United States v. Victor Harvey Smith

CHOY, Circuit Judge:

After a mistrial, the district court denied Smith’s motion to dismiss the indictment. Smith argues that the double jeopardy clause required that the motion be granted. We affirm.

On the second day of Smith’s criminal trial, the court learned that the 87-year-old mother of a juror had suffered a stroke, that the juror had been with her at the hospital since 3:00 a.m., and that the juror could not come to court. No other facts were known. Since the court had neglected to select an alternate juror, it asked the parties if they would consent to proceed with a jury of 11. The…