.

The events of the afternoon of May 30, however,
do not stand in isolation. The jury’s note on that
date was the second such note from the jury. In
response to the first note, sent on May 29, the
court gave the jury a modified Allen charge.
Additionally, the second note was not sent shortly
after the jury began deliberations, but on the third
day of deliberations and the day after receiving
the modified Allen charge. Considered as a
whole, the circumstances reveal that the court’s
decision was not an abrupt, precipitous response
to a single note from the jury, but was a deliberate
decision made subsequent to three days of
deliberations, a prior note declaring an inability to
agree, and the jury’s prior receipt of a modified
Allen charge.

...



                         35
       On balance, we find that the district court erred in
       failing to consult with the parties prior to
       declaring a mistrial after receiving the second
       note from the jury stating its inability to reach a
       decision. While this error weighs in favor of a
       finding that the trial judge did not exercise sound
       discretion, the remainder of the record is to the
       contrary. Accordingly, we find that the trial judge
       exercised sound discretion and defer to his finding
       of manifest necessity to declare a mistrial.”

The facts relevant to manifest necessity in our
case – two jury notes, the district court’s consultation with
counsel after the first jury note but violation of Rule 26.3 after
the second jury note – parallel Berroa almost exactly.
Therefore, our own analysis of manifest necessity appropriately
conforms with Berroa’s.

       Returning, then, to the Comment 9.06 factors that aid in
our appellate review of a district court’s finding of manifest
necessity, we do not believe that the first factor – a timely
objection by the defendant – carries much weight in this case.
On the one hand, it was Wecht who argued rather vigorously for
a mistrial on April 4, 2008, explaining that his written motion
was filed “in light of the jury’s unqualified individual
declarations that they are hopelessly deadlocked and that further
deliberations would not lead to unanimous verdicts.” On the
other hand, we have already explained why the District Court’s
course of action on April 8, 2008, rendered difficult the ability
of defense counsel to object at that time. Hence, the first



                               36
“manifest necessity” factor of whether the defendant timely
objected does not weigh in favor of or against a mistrial.

       What carries far more weight in this case is the second
factor: the jury’s collective opinion that it cannot agree. Here,
we have two notes expressing jury deadlock.7 The first note –
and Wecht’s motion of April 4, 2008 confirms this interpretation
– clearly expresses that the jury was hopelessly deadlocked and
that no additional deliberations would help the jury reach a
unanimous verdict on any of the counts. See 

(earlier determination by district court that additional
deliberations would be helpful “does not, however, expunge the
record of all prior evidence of deadlock,” when prior notes sent
by jury indicated deadlock). Wecht argues on appeal that the
second note expressing jury deadlock detracts from, rather than
reaffirms, the first note. We disagree.

       In this regard, Wecht argues first that the jury might have
been close to a verdict because the second note uses the phrase
“essentially deadlocked” rather than “hopelessly deadlocked.”
However, we are unwilling to hold the jury to Webster’s
Dictionary’s precise definition of adverbs and thereby read a
material distinction between “essentially” and “hopelessly,” or
more specifically, that “essentially deadlocked” might somehow

       7
        Even more accurately, we have three such notes. The
jury’s March 27, 2008 note, though phrased as a question about
hung juries, already hinted at the emergence of an impasse. For
the sake of clarity, however, the remainder of the discussion in
the principal text will refer to the April 3, 2008 note as the first
note and the April 7 (or 8), 2008 note as the second note.

                                37
indicate an imminent break in the deadlock. See United States
v. Vaiseta, 

, 819 (7th Cir. 2003) (defendant’s
“‘might have’ argument, without any evidence that his rights
and interests were compromised by the declaration of a mistrial,
cannot prevail against the specific facts and circumstances of
this case”). We thus doubt that the jury intended to water down
its expression of deadlock by using a different adverb in the
second instance. Instead, any clear movement toward a
unanimous verdict between the two notes is perceptible only if
one reads the second note in a highly counterintuitive manner.

        Second, Wecht argues that the second note states that the
jury was unable to reach a verdict “on all 41 counts,” which
implies that it could reach or was close to reaching a verdict on
some subset of those counts. We believe that the likelihood of
this misunderstanding is low. The District Court’s March 27,
2008 response to the jury, which stated that the inability to reach
a unanimous verdict on only some of the counts does not
constitute a hung jury, should have cleared up any confusion,
especially in light of the Court’s abundantly clear partial verdict
instruction on March 17, 2008.8 Even assuming arguendo that
any confusion lingered, we simply do not agree that it offsets the
jury’s repeated expression of genuine deadlock.

       We move on, then, to the third through fifth factors
dealing with the length and complexity of trial and length of
deliberations, noting preliminarily that “[t]here is no uniform
minimum period during which a jury must deliberate before the

       8
       We further note that Wecht himself had objected
vigorously to a partial verdict instruction on April 3 and 4, 2008.

                                38
court may declare a hung jury.” United States ex rel. Webb v.
Court of Common Pleas, 

, 1044 (3d Cir. 1975).
Here, the trial lasted for twenty-three days, and the jury
deliberated for a total of 54.5 hours over a period of ten days.
On the one hand, the issues were relatively complex in that there
were forty-one counts. On the other hand, there was only one
defendant. See 

(“Although the length of
the jury’s deliberation [approximately thirty hours over thirteen
days] was not excessive considering the complexity and length
of the trial [seven defendants and multiple charges against each
defendant tried for thirty-two days over an eight-week period],
neither was it so insubstantial as to cast doubt on the correctness
of the judge’s mistrial declaration.”).9 We believe that, on this
record, the amount of deliberation time corresponded
sufficiently to the length and complexity of the trial, such that

       9
         We contrast our case, for example, with the Second
Circuit’s decision in Razmilovic, in which the court barred
retrial. There, the district court decided “that a single jury note
indicating deadlock created a ‘manifest necessity’ to declare a

. Also, the jury had deliberated for
only three days after a six-week trial involving three defendants,
twenty-one separate counts, and forty witnesses. 

There was also no individual polling of jurors. 

contrast, the District Court here received two jury notes, polled
the jurors individually after the first, and gave them Instruction
9.05 after nine days of deliberation over one defendant after a
six-week trial. There was then an additional half-day of
deliberation on April 7, 2008. This completely different record
does not contain facts akin to the ones that prompted the Second
Circuit to reverse in Razmilovic.

                                39
these factors weigh in favor of the District Court’s finding of
manifest necessity.

        The sixth factor – any proper communications between
the judge and jury – also weighs in favor of the District Court’s
finding because the Court individually polled the jurors, asking
whether they were “hopelessly deadlocked,” and each juror
confirmed what the collective note stated. Although the timing
of this polling was not ideal, see 

, the District Court
nonetheless performed it at a sufficiently informative juncture
to reveal that each juror believed that further deliberations
would not help him in reaching a unanimous verdict. The
issuance of Instruction 9.05 also constituted a proper
communication from the judge back to the jury (as well as an
alternative to mistrial) to give the jury one more opportunity to
reach a unanimous verdict. See United States v. Joyner, 

, 83 (2d Cir. 2000) (proper mistrial declaration following
protracted deliberations, Allen charge, and polling of jurors,
even though defendants claimed that they “were not given the
opportunity to be heard on the issue”); United States v. Simpson,

, 1377 (10th Cir. 1996) (proper mistrial declaration
following jury’s repeated expression of deadlock and jury
foreman’s confirmation, even though “the court did not provide
the parties with a hearing on the necessity of a mistrial”). The
communications between the District Court and the jurors both
individually and collectively thus buttress the conclusion that
the eventual second note expressing jury deadlock represented
a genuine deadlock that could not be broken.10

       10
        As for the seventh factor relating to the danger of a
coerced verdict, we need not dwell on it. There was obviously

                                40
       In sum, the record as a whole in this case supports the
District Court’s conclusion that there was “manifest necessity”
to declare a mistrial without Wecht’s consent. As a result, the
District Court may retry Wecht without violating the Double
Jeopardy Clause, and so it did not err in denying Wecht’s
motion to dismiss the indictment.

                               IV.

       Our holding today that there is no constitutional bar to
retrying Dr. Wecht does not stand for the proposition that he
must be retried. That is a decision that rests with the
Government. Indeed, Wecht’s prosecution is one that already
has spanned more than thirty months. It has resulted in
numerous appeals and emergency motions to this Court and,
with the filing of this opinion, three lengthy precedential
opinions.

       If the Government chooses to proceed with a retrial, our
view is that both sides and the interest of justice would benefit


a possibility that the jury might be coerced into a verdict had it
been sent back for further deliberations. Yet, the District Court
made no finding to this effect on the record, and we do not
presume to know how exhausted the jury was at the point of
mistrial declaration. Again, had the District Court made explicit
findings for each factor under Comment 9.06, we would be in a
much better position to assess this factor. Nonetheless, as in
Berroa, the balance of the factors, even under a less deferential
standard of review, weigh strongly in favor of the District
Court’s finding of manifest necessity.

                               41
from a reduced level of rancor in the courtroom, fresh eyes on
the case, and fewer forays to this Court by the parties, including
intervening parties. This has been a highly charged, lengthy,
and complex case involving serious criminal charges brought
against a prominent public figure. The trial judge has been the
referee in a heavyweight fight, and, as we have ruled, has
generally made the correct calls, with some exceptions. Wecht
II, for example, noted that the District Court initially failed to
follow our mandate from an earlier order. See --- F.3d at ----,

, at *1 n.1. And in today’s decision, even
though there was manifest necessity to declare a mistrial in
satisfaction of the Fifth Amendment, the District Court reached
that conclusion through a highly flawed set of procedures. See

.

        Therefore, in the exercise of our supervisory powers
under 28 U.S.C. § 2106, see, e.g., Gov’t of the Virgin Islands v.
Walker, 

, 376 (3d Cir. 2001), see also Liteky v.
United States, 

, 554 (1994), we will direct that
Judge Schwab be relieved of further duties on this case and that
the Chief Judge of the District Court assign a new judge to
handle any future matters in the case including any retrial.
Although we tread cautiously because “[t]he decision to remove
a judge from an ongoing trial should be considered seriously and
made only rarely,” Huber v. Taylor, 

, 251 (3d Cir.
2008), this case has progressed so unusually as to become sui
generis. See, e.g., Living Designs, Inc. v. E.I. Dupont de
Nemours and Co., 

, 372-73 (9th Cir. 2005)
(concluding under 28 U.S.C. § 2106 that, even absent
allegations of bias, because of the highly unusual procedures the
trial judge employed, “the appearance of justice requires


                               42
reassignment on remand”); Sobel v. Yeshiva Univ., 

,
37 (2d Cir. 1988) (concluding “that it is necessary to remand the
case to a different district judge” because court of appeals was
“disturbed by the manner in which the district court treated this
case on our initial remand”).

        We thus end this chapter in the Wecht appellate saga by
coming full circle. In Wecht I, the issue of whether Judge
Schwab should be recused for bias figured prominently in the
appeal. In that opinion our dissenting colleague concluded
under 28 U.S.C. § 455 “that another judge should preside over
the trial of 

(Bright, J., dissenting).11
As we have just described, the problem today is not so much the
appearance of bias as it is the appearance of litigation at a
combative tenor that likely will not abate were Judge Schwab to
stay on the case. We therefore direct that a less invested
adjudicator take over from here.

                               V.

       For the foregoing reasons, we will affirm the District
Court’s order denying Wecht’s motion to dismiss the
indictment. We nonetheless will exercise our supervisory power

       11
         Certainly Wecht should be pleased with our
reassignment of the case. Not only did he move for Judge
Schwab’s recusal at issue in Wecht I, he did so again under
§ 455 in the form of a petition for writ of mandamus to our
Court, which we denied on January 2, 2008. Wecht then moved
for recusal again under § 455 more recently on April 21, 2008.
Judge Schwab denied the motion on May 8, 2008.

                               43
and remand this case to the Chief Judge of the District Court to
reassign the case to a different judge.




                              44