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United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 2 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
vs.
Plaintiff - Appellant,
No. 00-1284
FRANK DANIEL GONZALEZ,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 99-CR-166-N)
Sean Connelly, Assistant United States Attorney (Thomas L. Strickland, United
States Attorney and James C. Murphy, Assistant United States Attorney, with him
on the briefs), Denver, Colorado, for Plaintiff-Appellant.
Warren R. Williamson, Assistant Federal Public Defender (Michael G. Katz,
Federal Public Defender, with him on the brief), Denver, Colorado, for Defendant
- Appellee.
Before KELLY, BALDOCK, and LUCERO, Circuit Judges.
KELLY, Circuit Judge.
The government appeals from the district courts dismissal of the
indictment against Frank Gonzales. We have jurisdiction under 18 U.S.C. 3731
if double jeopardy does not bar the appeal.
United States v. Hunt , 212 F.3d 539,
542-43 (10th Cir. 2000). We conclude that the appeal is not barred by double
jeopardy and reverse and remand for further proceedings.
Background
Frank Gonzalez and his co-defendant, Miguel Espinoza, were charged with
(1) conspiracy to distribute and possess with intent to distribute heroin and
cocaine, 21 U.S.C. 841(a)(1), (b)(1)(A), 846; (2) distribution and possession
with intent to distribute heroin and cocaine, 21 U.S.C. 841(a)(1), (b)(1)(A), 18
U.S.C. 2; (3) interstate travel with intent to promote and carry on drug
trafficking, 18 U.S.C. 1952(a)(3), 2; and (4) criminal forfeiture, 21 U.S.C.
853. On the first day of Mr. Gonzales trial, the governments second witness,
FBI Special Agent Kevin Guidry, testified that he and another agent began
surveillance of Mr. Espinoza in San Jose, California on the morning of August 9,
1997. III R. at 90. Mr. Espinoza boarded an airplane bound for Denver,
Colorado, which Agent Guidry and the other agent also boarded.
Id. at 91. Upon
arriving in Denver, Agent Guidry and a Denver agent followed Mr. Espinoza
throughout the greater Denver area.
Id. at 92-93. Mr. Espinoza stopped at a strip
mall where a Ford Thunderbird with California license plates was waiting.
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Id. at
94. 1 At this point in Agent Guidrys testimony, the following colloquy between
the assistant United States attorney and Agent Guidry occurred:
Q. Very well. Tell us what you personally observed when you
approached this strip mall.
A. I noticed a maroon Ford Thunderbird with California plates
3TST751, which is well-known to me from investigation - MR. WILLIAMSON [counsel for Mr. Gonzales]: Your Honor,
Im going to object to this.
THE COURT: Right. Just answer the question, Agent. I think
you know better than this.
A. I observed a maroon Thunderbird.
Q. What was the license plate number?
A. 3TST751.
Q. Still remember it?
A. Yes.
Q. Had you seen that red Thunderbird before?
A. Yes, I had. In the San Jose, California/Watsonville, California
area.
Q. Where was it when you saw it?
A. It was in the strip mall towards the end of the strip mall.
Q. Well, I mean, in the Watsonville/Salinas, California area?
A. Im not sure what youre - Q. Youve just testified that you had seen that red Thunderbird
before.
A. Yes.
Q. Okay. Lets go - - let me clarify this. Where had you seen it
before?
A. I had seen it in conjunction with a drug investigation.
Id. at 94-95. At this point, counsel for Mr. Gonzales objected and moved for a
mistrial, which the government opposed.
Id. at 96, 98-103. The district court
The government argued in its opening statement that Mr. Gonzales had
driven the Ford Thunderbird from Salinas, California to the strip mall within the
past 24 hours. Id. at 3-4, 10-11. 8.6 pounds of heroin and 6 pounds of powder
cocaine were found behind the firewall of the Ford Thunderbird. Id. at 4, 8-10.
1
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granted the motion, id. at 102, and later granted Mr. Gonzales motion to dismiss
the indictment with prejudice. V R. at 96.
Discussion
On appeal, the government argues that the district court dismissed the
indictment based upon an incorrect legal analysis concerning prosecutorial intent.
We review this issue de novo.
United States v. Valadez-Camarena
, 163 F.3d
1160, 1163 (10th Cir. 1998).
The general rule is that the Double Jeopardy Clause does not bar retrial
where a defendant moves successfully for a mistrial. A narrow exception exists
where the conduct giving rise to the successful motion for a mistrial was
intended to provoke the defendant into moving for a mistrial
Kennedy , 456 U.S. 667, 679 (1982) (emphasis added);
. Oregon v.
United States v. Poe , 713
F.2d 579, 583 (10th Cir. 1983).
At the hearing on Mr. Gonzales motion to dismiss, the district court heard
testimony from the government agent assigned to the case and Agent Guidry. V
R. at 6-64. After considering this testimony, the governments opening
Because we reverse the district courts dismissal of the indictment on
this point of law, we do not reach the governments alternative argument that the
district courts finding that the government intended to goad the defendant into
requesting a mistrial was clearly erroneous.
2
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statement, and the colloquy between the assistant United States attorney and
Agent Guidry, the court found that the government had persisted in introducing
to the jury highly prejudicial evidence that the Thunderbird had been seen in
connection with a drug investigation.
Id. at 89-96. This conduct, the court
concluded, was a result of careful planning and coordination between the
government and Agent Guidry.
Id. at 94. From this evidence of prosecutorial
overreaching, the court relied upon
United States v. McMurry , 818 F.2d 24 (10th
Cir. 1987), and inferred that the government had in fact intended to goad the
defendant into requesting a mistrial.
Id. at 86, 95-96. The court explained that it
could infer such intent under the principle that a person intends the natural and
probable consequences of his or her acts if those acts are knowingly done and
that this is an instruction that is given to juries all the time.
Id. at 86.
The district courts analysis was incorrect. To the extent it allowed an
inference of prosecutorial intent to force a mistrial in the absence of objective
evidence, the analysis was contrary to
McMurry , 818 F.2d at 25-26.
Kennedy and our precedent, including
See also Valadez-Camarena , 163 F.3d at 1163-64;
United States v. Powell , 982 F.2d 1422, 1428-29 (10th Cir. 1992);
Poe , 713 F.2d
at 583. The analysis also was too cursory because, while one natural and
We do not decide whether the prosecution intended to introduce evidence
that the Ford Thunderbird was seen in connection with a drug investigation and
whether such evidence was prejudicial.
3
-5-
probable consequence of prosecutorial efforts to introduce favorable, albeit
prejudicial, evidence might be a mistrial, another natural and probable
consequence of such efforts might be
conviction .
In Kennedy , the Supreme Court drew the distinction between evidence of
prosecutorial overreaching and prosecutorial intent to force a mistrial. The
district court did not recognize or apply this obvious and critical distinction.
Prosecutorial conduct that might be viewed as . . . overreaching, even if
sufficient to justify a mistrial on defendants motion, . . . does not bar retrial
absent intent on the part of the prosecutor to subvert the protections afforded by
the Double Jeopardy Clause. 456 U.S. at 676;
accord Valadez-Camarena , 163
F.3d at 1163. The Seventh Circuit drew this same distinction in
United States v.
Jozwiak :
Prosecutors intend to secure convictions, intend to secure all
advantages the adversary system allows. An overstep . . . may lead
to howls from the defense, and next to an argument that the overstep
was intended to goad the adversary into howling. Yet a search for
intent that leads only to a conclusion that the prosecutor wanted to
win is pointless. We must be looking for intent to do something that
undercuts the interests protected by the double jeopardy clause.
Kennedy distinguishes intent to improve the chance that the trier of
fact will return a favorable decision from the forbidden intent to
avoid decision by the trier of fact.
954 F.2d 458, 460 (7th Cir. 1992) (emphasis in original);
accord United States v.
White , 914 F.2d 747, 752 (6th Cir. 1990). The district courts analysis of the
prosecutions intent in this case did not look[] for intent . . . to
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avoid decision
by the trier of fact.
Jozwiak , 954 F.2d at 460 (emphasis in original).
The practical implications of the district courts analysis of intent in this
context also merit discussion. By focusing on the natural and probable
consequences of prosecutorial conduct rather than the intent underlying such
conduct, the standard employed by the district court would, as the government
argues, convert Kennedy s narrow exception into the rule . . . . Aplt. Br. at 16.
That is, under the district courts reading of
Kennedy , any prosecutorial conduct
that induces the defendant to request a mistrial could bar retrial. Indeed, as the
government observes, under this reading of
Kennedy , many cases - - including
Kennedy itself - - would have been decided differently.
Id. at 18. In Kennedy ,
for example, retrial would have been prohibited because a mistrial was
unquestionably the natural and probable consequence of the prosecutors
question as to why the witness had filed a criminal complaint against the
defendantIs that because he is a crook? 456 U.S. at 669.
In the alternative, Mr. Gonzales argues that the district courts dismissal
should be affirmed because the district court could have dismissed the indictment
by exercising its supervisory power. Aplee. Br. at 24-29. Although we are
unpersuaded by Mr. Gonzales argument that the district court would employ
such a draconian sanction, we decline to consider whether the district court
would have exercised its supervisory power to dismiss the indictment because
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such exercise is an act of discretion that must, of course, be exercised within the
confines of the correct law.
1112, 1116 (10th Cir. 1998);
United States v. Lin Lyn Trading, Ltd.
, 149 F.3d
United States v. Eaton , 31 F.3d 789, 791 (9th Cir.
1994); Barnhill v. United States , 11 F.3d 1360, 1367 (7th Cir. 1993). Only after
such an exercise of discretion would questions of law and fact arise.
See, e.g.,
United States v. Kilpatrick , 821 F.2d 1456, 1460, 1467 (10th Cir. 1987).
REVERSED AND REMANDED.
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