United States v. Islam

102 F.4th 143

UNITED STATES of America v. Abdur Rahim ISLAM and Shahied Dawan, Appellants

No. 23-2306

United States Court of Appeals, Third Circuit

Submitted Pursuant to Third Circuit LAR 34.1(a) on April 12, 2024

Filed: May 16, 2024

On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal Nos. 2-20-cr-00045-001 and 2-20-cr-00045-002, District Judge: Honorable Gerald A. McHugh

Peter Goldberger, 50 Rittenhouse Place, Ardmore, PA 19003, Joshua D. Hill, Eckert Seamans Cherin & Mellott, 50 S 16^th Street, Two Liberty Place, 22^nd Floor, Philadelphia, PA 19102, Counsel for Appellant Abdur Rahim Islam

Thomas O. Fitzpatrick, Mincey Fitzpatrick Ross, 1650 Market Street, 36^th Floor, Philadelphia, PA 19103, Counsel for Appellant Shahied Dawan

Mark B. Dubnoff, Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: CHAGARES, Chief Judge, PORTER, and SCIRICA, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge

Over the course of Abdur Rahim Islam and Shahied Dawan's nearly six-week-long trial, five original jurors were discharged and replaced by alternates. Then, one of the remaining twelve jurors contracted COVID-19. After Islam and Dawan refused to proceed with eleven jurors pursuant to Federal Rule of Criminal Procedure 23(b)(2), the District Court declared a mistrial based on manifest necessity.

Islam and Dawan moved to dismiss the indictment, arguing the Fifth Amendment's Double Jeopardy Clause barred their reprosecution. The District Court denied the motion. We hold the District Court's declaration of a mistrial was manifestly necessary, and so we will affirm as to Islam. We dismiss Dawan's appeal as moot.

I.

We briefly recite the facts of this "complicated and extensive" criminal prosecution. Dkt.¹ 516, at 1.

A.

On January 28, 2020, a federal grand jury returned a twenty-two count indictment against Defendants-Appellants Abdur Rahim Islam and Shahied Dawan, alongside co-defendants Kenyatta Johnson and Dawn Chavous. Islam served as the chief executive officer of Universal Community Homes—an affordable housing developer, and Universal Education Companies—a charter school management company (Collectively, "Universal"). Dawan served as chief financial officer of University Community Homes and provided financial services to both companies. As alleged in the indictment, Islam and Dawan stole money from Universal by submitting fraudulent expense reimbursements and paid bribes to a member of the Milwaukee Public School Board. The indictment also alleged Islam and Dawan bribed Johnson, a Philadelphia City Councilmember, through his wife, Chavous, to benefit Islam and Dawan in two real estate ventures. Finally, the indictment alleged Islam prepared fraudulent income tax returns by failing to report bonuses received from Universal as taxable income.

The centerpiece of the indictment was a charge against Islam and Dawan for conspiracy to commit racketeering under 18 U.S.C. § 1962(d). The indictment also included six counts of wire fraud (against Islam and Dawan), one count of use of an interstate facility to further racketeering (also against Islam and Dawan), six counts of tax fraud (against Islam only), and eight counts of honest services wire fraud (six of which applied only to Islam and Dawan, and two of which applied to all four co-defendants).

Prior to trial, Johnson and Chavous moved to sever the only two charges that applied to them from the rest of the case, and the District Court granted the motion. Rather than hold separate trials, the District Court opted to proceed with a bifurcated trial, with all four defendants tried first on the honest services fraud charges, followed by a continuation of trial before the same jury on the remaining charges against only Islam and Dawan.

When the case first went to trial in March 2022, the jury hung. Retrial began in September 2022. Jurors reported for service for the retrial on September 28, 2022 and were asked to commit to four-to-six weeks of service. The next day, twelve jurors and five alternates were sworn in. Seeking to avoid prejudice to Defendants, the District Court did not inform jurors of the bifurcated nature of the trial or that a second phase would begin immediately after they reached a verdict in the first phase.

Three jurors were discharged during Phase I of the trial. One juror was excused because of a scheduling conflict with her son's wedding. A second was discharged after becoming ill. A third was dismissed during Phase I deliberations after the District Court determined the juror's religious conviction was impairing her ability to deliberate impartially.

On November 2, 2022, five weeks after their service began,² the jury acquitted all four defendants of the honest services wire fraud charges, ending the prosecution of Johnson and Chavous. The District Court then informed the jurors and the two remaining alternates that their service was not completed and that they would need to consider additional charges against Islam and Dawan. The District Court noted that "after four days of difficult deliberation, jurors exhibited a strong negative reaction." J.A. 5. Nonetheless, testimony resumed the next day.

On the morning of November 3, 2022—the first day of Phase II—problems affecting two more jurors emerged. Juror 7 had previously informed the District Court that his partner's mother was severely ill and had entered hospice in Kentucky. She died during the night of November 2, and the juror expressed that he was "extraordinarily upset" and needed to travel to Kentucky. Dkt. 461, at 69:20-70:1. Finding him "distraught and distracted," the District Court discharged Juror 7 from service with no objection from counsel. Id. at 70:1-20.

Separately, Juror 6 informed the District Court that he had suffered a sudden death in his family and that a funeral was scheduled for the following morning. During a sidebar, the District Court informed counsel that Juror 6 had lost his 36-year-old first cousin in a "tragic and unexpected death." Id. at 70:21-71:3. After speaking with Juror 6, the District Court noted the "sudden and shocking death" had left him "very upset and emotionally distraught." Id. at 70:23-71:7. The District Court expressed hesitation at discharging Juror 6 because this would leave the jury with no more alternates. Seeking to maintain a constitutional mass of jurors, the District Court attempted to persuade Juror 6 to "hang in." Id. 71:4. The District Court also suggested Juror 6 could attend the memorial service the following morning and reconvene for trial in the afternoon, but the juror's "distraught" reaction led the District Court to conclude that the juror's emotional state was "genuine" and that this was "not a welcome suggestion." Id. at 72:3-15.

Defense counsel proposed the District Court adjourn for the following full day (Friday, November 4), allowing Juror 6 time for the funeral and three full days (including the weekend) to be with his family. The District Court raised several issues with this plan. First, a Friday adjournment would prolong the service of the other jurors, who were "obviously disappointed" that the trial was still ongoing after nearly six weeks. Id. at 73:1-7. Second, the Government had previously requested the trial be adjourned on Election Day—Tuesday, November 8, 2022—as two of the attorneys prosecuting this case were also assigned to the U.S. Attorney's Office's election detail and had "important duties" to attend to on that day. Id. at 9:19-10:6. The District Court concluded that "the integrity of elections is a vitally-important national interest" and that it did not "see an alternative other than to release [the prosecutors] to perform those duties." Id. at 78:1-4. Based on the pace of trial, adjourning on Friday would thus mean that jurors would resume service on Monday, only to adjourn again on Tuesday—"another reality" that the District Court predicted "will spark potential rebellion on the part of the jurors." Id. at 76:7-13. Third, the District Court noted that the other jurors were aware of Juror 6's situation, creating a "credibility issue" with respect to the court's course of action. Id. at 77:7. Finally, the District Court expressed concern that even with an adjournment the next day, Juror 6 would have to participate in trial for the rest of the day on Thursday in his distraught and distracted state.

The District Court concluded in the face of "two bad alternatives" that it would choose the one that "most respects the integrity of the trial process": dismissing Juror 6. Id. at 79:1-3. Trial continued with the remaining twelve jurors the rest of Thursday, November 3 and Friday, November 4.

On Saturday, November 5, one of the remaining jurors—Juror 3—contacted the District Court and reported she had tested positive for COVID-19 and was symptomatic. The District Court informed counsel and scheduled a conference call for the next day to discuss whether the parties would agree to proceed with an eleven-person jury pursuant to Federal Rule of Criminal Procedure 23(b)(2).³ During the call, the District Court discussed the possibility of adjourning trial until the affected juror's recovery—at least a week under then-current CDC Guidelines. In doing so, the District Court noted that (1) another juror was also recently exposed to COVID-19, (2) two jurors had expressed concern that several fellow jurors were not being paid during their lengthy service, and (3) the jury foreperson had previously informed the District Court of a long-planned international family trip scheduled to begin in mid-November. Based on these considerations, as well as the "cumulative stress on the jurors" from the prolonged trial and difficult Phase I deliberations, the District Court concluded—without objection from the parties—that a five-day adjournment was not practical. Dkt. 463, at 5:23-6:8. Defense counsel informed the District Court...