On the one hand, if [the trial judge] 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 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.

Id., at 509-510, 98 S. Ct. 824.

Significantly, 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. If the record reveals that a trial judge has acted "for reasons completely unrelated to the trial problem which purports to be the basis for the mistrial ruling, close appellate scrutiny is appropriate." Id., at 510, fn. 28, 98 S. Ct. 824.

We are mindful that, because jeopardy attaches before a jury returns its verdict, any determination to declare a mistrial implicates a defendant's "valued right" to have the empaneled jury reach a verdict. Nevertheless, as Justice Black recognized in Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 (1949), "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." In Wade, the Court applied the test of manifest necessity, as established in Perez, as the appropriate mechanism to determine when this valued right of the defendant is properly subordinated to society's interest in having a jury decide the factual question of his guilt or innocence. Id.

We also note that, prior to the adoption of Rule 26.3, courts had addressed the issue of a trial judge's failure to hear from the parties prior to declaring a mistrial. Most helpful are the two decisions that prompted Rule 26.3: United States v. Dixon, 913 F.2d 1305 (8th Cir.1990) and United States v. Bates, 917 F.2d 388 (9th Cir.1990). See FED.R.CRIM.P. 26.3 advisory committee's note. In Dixon, the Eighth Circuit noted that "consultation with counsel and consideration of available alternatives are consistent with the exercise of sound discretion," while "[a] precipitate decision, reflected by a rapid sequence of events culminating in a declaration of mistrial, would tend to indicate insufficient concern for the defendant's constitutional protection." 913 F.2d at 1311. As a result of the precipitous nature of the trial judge's decision in Dixon, which was evidenced by a rapid sequence of events that included (but was not limited to) the failure to hear from defense counsel, the appellate court applied close appellate scrutiny, rather than deference, to find the order of mistrial was not manifestly necessary.

The Supreme Court and appellate courts have relied on four indicators in determining whether the trial court abused its discretion. Has the trial judge (1) heard the opinions of the parties about the propriety of the mistrial, (2) considered the alternatives to a mistrial and chosen the alternative least harmful to a defendant's rights, (3) acted deliberately instead of abruptly, and (4) properly determined that the defendant would benefit from the declaration of mistrial.

917 F.2d at 396. As the Ninth Circuit observed, "trial courts are much more likely to have exercised sound discretion when they listen to the parties before declaring a mistrial and dismissing a jury." Id. In Bates, the Ninth Circuit's finding that the trial court abused its discretion was strongly suggested by the combination of the trial court's failure to hear from the parties, its failure to consider a "most important alternative," and its abrupt decision. Id., at 398.

Considered collectively, these cases establish that, prior to Rule 26.3, trial courts were strongly advised by appellate courts to provide parties an opportunity to be heard before declaring a mistrial. Although the substantive law prior to Rule 26.3 advised rather than mandated that a trial judge hear from the parties, the trial judge's failure to hear the parties was one factor, among several, that appellate courts considered in determining whether the trial court exercised sound discretion. Against this context, we find that Rule 26.3 was enacted to codify rather than to change the existing law. 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. 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 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 discretion. Accordingly, we hold that a violation of Rule 26.3 — the failure to give the parties an opportunity to comment, object, or suggest alternatives before declaring a mistrial — is one factor to be considered in determining whether a trial judge exercised sound discretion.

In this matter, having considered the entirety of circumstances established by the record, we find that the trial judge exercised sound discretion in ordering the mistrial. The mistrial was granted in the "classic case" of a deadlocked jury, a circumstance in which great deference is generally accorded to the decision of the trial judge.

The trial judge did not hear from the parties prior to declaring a mistrial. We consider this failure significant, given the mandate of Rule 26.3, and it strongly suggests that the trial judge did not exercise sound discretion.

By contrast, the 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.

Subsequent to declaring the mistrial, the trial judge indicated that he was "flying out of this district tomorrow without question." The record also reveals, however, that the trial judge had already altered his travel plans to accommodate the trial. In addition, on the morning of May 30, the trial judge sent a note to the jury asking when it wished to take lunch, an action inconsistent with an effort to prematurely terminate jury deliberations. On balance, these events do not indicate that the trial judge declared a mistrial to accommodate his travel plans, but establish that the judge had changed his travel plans to accommodate the trial.

The record does not reveal whether, in response to the second note, the trial judge considered alternatives to declaring a mistrial. As this limited record may have partly resulted from the failure to hear from the parties, its paucity reinforces the suggestion that the court did not exercise sound discretion. The record, however, is not entirely barren as to the issue of alternatives. As noted above, the court had already given the jury a modified Allen charge. Under such circumstances, a trial judge's decision to not give a second Allen charge cannot be faulted. The only remaining alternative, to merely allow the jury to continue to deliberate, necessarily increased the "significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all jurors." Avoiding such improper verdicts is a fundamental underpinning of the great deference we accord to a trial judge's finding that the jury is deadlocked and to the order of mistrial.

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.

AFFIRMED.