United States of America v. ABDUR RAHIM ISLAM and SHAHIED DAWAN

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 23-2306
___________
UNITED STATES OF AMERICA
v.
ABDUR RAHIM ISLAM and
SHAHIED DAWAN,
Appellants
_______________________
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
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
on April 12, 2024
Before: CHAGARES, Chief Judge, PORTER, and
SCIRICA, Circuit Judges.
(Filed: May 16, 2024)

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Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003
Joshua D. Hill
Eckert Seamans Cherin & Mellott
50 S 16th 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
_________________
OPINION OF THE COURT
_________________

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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
1 “Dkt.” citations refer to the docket before the District Court,
United States v. Abdur Rahim Islam et al., No. 20-CR-45
(GAM) (E.D. Pa.).

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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

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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.
2 Phase I was interrupted for one week when one of the
defendants contracted COVID-19.

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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

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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

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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 that Islam and Dawan
would not consent to proceeding with a jury of fewer than
twelve people. Concluding there was “no alternative,” the
District Court found manifest necessity to declare a mistrial,
id. at 7:3-7; 8:15-25, and scheduled the retrial for February
2023.
3 “At any time before the verdict, the parties may, with the
court’s approval, stipulate in writing that: . . . a jury of fewer
than 12 persons may return a verdict if the court finds it
necessary to excuse a juror for good cause after the trial
begins.” Fed. R. Crim. P. 23(b)(2)(B).

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B.
On December 21, 2022, Islam—later joined by
Dawan—filed a motion to dismiss the indictment based on
double jeopardy, arguing that there was no manifest necessity
for the District Court to declare a mistrial. The District Court
denied the motion on July 7, 2023.
Islam and Dawan subsequently filed this interlocutory
appeal. On August 9, 2023, the District Court issued a
memorandum concluding the interlocutory appeal was
frivolous, allowing it to retain jurisdiction and proceed with the
scheduled retrial during this appeal. See United States v.
Leppo, 634 F.2d 101, 105 (3d Cir. 1980). Islam and Dawan
then sought a stay of the District Court proceedings pending
this appeal, which we denied.
On September 5, 2023, the grand jury returned a
superseding indictment. The superseding indictment replaced
the conspiracy to commit racketeering charge with a charge of
conspiracy to defraud the United States, 18 U.S.C. § 371. The
superseding indictment also omitted the charge of using an
interstate facility to further racketeering, one of the six wire
fraud charges, and the two honest services fraud charges on
which all four co-defendants were acquitted in Phase I.
Retrial began on March 4, 2024. On March 20, 2024,
the jury found Islam guilty on all counts and Dawan guilty only
as to the charge of conspiracy to defraud the United States.

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II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction over Islam’s appeal under 28
U.S.C. § 1291. See Abney v. United States, 431 U.S. 651, 662
(1977) (“[P]retrial orders rejecting claims of former jeopardy .
. . constitute ‘final decisions’ and thus satisfy the jurisdictional
prerequisites of § 1291.”).
“We apply a mixed standard of review to a district
court's decision on a motion to dismiss an indictment,
exercising plenary review over legal conclusions and clear
error review over factual findings.” United States v. Small, 793
F.3d 350, 352 (3d Cir. 2015) (internal quotation marks
omitted).
A.
We first consider our jurisdiction over Dawan’s appeal.
See United States v. Higgs, 504 F.3d 456, 457 (3d Cir. 2007)
(“This court has an obligation to inquire sua sponte into its own
jurisdiction.”).
As previously discussed, when this case was tried in
November 2022, Dawan was acquitted of all counts in the
indictment tried in Phase I before the mistrial occurred as to
the racketeering conspiracy charge in Phase II. See supra II.A.
But prior to retrial in March 2024, the racketeering charge was
removed in the superseding indictment and replaced with a
charge of conspiracy to defraud the United States—a different

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offense.4 The March 2024 retrial was the first time Dawan was
charged with, tried on, and convicted of conspiracy to defraud
the United States—thus posing no double jeopardy issues with
that offense. See United States v. Rigas, 605 F.3d 194, 204 (3d
Cir. 2010) (en banc) (“[T]he Double Jeopardy Clause prohibits
repeat trials for the same offense, not for the same conduct. . . .
[A] defendant generally may be subject to multiple
prosecutions so long as each prosecution involves a different
offense.”); see also Hudson v. United States, 522 U.S. 93, 107
(1997) (Stevens, J., concurring) (“Unless a second proceeding
involves the ‘same offense’ as the first, there is no double
jeopardy.”).
Furthermore, because the jury acquitted Dawan on all
other counts, any remaining double jeopardy issues with
respect to him are no longer live. We accordingly dismiss his
appeal as moot. See Kajmowicz v. Whitaker, 42 F.4th 138, 152
n.11 (3d Cir. 2022) (“A case becomes moot . . . when the
issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome. In other words, once it
becomes impossible for a court to grant any effectual relief
whatever to the prevailing party, then we no longer have
jurisdiction and must dismiss the case as moot.” (citations and
internal quotation marks omitted)).
Islam, in contrast, was convicted in March 2024 of
multiple counts originally tried during the November 2022
trial—honest services wire fraud, wire fraud, and tax fraud. We
4 No party contends that conspiracy to commit racketeering, 18
U.S.C. § 1962(d), and conspiracy to defraud the United States,
18 U.S.C. § 371, are the same offense.

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accordingly evaluate the double jeopardy arguments as to him
only.
B.
The Double Jeopardy Clause of the Fifth Amendment
“forbids that ‘any person be subject for the same offence to be
twice put in jeopardy of life or limb.’” United States v. Rivera,
384 F.3d 49, 53 (3d Cir. 2004) (quoting U.S. Const. amend. V).
As relevant here, the clause protects a criminal defendant’s
“valued right to have his trial completed by a particular
tribunal.” Wade v. Hunter, 336 U.S. 684, 689 (1949). The
protections of the Double Jeopardy Clause, however, are not
absolute. See id. at 688 (double jeopardy protection “does not
mean that every time a defendant is put to trial before a
competent tribunal he is entitled to go free if the trial fails to
end in a final judgment”). Indeed, while a district court’s power
to declare a mistrial “ought to be used with the greatest caution,
under urgent circumstances, and for very plain and obvious
causes,” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
(1824), the Double Jeopardy Clause will not bar prosecution
where the mistrial is required by “manifest necessity,” United
States v. Scott, 437 U.S. 82, 93 (1978).
We have previously recognized that “[t]he realities of
litigation preclude a precise definition of ‘manifest necessity.’”
Rivera, 384 F.3d at 55. “[T]hose words do not describe a
standard that can be applied mechanically or without attention
to the particular problem confronting the trial judge.” Arizona
v. Washington, 434 U.S. 497, 506 (1978). Moreover,
“‘necessity’ cannot be interpreted literally; instead, . . . we
assume that there are degrees of necessity and we require a
‘high degree’ before concluding that a mistrial is

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appropriate.” Id.
The Supreme Court has counseled that there exists a
“spectrum of trial problems which may warrant a mistrial and
which vary in their amenability to appellate scrutiny.” Id. at
510. For instance, if “a mistrial has been granted in order to
allow the state to achieve a tactical advantage, then the strictest
scrutiny is appropriate. On the other hand, when a trial judge
declares a mistrial because the jury was unable to reach a
verdict, broad discretion must be allowed.” Crawford v.
Fenton, 646 F.2d 810, 817 (3d Cir. 1981) (citation omitted).
Ultimately, however, a district court “must exercise prudence
and care, giving due consideration to reasonably available
alternatives to the drastic measure of a mistrial.” Rivera, 384
F.3d at 56; see also Fed. R. Crim. P. 26.3 (“Before ordering a
mistrial, the court must give each defendant and the
government an opportunity to comment on the propriety of the
order, to state whether that party consents or objects, and to
suggest alternatives.”).
The circumstances leading to a mistrial in this case are
undoubtedly closer to those found in a jury deadlock situation,
rather than those in which a prosecutor has sought to obtain a
tactical advantage through a mistrial. Here, the government did
not even seek a mistrial and, instead, consented to proceed to
verdict with eleven jurors who had previously acquitted Islam
of the honest services fraud charges in Phase I. Thus, while
manifest necessity standard is a mixed question of law and fact
subject to our plenary review, Rivera, 384 F.3d at 55, we will
“afford great deference to the trial court’s discretion,”
Crawford, 646 F.2d at 817.

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C.
In this case, we hold the District Court considered and
exhausted all reasonably available alternatives such that its
decision to declare a mistrial was manifestly necessary. It
therefore did not abuse its discretion when it discharged the
jury.
Once becoming aware that Juror 3 had been infected
with COVID-19, the District Court attempted to avoid a
mistrial by requesting that the parties consent to proceed with
a jury of eleven. The District Court also considered adjourning
the trial for five days and reconvening once Juror 3 recovered
from COVID, but it reasonably rejected this alternative as
impractical given the cumulative stress on the jury from a
lengthy and difficult trial, issues with some jurors not being
compensated during their extended period of service, and
scheduling conflicts that further delay would cause due to the
jury foreperson’s long-planned overseas family vacation. We
have previously recognized that it is proper for district courts
to consider factors such as juror fatigue, inability to
concentrate, frustration, and length of service in an analysis of
manifest necessity, Crawford, 646 F.2d at 819, and will not
disturb the District Court’s painstaking analysis as to the
practicality of a five-day-long adjournment.
It is plainly obvious, then, that the District Court’s
finding of manifest necessity was correct. When defense
counsel advised that Islam would not proceed with fewer than
twelve jurors and did not offer any additional alternatives, the
District Court’s only remaining option was to declare a
mistrial.

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Islam concedes his refusal to proceed with a jury of
eleven made the declaration of a mistrial “unavoidable.” Islam
Br. 17. Instead, he contends the prior dismissal of Juror 6—the
juror who suffered the sudden an unexpected death of his
cousin—was unnecessary and “the proximate or precipitating
cause of the mistrial.” Id. This argument fails. Despite Islam’s
characterization of the facts, the dismissal of Juror 6 was not
“the very last event before recessing for a three-day weekend.”
Id. at 20-21. In fact, after Juror 6 was dismissed during the
lunch break on Thursday, November 3, trial continued for the
rest of that afternoon and the following day. The District Court
declared a mistrial on Monday, November 7—following a two-
day weekend during which another juror tested positive for
COVID-19. The “proximate or precipitating causes” of the
mistrial were, accordingly, the two events that left the District
Court with no way to proceed to verdict: (1) Juror 3 contracting
COVID-19 and (2) Islam refusing to continue on with eleven
jurors.
Even if we accept Islam’s logic—which, notably, would
mean the mistrial had countless proximate causes, including
the dismissal of four other jurors over the course of a nearly
six-week trial—his challenge would fail because the District
Court did not abuse its discretion when it dismissed Juror 6. “It
should go without saying that decisions related to juror
substitution are within the discretion of the trial court.” United
States v. Penn, 870 F.3d 164, 171 (3d Cir. 2017). Here, the
District Court thoughtfully considered alternatives to
dismissing Juror 6. In addition to asking Juror 6 to continue his
service, the District Court thoroughly analyzed the alternative
offered by defense counsel—adjourning on Friday to allow the
juror to grieve over the weekend. But the District Court
reasonably rejected this alternative because of Juror 6’s level

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of distraction and issues that a Friday recess would cause given
an already-scheduled recess the next week for Election Day.
The District Court’s decision to dismiss Juror 6 was therefore
not “arbitrary, fanciful, or clearly unreasonable” such that “no
reasonable person would adopt [its] view,” United States v.
Green, 617 F.3d 233, 239 (3d Cir. 2010) (quoting United States
v. Starnes, 593 F.3d 196, 214 (3d Cir. 2009)), and did not
constitute an abuse of discretion.
D.
Islam attempts to rely on three of our prior cases—
United States v. Pharis, 298 F.3d 228 (3d Cir. 2002), Love v.
Morton, 112 F.3d 131 (3d Cir. 1997), and United States v.
McKoy, 591 F.2d 218 (3d Cir. 1979)—to contend the District
Court erred in finding manifest necessity. We are unconvinced.
In Pharis, the district court dismissed the jury pending
an interlocutory appeal of an evidentiary ruling. 298 F.3d at
233. We held there was no manifest necessity to declare a
mistrial because there were “clear alternatives to termination,”
including staying the trial during the pendency of the appeal.
Id. at 242. The jury in Pharis, however, had only served for a
few days before being discharged, id. at 233, whereas the jury
in this case had served for nearly six weeks. And, as Islam
concedes, when the District Court declared a mistrial, it was
“unavoidable.” Islam Br. 17. Because there were no “clear
alternatives to termination” when the District Court declared a
mistrial, Islam’s reliance on Pharis is misplaced.
Love dealt with a habeas petitioner who challenged his
conviction after having been tried twice in state court for
robbery and armed robbery. 112 F.3d at 133-35. In the first

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trial, the judge abruptly declared a mistrial without input from
counsel after learning his mother-in-law had died. Id. at 134-
35. We held there was no manifest necessity to declare a
mistrial because the court did not consider reasonable
alternatives to dismissing the jury, including temporarily
excusing the jury so the parties could explore the option of
continuing the trial with the same jury in front of a different
judge. Id. at 137. In McKoy, we similarly found no manifest
necessity where the trial judge hastily declared a mistrial
without considering clearly available alternatives after it
became clear the defendant’s trial attorney might have been a
material witness. 591 F.2d at 219-21. As previously discussed,
the District Court here only declared a mistrial after carefully
considering and rejecting all reasonable alternatives. Neither
Love nor McKoy provides a basis for reversal.
* * *
The District Court recognized it faced “unwelcome
choices” as unexpected issues outside of its control resulted in
a constitutionally insufficient number of jurors. Nonetheless,
the District Court consistently acted within its discretion and
respected the integrity of the trial process. See, e.g., Dkt. 461,
at 77:9. When Islam withheld his consent to proceed with a
jury of eleven, the District Court correctly recognized that “the
only choice that remain[ed]” was to declare a mistrial. Dkt.
463, at 7:7. Because the District Court appropriately declared
a mistrial based on manifest necessity, the Double Jeopardy
Clause does not bar Islam’s reprosecution and conviction.5
5 The Government also contends Islam consented to the
declaration of a mistrial. Because we conclude the District

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III.
We will affirm the District Court’s order as to Islam and
dismiss Dawan’s appeal as moot.
Court correctly declared a mistrial based on manifest necessity,
we will decline to reach this issue on appeal.

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