Rodriguez

MEMORANDUM *

Mauricio Rodriguez appeals from the district court’s denial of his motion to dismiss his indictment on double jeopardy grounds and failure to hold an evidentiary hearing. We have jurisdiction under 28 U.S.C. § 1291 , 1 and we reverse and remand with instructions that the district court hold an evidentiary hearing on whether the prosecutor deliberately provoked a mistrial.

Generally, when a defendant moves for and is granted a mistrial, the Double Jeopardy Clause of the Fifth Amendment is no bar to retrial. See Oregon v. Kennedy, 456 U.S. 667, 672-73 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982). However, for “those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial,” the Fifth Amendment prohibits the government from trying the defendant again for the same offense. Id. at 679 , 102 S.Ct. 2083 . “Prosecutorial misconduct alone, in the absence of such an intent, does not invoke the bar of double jeopardy.” United States v. Hagege, 437 F.3d 943, 951 (9th Cir.2006) (citing Kennedy, 456 U.S. at 675-76 , 102 S.Ct. 2083 ).

A district court’s denial of a motion to hold an evidentiary…

dissenting.

I would affirm. The district court did not abuse its discretion by declining to hold an evidentiary hearing. The same judge presided over all phases of the case. The district court inquired into the circumstances of the mistrial and elicited an explanation from the prosecutor regarding his conduct. The prosecutor, as an officer of the court, explained why he did what he did. The district judge, who observed events in real-time, accepted the prosecutor’s explanation. I would defer to that decision because “the district court was uniquely positioned to evaluate the prosecutor’s conduct.” United States v. Hagege, 437 F.3d 943, 953 (9th Cir.2006).

I also read the record differently from the majority. In context, the prosecutor’s statement—made after the mistrial had been granted—that the case was “floundering” was not an admission of weakness, but mis-directed sarcasm related to a supposed lack of balance in Rule 16’s discovery obligations. While the district court initially observed that the trial was on a “rocky road so far,” upon reflection, the *550 court concluded that there was likely no error or that any error was harmless. Rodriguez was arrested with…