Rodriguez

MEMORANDUM **

Defendant/Appellant Mauricio Rodriguez (“Rodriguez”) appeals from the final order of the district court denying his motion to dismiss an indictment pursuant to the Double Jeopardy Clause of the Fifth Amendment. Rodriguez was arrested and indicted for felony drug trafficking. During his first trial, Rodriguez moved for a mistrial on the basis of prejudicial testimony and discovery violations. After the district court granted the motion, Rodriguez moved to dismiss the indictment pursuant to Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982), which held that a subsequent proceeding may be *224 barred by the Fifth Amendment if the government intentionally provokes a mistrial. The district court denied the motion to dismiss without holding an evidentiary hearing, and Rodriguez immediately appealed. The district court retained jurisdiction over the proceeding, despite the notice of appeal, on the ground that the motion to dismiss was frivolous.

We heard the interlocutory appeal and reversed the decision of the district court. See U.S. v. Rodriguez, 229 Fed.Appx. 547 (9th Cir.2007). Holding, inter alia, that “the prosecution potentially had much to…