In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-4013

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

JOHNNIE L. T AYLOR,
                                          Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Illinois.
         No. 06 CR 30114—David R. Herndon, Chief Judge.



     A RGUED F EBRUARY 17, 2009—D ECIDED JUNE 26, 2009




  Before P OSNER, K ANNE, and W OOD , Circuit Judges.
  K ANNE, Circuit Judge. The appellant, Johnnie Taylor,
was accused of being a felon in possession of a firearm
and was tried twice in front of a jury. The first trial
resulted in a deadlocked jury, prompting the court to
declare a mistrial. At the second trial, the jury found Taylor
guilty as charged. On appeal, Taylor presents three argu-
ments, the first two of which relate to the mistrial. First,
Taylor argues that the district court erred in declaring
the mistrial. Second, he claims that trial counsel was
2                                             No. 07-4013

ineffective because the attorney did not seek Taylor’s
input on whether to recommend to the court that it
declare a mistrial. Taylor’s third argument, which
involves Taylor’s second trial, is that the district court
should have excluded certain statements from the gov-
ernment’s evidence. We find no merit in Taylor’s
claims and now affirm.


                    I. B ACKGROUND
  In the early evening of September 12, 2005, local law
enforcement responded to a domestic disturbance call at
an apartment complex in Alorton, Illinois. Police Officer
Rick Schell was the first to arrive on the scene, where
he spoke with Mary Weaver, the woman who had placed
the call. Weaver pointed across the street and informed
Schell that a man later identified as Johnnie Taylor had
taken a gun in that direction. She said that Taylor took
the weapon to a man she called “Mario,” who the
police subsequently learned was Mario Dowell.
  Looking in the direction that Weaver pointed, Officer
Schell saw Dowell working on an automobile in front of
a neighboring apartment building. At the same time,
Taylor appeared and approached Officer Schell from
across the street. Warned by Weaver that Taylor might
be armed, Officer Schell handcuffed Taylor and checked
him for a weapon, finding none. Chief Leondra Hughes
and Captain Robert Cummings then arrived on the
scene and began investigating the handgun’s where-
abouts. Upon questioning by Hughes, Dowell admitted
that Taylor had given him a gun and that he had hidden
No. 07-4013                                              3

it for Taylor in a third party’s apartment. Dowell then
led the police to the gun’s hiding place, where they re-
covered the weapon.
  On August 18, 2006, the government filed a two-count
indictment against Taylor, only the first count of which
is at issue on this appeal. That count alleged that Taylor,
who had previously been convicted of burglary, was
a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1).
  Taylor’s first jury trial began on June 18, 2007. The
presentation of evidence took approximately six hours
over two days and concluded shortly after 2:30 p.m. on
the afternoon of June 19. After final instructions, the
jury began deliberations that same afternoon at 3:58 p.m.,
and the court recessed at 5:10 p.m. The jury resumed
deliberations at 9:00 a.m. the next morning, June 20,
and deliberated throughout the day.
  The jury sent three notes to the judge over the course
of its deliberations on June 20. In the first, the jury re-
quested to rehear Mary Weaver’s 911 telephone call
and the recorded statements Taylor and Dowell had
given to the police. In the second note, the jury asked for
clarification on a point of Chief Hughes’s testimony. The
court granted the first request and, while working with
the attorneys to formulate a response to the second,
received the jury’s third note. Sent to the judge at
3:50 p.m., the third note read: “We are undecided on
guilty/not guilty. There are several points we can’t agree
on. The jury is divided on whether to continue. Your
direction is required.” After discussions with both attor-
4                                              No. 07-4013

neys, the court sent the requested transcript excerpt of
Chief Hughes’s testimony and stated only, “Please con-
sider the Court’s reply to your request regarding Chief’s
Hughes [sic] testimony and in conjunction with all the
other evidence in the case.” The jury later asked to
adjourn for the day, writing that “we are aggressively
going over (flow charting) each witness and piece of
evidence to arrive at a unanimous decision.” The judge
granted the jury’s request and recessed the court at
5:00 p.m.
  The jury returned for a third day of deliberations at
9:00 a.m. on June 21. At 10:10 a.m., the court received a
note from the jury that read as follows:
    We, the jury, are “deadlocked” in decision—since
    day 1 until today. We are 8 guilty and 4 not
    guilty—this spit [sic] has not changed since we
    began. We have debated each witness’ testimony
    and piece of evidence and no juror has changed
    their verdict. We ask the court to accept our dead-
    locked condition and conclusion to this case.
  The judge sought input from both the prosecutor and
defense counsel. The prosecutor suggested that the judge
encourage the jury to continue its deliberations. Defense
counsel, citing concerns that the jury would “cave in
one way or the other,” recommended that the court
accept the jury’s request and declare a mistrial. The
judge, after discussing the length of the presentation of
evidence during the trial and of the jury’s deliberations,
the simplicity of the issues, the jury’s communications,
and his concerns about the potentially coercive effects of
additional prodding by the court, declared a mistrial.
No. 07-4013                                             5

   Taylor’s second trial commenced on July 9, 2007. Over
two days of evidence, the government called a number
of witnesses, including Officer Schell, Captain Cummings,
Chief Hughes, and Mario Dowell. Neither the govern-
ment nor the defense called Mary Weaver to testify.
Dowell’s testimony was particularly instructive on the
case’s key issue—whether Taylor had knowingly
possessed the firearm. Dowell explained to the jury that
on September 12, 2005, he had been working on a car in
front of his apartment when Taylor, an acquaintance of
Dowell’s, approached and asked Dowell to “put a gun
up for him,” i.e., hide Taylor’s weapon. Dowell testified
that he believed Taylor later intended to recover the
firearm from its hidden location. Dowell told the jury
that he took Taylor around to the back of the apart-
ment building, where Taylor gave the gun to Dowell.
Knowing that a nearby apartment belonging to Laricka
Perkins, an uninvolved third party, would be unlocked,
Dowell took the gun and hid it in Perkins’s apartment.
  On July 10, the jury returned a verdict of guilty as
charged in count one of the indictment. On December 6,
2007, the district court sentenced Taylor to seventy-eight
months’ imprisonment, followed by a three-year term of
supervised release. Taylor now appeals, citing concerns
related to both the mistrial declaration and the
admission into evidence of certain statements during
his second trial.


                      II. A NALYSIS
  On appeal, we divide Taylor’s arguments according
to the trial to which they pertain. Taylor’s initial two
6                                                   No. 07-4013

claims involve the mistrial declaration during his first
trial. His final claim relates to the admission of certain
evidence during his second trial. As we explain below,
we disagree with Taylor’s arguments on all fronts.


    A. The Mistrial (Trial Number 1)
  The Double Jeopardy Clause of the United States Consti-
tution bars a defendant’s retrial unless the district court
declared a mistrial either (1) with the defendant’s
consent, or (2) because the declaration was manifestly
necessary. United States v. Combs, 

, 358-59
(7th Cir. 2000); see also U.S. Const. amend. V; Arizona v.
Washington, 

, 504-05 (1978) (discussing a
defendant’s “valued right to have his trial completed by
a particular tribunal” and stating that a prosecutor “is
entitled to one, and only one, opportunity to require
an accused to stand trial”). Taylor contests the district
court’s decision to declare the mistrial without his
consent and without finding manifest necessity and
claims that trial counsel was ineffective because the
attorney did not seek Taylor’s consent to the mistrial.
Neither claim withstands scrutiny.


    1. The District Court’s Declaration of a Mistrial
  A court may declare a mistrial if it determines that such
a declaration is “occasioned by manifest necessity.” 

. Such a determination is proper with or
without the defendant’s consent, see 

not be
made explicitly, see Camden v. Circuit Court of the Second
No. 07-4013                                                  7

Judicial Circuit, 

, 614 (7th Cir. 1989). A mistrial
is manifestly necessary only if the “scrupulous exercise
of judicial discretion leads to the conclusion that the
ends of public justice would not be served by a continu-
ation of the proceedings.” 

  We review a court’s decision to declare a mistrial for
an abuse of discretion. United States v. Vaiseta, 

, 818 (7th Cir. 2003). Our review becomes even
more deferential in a situation such as this, where the
“manifest necessity” prompting the mistrial is a dead-
locked jury. See id.; see also 

;
Williams v. Bartow, 

, 500 (7th Cir. 2007) (noting
that the reviewing court applies varying degrees of scru-
tiny within the abuse-of-discretion standard depending
on the events precipitating the mistrial). Such deference
is warranted because the trial judge is in the best
position to balance the defendant’s interest in having a
given jury decide his fate against the public’s interest
in fair trials and just judgments. 

.
  In Vaiseta, we discussed several factors a court should
consider before declaring a mistrial due to a deadlocked
jury: (1) statements from the jury that it cannot agree;
(2) length of the deliberations; (3) length of the trial;
(4) complexity of the issues; (5) the jury’s communications
to the judge; and (6) the potentially prejudicial impact
of continued forced deliberations. 

the
court never explicitly stated that it found the mistrial to
be of “manifest necessity,” the court clearly contemplated
each of the Vaiseta factors before it declared a mistrial,
a decision that we conclude was well within the bounds
of the court’s discretion.
8                                                No. 07-4013

  First, the court had two written statements from the
jury indicating its inability to agree, one on June 20,
the second on June 21. Second, the court discussed both
the length of the presentation of evidence and the length
of the deliberations, noting that the evidence had taken
approximately six hours and that the jury deliberations
had been ongoing for ten hours. Said the judge: “Just seems
like with six hours of testimony, with over ten hours,
thereabouts, of deliberation, that we’re not going to get
a different result.” Third, the judge expressed his opinion
that the single issue facing the jury—whether Taylor had
knowingly possessed the gun—was relatively simple.
Next, the jury’s communications made clear that it had
made little progress in three days; in fact, the jury’s
split had not changed since it began deliberating. And
finally, the judge explained his fear of coercing the jury
into a decision by requiring further deliberations. The
judge discussed each of these factors on the record
before announcing his decision to declare the mistrial.
We fail to see how such a measured decision, made with
ample information and full appreciation for the Vaiseta
factors, could be an abuse of discretion. Cf. United States v.
Jackson, 

, 471 (7th Cir. 2008) (noting that a
judge must exercise his discretion, i.e., “consider[] the
factors relevant to that exercise,” before we accord his
decision deference).
  On appeal, Taylor essentially asks us to substitute our
judgment for that of the district judge. He suggests, for
example, that the issue was not as simple as the court
believed and that the length of deliberations was not out
of proportion to the length of the evidence. Taylor argues
No. 07-4013                                                          9

that the court should have ordered the jury to deliberate
“at least until lunch” and should have reread the Silvern
instruction, see United States v. Silvern, 

, 883
(7th Cir. 1973),1 an instruction that we have held to be
content-neutral and non-coercive, United States v. Sanders,

, 676 (7th Cir. 1992) (quoting United States
v. Beverly, 

, 352 (7th Cir. 1990)). But when
reviewing only for an abuse of discretion, second-guessing



1
    The Silvern instruction reads as follows:
        The verdict must represent the considered judgment
      of each juror. In order to return a verdict, it is necessary
      that each juror agree thereto. Your verdict must be
      unanimous.
         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 judg-
      ment. Each of you must decide the case for yourself, but
      do so only after an impartial consideration of the
      evidence with your fellow jurors. In the course of your
      deliberations, do not hesitate to reexamine 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.
        You are not partisans. You are judges—judges of the
      facts. Your sole interest is to ascertain the truth from
      the evidence in the 

.
10                                                 No. 07-4013

the district court is something we will not do. See Am. Nat’l
Bank & Trust Co. of Chi. v. Reg’l Transp. Auth., 

,
431 (7th Cir. 1997). A discretionary decision, as this one
was, implies a range of acceptable outcomes. See United
States v. Koen, 

, 1114 (7th Cir. 1992). So long
as the judge’s conclusion was within that range of out-
comes, we will defer to his judgment, not substitute
our own. See id.; see also United States v. Souffront, 

, 819 (7th Cir. 2003) (stating that when reviewing
for an abuse of discretion, this court will not second-guess
the trial judge’s decision or reweigh the evidence). Further,
even if we were to conduct a more searching analysis
of the court’s conclusions, we see no fault in the decision
it reached. As such, we hold that the district court’s
decision to declare a mistrial during Taylor’s first jury
trial was not an abuse of discretion. We turn now to
Taylor’s ineffective assistance of counsel claim.


  2. Ineffective Assistance of Trial Counsel
   Taylor next argues that he received ineffective
assistance of counsel because his attorney did not consult
Taylor before recommending to the court that it accept
the jury’s deadlocked position and declare a mistrial.
The test for ineffective assistance of counsel is well estab-
lished. See Strickland v. Washington, 

(1984). To
prevail on such a claim, Taylor must show both (1) that
his trial counsel’s performance was objectively deficient;
and (2) that counsel’s deficiency prejudiced his defense.

United States v. Shukri, 

, 418 (7th Cir.
2000).
No. 07-4013                                                11

  As a preliminary matter, we note our standard reluctance
to consider ineffective assistance of counsel claims on
direct appeal. United States v. Brooks, 

, 495
(7th Cir. 1997). As we have said:
   [S]uch claims are very unlikely to find any factual
   support in the trial record and an adverse deter-
   mination on direct appeal will be res judicata in
   any subsequent collateral attack. . . . [A] defendant
   who presents an ineffective-assistance claim for
   the first time on direct appeal has little to gain
   and everything to lose.
United States v. Cooke, 

, 1299 (7th Cir. 1997)
(citations and quotations omitted); see also 

.
  The undeveloped record in this case provides a
perfect example of why we typically decline to consider
ineffective assistance arguments for the first time on
direct appeal. Despite Taylor’s arguments to the con-
trary, there is no indication in the record whether
Taylor’s trial counsel consulted with him before sug-
gesting to the court that it declare a mistrial. Due to the
strong presumption of counsel’s effectiveness, see Strick-

, if we were to express an opinion on
counsel’s performance based on such an incomplete
record, it would have to be in counsel’s favor. But we
need not make such a conclusive finding in this case, nor
need we defer our decision on this claim, because Taylor
fails to make the requisite showing of prejudice. Strick-
land’s two-part test requires both deficient performance
and 

; requiring a more fully
12                                                 No. 07-4013

developed record, therefore, would only delay the inevita-
ble.
  Courts may deny ineffective assistance of counsel
claims for lack of prejudice without ever considering the
question of counsel’s actual performance. 

see, e.g.,
Berkey v. United States, 

, 772 (7th Cir. 2003);
Matheney v. Anderson, 

, 1042 (7th Cir. 2001). To
demonstrate prejudice, Taylor must show “that the deci-
sion reached would reasonably likely have been different
absent the errors.” 

. Taylor’s
entire argument, however, hinges on his trial counsel’s
purported deficiencies; he makes no claims related to the
prejudice he suffered. We presume this is because he
suffered none. As we have already discussed, the district
court, after careful consideration of the Vaiseta factors
and over the objection of the prosecution, implicitly
found a mistrial to be of manifest necessity. The court
did not need Taylor’s permission to make that decision,
and there is no reason to believe that an objection by
defense counsel, or even by the defendant himself, would
have changed the court’s conclusion. Absent the requisite
showing of prejudice, Taylor’s ineffective assistance of
counsel claim fails. We turn now to Taylor’s final argu-
ment.


  B. Admissibility of Mary Weaver’s Statement (Trial
     Number 2)
  Finally, Taylor claims that the district court erred during
the second trial by admitting into evidence Mary
Weaver’s statement to Officer Schell that “he just took a
No. 07-4013                                                  13

gun across the street.” Taylor bases this argument on
two grounds. First, he asserts that the evidentiary rules
against hearsay prohibited the admission of Weaver’s
statement. See Fed. R. Evid. 801-802. Second, he argues
that admitting Weaver’s statement without calling
Weaver herself to testify violated his constitutional right
to confront witnesses against him. See U.S. Const.
amend. VI. We find both arguments unavailing.
  We typically review a district court’s decision to admit
statements into evidence for an abuse of discretion. United
States v. Akinrinade, 

, 1283 (7th Cir. 1995).
During trial, however, defense counsel raised no objec-
tions to the references to Weaver’s statement, limiting
our review to plain error. See United States v. Olano, 

, 731 (1993); see also Fed. R. Crim. P. 52(b). Under
this standard, we will not reverse unless we find not
only an error, but an error “that is ‘plain’ and that
‘affect[s] substantial rights.’ ” 

(alter-
ation in original). Even in the presence of a plain error,
the decision whether to correct the error lies in our dis-
cretion, which the Supreme Court has instructed us not
to exercise “unless the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial pro-
ceedings.’ ” 

original) (quoting United
States v. Young, 

, 15 (1985)).
  We turn first to Taylor’s hearsay arguments. The
Federal Rules of Evidence prohibit the admission of
hearsay: out-of-court statements made by non-witnesses
that are offered to prove the truth of the matter asserted.
See Fed. R. Evid. 801-802; United States v. Breland, 356
14                                               No. 07-4013

F.3d 787, 792 (7th Cir. 2004). Here, Taylor challenges
numerous references made by Officer Schell and others to
Mary Weaver’s statement that “he just took a gun across
the street.” Such testimony created a potential hearsay
problem because neither side called Weaver to testify,
relying instead on other people to recount to the jury
Weaver’s statements. We find that the district court
committed no error because the challenged statement
did not satisfy the definition of hearsay.
  We have recognized repeatedly that statements offered
to “establish the course of the investigation,” rather than
to prove the truth of the matter asserted, are nonhearsay
and therefore admissible. 

;
see also, e.g., 

; United States v.
Linwood, 

, 425 (7th Cir. 1998); United States v.
Sanchez, 

, 1005 (7th Cir. 1994). But see United
States v. Silva, 

, 1020 (7th Cir. 2004) (discuss-
ing, in the context of conversations between DEA agents
and their confidential informants, that “[a]llowing agents
to narrate the course of their investigations . . . would go
far toward abrogating the defendant’s rights under
the sixth amendment and the hearsay rule”).
  Here, the references to Mary Weaver’s statement by
Schell, Cummings, and Hughes were offered to explain
their own actions in the course of their investigation—for
example, why they looked across the street, why they
questioned Mario Dowell, and why they handcuffed
Taylor when he approached. Indeed, Weaver’s state-
ment was the jumping-off point for the entire investiga-
tion. Our conclusion might be different if, as in Silva, the
No. 07-4013                                               15

police were testifying to statements harvested from an
ongoing relationship with an informant, 

, but those are not the facts of this case; here, the
police were responding to a developing, potentially
dangerous situation. The government offered Weaver’s
statement in the context of the officers’ testimony to
explain the course of law enforcement’s investigation,
not as evidence that Taylor possessed the gun. The
district court, with no objections made by either party,
properly admitted the testimony as nonhearsay.
  Turning, finally, to Taylor’s Confrontation Clause
argument, we again find no plain error. Absent “compli-
cating circumstances,” such as a prosecutor who exploits
nonhearsay statements for their truth, nonhearsay testi-
mony does not present a Confrontation Clause problem.
Lee v. McCaughtry, 

, 1325 (7th Cir. 1990); see
also Martinez v. McCaughtry, 

, 133 (7th Cir.
1991) (citing Tennessee v. Street, 

, 414 (1985)).
We are satisfied that there were no “complicating cir-
cumstances” here; thus, because the testimony by Schell,
Cummings, and Hughes was nonhearsay, nothing ran
afoul of the Confrontation Clause. See 

. Furthermore, given the other evidence in the
record of Taylor’s gun possession, namely, Mario
Dowell’s testimony, Taylor cannot claim that his “sub-
stantial rights” were affected. See 

(stating that in most cases an error affects substantial
rights only if was prejudicial, i.e., it affected the outcome
of the proceedings); 

(noting
the absence of a “miscarriage of justice” when reviewing
a Confrontation Clause claim for plain error).
16                                             No. 07-4013

                   III. C ONCLUSION
 For the foregoing reasons, we A FFIRM Taylor’s conviction.




                          6-26-09