Castro-Zepeda

MEMORANDUM *

Ramon Castro-Zepeda (“Castro-Zepe-da”) appeals the district court’s denial of a motion to dismiss his indictment based on double jeopardy and denial of a motion for an evidentiary hearing to determine the prosecutor’s intent. We affirm.

The principles governing double jeopardy after a mistrial are set out in Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982). As a general rule, when a defendant requests a mistrial, there is no double jeopardy. Id. at 673 , 102 S.Ct. 2083 . However, there is an exception to the rule when the “prosecutor’s actions giving rise to the motion for mistrial were done ‘in order to goad the [defendant] into requesting a mistrial.’ ” Id. (quoting United States v. Dinitz, 424 U.S. 600, 611 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976)). A mistrial does not bar retrial “unless the defendant can show that the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” United States v. McKoy, 78 F.3d 446, 449 (9th Cir.1996). When we consider the prosecutor’s intent, we focus on the strength with which the government fought the mistrial and the strength of the…