USA v. Juan Gutierrez, et al
UNPUBLISHED OPINION FILED. [14-20360 Affirmed ] Judge: CDK , Judge: EGJ , Judge: CH Mandate pull date is 05/18/2015 [14-20360]
Date Filed: 04/27/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
April 27, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA,
JUAN GUTIERREZ; JUAN GUTIERREZ ALVAREZ,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-261-3
USDC No. 4:12-CR-261-4
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
A second superseding indictment charged Juan Gutierrez (Gutierrez)
and Juan Gutierrez Alvarez (Alvarez) with possession with intent to distribute
500 grams or more of a mixture or substance containing a detectable amount
of methamphetamine and conspiracy to do the same. On the third day of trial,
after the prosecutor cross-examined Alvarez, the district court granted
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Date Filed: 04/27/2015
defendants’ request for a mistrial. In granting the mistrial, the district court
cited instances where it believed the prosecutor tried to circumvent the court’s
order that the prosecutor not delve into matters of immigration status.
Thereafter, Gutierrez and Alvarez filed a joint motion to dismiss, arguing that
the prosecutor had provoked a mistrial in violation of the Double Jeopardy
Clause. The district court denied the motion to dismiss, finding that the
prosecutor did not intend to provoke a mistrial.
This court reviews the denial of a motion to dismiss on double jeopardy
grounds de novo, and accepts as true the district court’s underlying factual
findings unless clearly erroneous. United States v. Dugue, 690 F.3d 636, 63738 (5th Cir. 2012). A defendant generally waives double jeopardy protection
by consenting to a mistrial. United States v. Botello, 991 F.2d 189, 192 (5th
Nevertheless, the Supreme Court has recognized a narrow
exception to this general rule; a defendant who was goaded into seeking a
mistrial may invoke double jeopardy protections to avoid a retrial. See Oregon
v. Kennedy, 456 U.S. 667, 676 (1982). Although the prosecutor in this case
acted improperly, prosecutorial misconduct alone—even harassment or
overreaching—is not enough for a retrial to result in a double jeopardy
Id. at 675-76.
Gross negligence by the prosecutor, or even
intentional conduct that seriously prejudices the defendant, is insufficient by
itself to apply the double jeopardy bar. United States v. Wharton, 320 F.3d
526, 531-32 (5th Cir. 2003). Instead, there must be intent on the part of the
prosecutor to subvert the protections afforded by the Double Jeopardy Clause.
Kennedy, 456 U.S. at 676.
Under this narrow standard, the court must
examine the “objective facts and circumstances” to determine the prosecutor’s
intent. Kennedy, 456 U.S. at 675.
Date Filed: 04/27/2015
Considering the facts and circumstances of the instant case, the district
court’s finding that the prosecutor did not intend to provoke a mistrial in
violation of the Double Jeopardy Clause was not clearly erroneous. In the face
of the district court’s factual finding that the prosecutor’s improper actions
were not intended to cause a mistrial, Gutierrez and Alvarez are unable to cite
to any concrete evidence, beyond mere speculation, of the prosecutor’s “clear
intent” to provoke a mistrial. See Dugue, 690 F.3d at 638. Moreover, the
prosecutor in this case vigorously opposed a mistrial when the defendants
requested it, which militates against a finding that the prosecutor intended to
cause a mistrial. See Wharton, 320 F.3d at 532. Finally, the manner in which
the prosecutor tried to elicit information about Alvarez’s immigration status
suggests the he did not intend to provoke a mistrial. “Had the prosecutor
actually intended to provoke a mistrial, he could have violated the court’s
limitation by expressly [asking Alvarez about his immigration status]. But he
did not do so.” See United States v. Singleterry, 683 F.2d 122, 125 (5th Cir.
In view of the foregoing, the district court’s judgment is AFFIRMED.
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