In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-1228

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

D AWAN A. W ARREN,
                                              Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
        No. 1:07-CR-14-TLS—Theresa L. Springmann, Judge.



    A RGUED O CTOBER 8, 2009—D ECIDED JANUARY 26, 2010




  Before E ASTERBROOK, Chief Judge, M ANION and T INDER,
Circuit Judges.
  T INDER, Circuit Judge. Dawan A. Warren was charged
with bank robbery and using a firearm during a rob-
bery. The jury in his first trial was unable to reach a
verdict. He was tried again before a second jury and
was convicted as charged. Warren appeals, contending
that the second trial violated his Fifth Amendment
right not to be put to double jeopardy and that the evi-
dence was insufficient to sustain his conviction. We affirm.
2                                               No. 09-1228

                      I. Background
  In the afternoon on January 23, 2007, three men robbed
a Tower Bank branch in Fort Wayne, Indiana. (This crime
will be familiar to avid readers of the opinions of this
court. We have already affirmed the convictions of two
of the robbers, see United States v. Moore, 

(7th Cir. 2009), and United States v. Lewis, 

(7th Cir. 2009).) Detective Sergeant Craig Robison, a
member of the Northeast Indiana Federal Bank Robbery
Task Force, received a text message at 1:49 P.M ., notifying
him that a GPS tracking device had been activated. This
meant that the device had been removed from the
bank drawer in which it was located (the bank’s bait
money was embedded with the GPS device), signaling
that the bank had been robbed. Detective Robison used
his hand-held tracking device and headed to the area
from where the device was transmitting—the 4200 block
of Darby Drive. It took him only ten minutes to get
there and when he arrived, the area was already flooded
with other law enforcement officers. The GPS device
indicated that it was within 49 feet of 4229 Darby Drive
when it stopped transmitting.
  Based on the GPS information and the observation
of fresh tire tracks in the snow leading from the road to the
garage at 4217 Darby Drive, law enforcement officers
focused their attention on the house at that address. When
the homeowner Kenyatta Lewis and his wife arrived, the
officers obtained his consent to search the house. The
search led to the discovery of three African-American
men inside: Joseph Lewis, Kenyatta’s cousin; Dontrell
No. 09-1228                                            3

Moore; and Dawan Warren. While officers were in the
garage, Joseph Lewis opened the door from the house
into the garage and was taken into custody. Then the
officers entered the house and found Moore on a toilet
in an upstairs bathroom. The officers discovered Warren,
fully clothed, lying on a bed in an upstairs bedroom.
He had his back toward the door and had a sheet or
blanket on him. With his shotgun pointed at Warren,
an officer ordered Warren to get up out of the bed.
Warren did so. The officer testified that Warren
appeared calm at the time.
  Joseph Lewis, Moore, and Warren fit the general
physical descriptions of the three bank robbers (the
robbers had worn ski masks) given by the bank employee
witnesses. Robber #1 was described as a black male, 5' 6”
or 5' 8", and of medium build. He wore a white shirt
with the number 7 on it (a Michael Vick jersey) under
an opened sweatshirt or flannel shirt. He had on latex
gloves and carried a gun. Robber #2 was a slender, black
male with facial hair (his mask was off to the side). He
was taller than Robber #1—6' or 6' 1"—and wore
greenish, bluish windbreaker-type pants, brand new
white tennis shoes, latex gloves and carried a light-
colored canvas bag. Robber #3 was much larger, heavier,
and stockier than the other two robbers. One of the
robbers had long hair, described as possibly long braids
or dread locks. Lewis was a heavy set, wide, African-
American man and the shortest of the three suspects.
Moore was described as “extremely tall and thin, six feet
tall,” was the tallest of the three men, and had some
facial hair. Warren was much thinner than Lewis and
4                                            No. 09-1228

shorter than Moore. Further details about the robbery
are contained in the Moore, 

, and Lewis, 

, decisions.
  At Warren’s trial, Kenyatta Lewis testified that he
and his wife left early for work on January 23, 2007, and
that no one had permission to be in his house that day.
He testified that he did not know Warren and that
Warren in particular had no permission to be in his
house. Kenyatta testified that he did not recall any
damage to the interior garage door leading into the
house; police officers had found that the door had been
damaged and splintered (as if it had been kicked open).
Kenyatta identified the silver Buick LeSabre parked
inside his garage as Joseph Lewis’s wife’s car. Kenyatta
said that he did not store any clothing or other items in
the attic in his house.
  On the day of the robbery, the police collected
evidence from Kenyatta’s house. In the attic, the police
found several articles of clothing of various sizes,
including a pair of blue nylon-type, wind pants with a
white stripe down the side and a few sweatshirts. A
black plastic trash bag, a handgun, and money, later
identified as bait money from the robbery, were taken
from the attic and other items were collected from the
bedroom.
  As part of their investigation, officers searched two
vehicles: a brown Buick Century which was found ap-
proximately one mile from the bank and identified as the
getaway car, and the silver Buick LeSabre which was
parked in Kenyatta’s garage at a slight angle, suggesting
No. 09-1228                                              5

that the driver had pulled in quickly. The police found a
clear vinyl glove on the front passenger floor area of the
brown Buick Century. They found a pair of vinyl clear
gloves on the rear seat of the silver Buick (Joseph Lewis’s
wife’s car). Inside that vehicle’s trunk, officers found a
brown bag containing a box of gloves and a box of vinyl
examination gloves. DNA testing of a sample obtained
from one of the gloves from the back seat was con-
sistent with Warren’s DNA profile.
  Upon Warren’s arrival at the Allen County Jail on
January 23, a $20 bill was taken from him along with
other property. A $20 bait bill was missing from the
bait money taken during the robbery. The police
compared the serial number on the $20 bill taken from
Warren with the serial number of the missing bait bill.
They matched!
   Warren was charged in an indictment with one count
of bank robbery by force, violence, and intimidation in
violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2
and one count of knowingly using and carrying a
firearm during and in relation to the bank robbery in
violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. Warren’s
first jury trial began on June 3, 2008 and continued for
several days. On June 12, 2008, after deliberating for
over six hours, the jury advised the court that it
believed it was hung. The court proposed two alter-
natives for handling the situation and sought input from
the parties’ counsel. The court suggested asking the jury
foreman whether, given the lateness of the hour (it was
7:30 P.M .), adjourning the proceedings for the evening
6                                                 No. 09-1228

and resuming deliberations in the morning might be
beneficial. If the foreman were to advise the court that
the jury was hopelessly deadlocked and that adjourning
for the night would not help, then that would be
accepted and the court would take up any motions that
were made.
   The parties agreed with the court’s proposal and the
jury was brought into the courtroom. The court did as it
had proposed, and the foreman advised that he did not
think further deliberations would change any juror’s
view. The court had the foreman confer with the jury as
a whole. After a short recess, the foreman stated that the
jury did not feel that returning the next day to resume
deliberations would be of any benefit because everyone
had his or her opinion and the opinions weren’t going
to change. The court asked if there was anything that
it could do to help facilitate further deliberations, and
the foreman indicated that there was nothing that could
be done. After that, the court asked the parties if they
wanted the court to make any further inquiry of the jury,
and the parties indicated that there was none. Thereafter,
the court advised the jury: “I’m going to excuse you from
further service in conjunction with this case. I . . . appreci-
ate the efforts that you have put forward over the last
four days . . . . And I note your very sincere efforts to try
to reach a verdict in this case. . . . I’m going to release
you. Your work with this case is now done.”
  After the jury left the courtroom, the court asked
counsel, “[A]re there any motions to present at this time
in light of this development?,” and Warren’s attorney
No. 09-1228                                                 7

moved “for a mistrial . . . because the jury has repre-
sented . . . that it is hopelessly deadlocked.” The judge gave
each side an opportunity to comment on the propriety of
an order for mistrial, to state whether they consented or
objected and to suggest any alternative. The government
indicated that there appeared to be no reason not to
consent, but wanted to ensure that its right to retry the
case was preserved. The court inquired of defense
counsel if there was any issue with the government’s
right to retry the case; counsel indicated there was none.
Then the judge said, “What I would be inclined to do is . . .
grant the defendant’s request for a mistrial based on
the record that we have before us regarding this jury
being deadlocked.” The judge proposed a telephone
conference to reschedule the trial; a conference was
scheduled for the following week.
  Warren’s next jury trial began on October 1, 2008. This
second jury convicted him of both counts. The district
court sentenced Warren to 327 months’ imprisonment
on Count 1 and 84 months on Count 2, to be served
consecutively. Warren appeals.


                      II. Discussion
  Warren challenges the constitutionality of his second trial
on double jeopardy grounds. He also argues that the
evidence was insufficient to convict him; this argument
seems to be directed solely toward his bank robbery
conviction.
8                                               No. 09-1228

                   A. Double Jeopardy
  Warren argues that his double jeopardy rights were
violated because the district court never actually “de-
clared” a mistrial at the close of his first trial. He also
claims that the court erred in dismissing the jury and
then, after the jury had left, soliciting a motion for a
mistrial. Warren contends that his motion for a mistrial
cannot be deemed his consent to a mistrial because
the jury had already been dismissed.
  No objection to the retrial was raised in the district
court, so we review the double jeopardy claim for plain
error. United States v. Van Waeyenberghe, 

, 958
(7th Cir. 2007). Under this demanding standard of
review, Warren must show that there was an error that
was plain and affected substantial rights. United States
v. Ajijola, 

, 765 (7th Cir. 2009). And we
will not exercise our discretion to correct the error unless
it “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Van
Allen, 

, 819 (7th Cir. 2008) (citations omitted).
  The Double Jeopardy Clause of the Fifth Amendment
protects a criminal defendant from multiple prosecutions
for the same offense. Oregon v. Kennedy, 

,
671 (1982). However, double jeopardy does not preclude
the government from retrying a defendant where a jury
fails to reach a verdict in the first trial. Richardson v.
United States, 

, 324-26 (1984). In United States
v. Perez, 22 U.S. (9 Wheat.) 579 (1824), the Supreme
Court said that “the law has invested Courts of justice
with the authority to discharge a jury from giving any
No. 09-1228                                                9

verdict, whenever, in their opinion, taking all the circum-
stances into consideration, there is a manifest necessity
for the act, or the ends of public justice would otherwise
be defeated.” 

see also United States v. Jorn, 

, 481 (1971). Thus, a jury’s inability to reach a
verdict constitutes the “manifest necessity” that allows
retrial. Arizona v. Washington, 

, 509 (1978);

; see also Oregon v. 

(stating that the hung jury is the “prototypical
example” of a case that meets the “manifest necessity”
standard for lifting the double jeopardy bar); Winston v.
Moore, 

, 946 (1981) (Rehnquist, J., dissenting)
(describing a hung jury as the “classical case of
‘manifest necessity’ ”). In addition, double jeopardy does
not bar a retrial of a defendant where the mistrial is
granted on the defendant’s motion unless “the conduct
giving rise to the successful motion for a mistrial was
intended to provoke the defendant into moving for a
mistrial.” Oregon v. 

; see also
United States v. Dinitz, 

, 610-11 (1978).
  Warren errs in suggesting that a district court must
articulate the pronouncement of a mistrial using some
particular verbal formulation such as “I declare a mis-
trial” or “I order a mistrial.” The case law does not
require that. What the case law does require is “manifest
necessity” or the defendant’s consent to a mistrial
(usually through a motion seeking that result). We have
both here.
 We defer to the district court’s discretion in deter-
mining that nothing more could be done to enable the
10                                            No. 09-1228

first jury to reach a verdict and that therefore the jury
should be discharged from further service. See 

; 

. The district court
inquired of the foreperson whether resuming delibera-
tions the following day would help, and the foreperson
said that he didn’t think it would. The court gave the
foreperson an opportunity to confer with the entire jury
and then confirmed that nothing could be done to
facilitate further deliberations. The parties seemed
satisfied with the court’s questioning of the jury before
excusing them from further service. We find no error,
let alone plain error, in the district court’s deter-
mination that the first jury was unable to reach a verdict
even with further deliberations. This provided the “mani-
fest necessity” for discharging the jury without giving
a verdict and removed the double jeopardy bar to a
second trial. Once the district court had discharged the
jury, there was no need for a motion for a mistrial. The
district court’s words and actions in discharging the jury
had the effect of “declaring” a mistrial, a declaration
clearly memorialized in two docket entries on the
same date as the hung jury’s discharge.
  And we also have Warren’s consent to a mistrial. Though
Warren claims his counsel was merely humoring the
court in moving for a mistrial, nothing the court did or
said required Warren to move for a mistrial. The court
did inquire of counsel (presumably directing her
remarks to both the government and the defense) as to
whether there were any motions, but the court did not
single out either the prosecution or defense. In response,
Warren’s counsel stated that he was moving for a mistrial
No. 09-1228                                               11

“because the jury has represented . . . that it is hopelessly
deadlocked.” It was the hung jury that moved Warren
to request a mistrial. While Warren’s motion for a
mistrial removes the double jeopardy bar (there is no
suggestion that Warren was provoked into moving for a
mistrial), it was not necessary in order to remove that
bar—the jury’s inability to reach a verdict had already
removed it. The fact that the jury had been dismissed
before Warren moved for a mistrial is inconsequential.
  Warren also argues that the Federal Rules of Criminal
Procedure require that a mistrial be formally “ordered” or
“declared,” citing Rules 26.3 and 31(b)(3). It is true that
these rules do refer to the ordering or declaration of a
mistrial, but they do not establish a rigid formula to
which the trial court must conform to satisfy the con-
stitutional and procedural interests at stake. (Warren cites
no case law interpreting these rules as requiring a
formal “order” or “declaration,” and we have not found
any either.) Here, the district judge gave both the defen-
dant and the government an opportunity to suggest
alternatives, to state whether they consented or objected,
and to comment on the propriety of a mistrial under the
circumstance of the jury’s inability to reach a verdict,
satisfying Rule 26.3’s requirements. And no fair criticism
can be made of the court’s poll of the jury about whether
a verdict could be reached, even after a recess for an
evening’s rest. Neither Rule 26.3 nor 31(b)(3) requires
more. As the advisory committee notes to Rule 26.3
state, the rule is “designed to reduce the possibility of an
erroneously ordered mistrial . . . . The Rule is not
designed to change the substantive law governing mis-
12                                              No. 09-1228

trials.” Fed. R. Crim. P. 26.3 advisory committee’s note;
see also United States v. Berroa, 

, 1058 (11th
Cir. 2004) (“The primary effect of Rule 26.3 reveals itself
as prophylactic; Rule 26.3 recalls to trial judges the
critical importance of consultation with counsel.”);
United States v. Sloan, 

, 394 (4th Cir. 1994)
(stating that “the need for careful consideration of alterna-
tives to mistrial . . . was one of the factors that led to
[Rule 26.3]”).
   Although the trial judge did not phrase her ruling in
the exact words as an “order” or “declaration” of a mis-
trial, what she said in discharging the jury, granting
the defendant’s motion for a mistrial, and setting the
matter for a conference to select the next trial date was
plenty to constitute such a ruling. Even if the judge
could be criticized for not orally pronouncing a mistrial
using the precise terms “order” or “declare,” her actions
were certainly the functional equivalent of those terms.
Moreover, the docket entries that followed the court
proceedings vividly emphasized that a mistrial had
been ordered, if anyone was uncertain about how the
first trial was terminated.
  Warren has not shown any error, let alone plain error,
in the district court’s decision to discharge the first jury.
Double jeopardy did not bar his second trial.


             B. Sufficiency of the Evidence
 Warren argues that the government’s case was too
weak to support the jury’s finding of guilt beyond a
No. 09-1228                                                13

reasonable doubt. The denial of Warren’s Rule 29
motion for judgment of acquittal is reviewed de novo.
United States v. Bolivar, 

, 603 (7th Cir. 2008),
cert. denied, 

(2009). In challenging the suffi-
ciency of the evidence, Warren bears a heavy, indeed,
nearly insurmountable, burden. See 

. A defendant challenging the sufficiency of the evi-
dence “must convince us that even ‘after viewing the
evidence in the light most favorable to the prosecution,
no rational trier of fact could have found him guilty
beyond a reasonable doubt.’ ” 

States
v. Woods, 

, 621 (7th Cir. 2009)). Such a chal-
lenge leads to a reversal “ ‘only if the record is devoid of
evidence from which a reasonable jury could find guilt
beyond a reasonable doubt.’ ” 

States
v. Farris, 

, 618 (7th Cir. 2008)).
   Warren asserts that the evidence was insufficient to
support a guilty finding because no evidence
established that he ever visited the Tower Bank, no eye-
witness identified him as one of the robbers, and no
physical evidence linked him to the robbery. As we
stated in Moore, however, “[a] verdict may be rational
even if it relies solely on circumstantial evidence.” 

evidence against Warren was circumstantial,
it was more than sufficient to support his bank robbery
conviction. We highlight some of the most damaging
evidence against him: The GPS device led the police
to 4217 Darby Drive within ten minutes of the bank
robbery; the area was flooded with officers; and no one was
seen coming from or going into the house until the home-
owner arrived. Inside the house, officers found three
14                                            No. 09-1228

African-American men who fit the description of the
robbers given by eyewitnesses. Warren was one of them.
But Kenyatta didn’t know Warren, and Warren had no
permission to be there. The officers also found other
evidence in the house that was traced to the bank
robbery including cash, bait money, a gun, and clothes
like those worn by the robbers. Gloves like the ones
worn by the robbers were found in the car parked in
the garage. Warren’s DNA was found on one of them. On
top of that, $20 of bait money was found on Warren’s
person.
  Warren argues that he was convicted solely because
he is African-American and socialized with a bank
robber or robbers. He asserts that a more rational view
of the evidence is that one of the three bank robbers
had left the Darby Drive house, taking a third of the loot
with him. This argument, like that made by Moore, is
implausible. See 

. When would the
third robber have escaped from the Darby Drive house,
undetected by police? Warren would have had to have
been in the house when the police arrived; he offers no
explanation for how he could have snuck into the
house, undetected, after it was surrounded by police.
Nor does he offer any explanation whatsoever for his
presence in the house. And Warren fit a description of
one of the robbers. Unfortunately, he offered no
evidence at trial to support the alternate view of the
evidence he posits, except that about one-third of
the stolen money was never recovered. Sorting the
facts and inferences is a task for the jury. That the jury
concluded Warren was involved in the robbery is not
No. 09-1228                                         15

irrational. The circumstantial evidence in this case
supports a finding of guilty beyond a reasonable doubt.


                    III. Conclusion
 The district court’s judgment is A FFIRMED.




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