McKoy

Roy Frank McKoy and Lou Etta McKoy were indicted for willfully subscribing false income tax returns. 26 U.S.C. § 7206 (1). Trial commenced, but a mistrial was declared because of Jencks Act 1 violations by the government. 18 U.S.C. § 3500 . A new trial was set. The McKoys then asserted that retrial was barred by their right to be free from double jeopardy. The district court denied their motion, but suppressed the use of testimony from two government witnesses. Both the McKoys and the government appealed. We affirm in part, reverse in part, and remand.

BACKGROUND

A federal grand jury for the district of Nevada indicted the McKoys on three counts of willfully subscribing false federal income tax returns for the years 1987, 1988, and 1989. 26 U.S.C. § 7206 (1). The indictment charged that the McKoys underrepresented their adjusted gross income by several hundred thousand dollars for each of the years in question.

Before their first trial, the McKoys made a discovery motion in which they asked for all statements made by Santillo Troy, Joan Lengaeher, Andrew Tomaro, and Danny Tomaro. The government agreed that it would produce all Jencks Act 2 materials thirty days before trial. It…