                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 05a0601n.06
                                Filed: July 14, 2005

                                                   No. 04-3617

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                          )
                                                                   )          ON APPEAL FROM THE
         Plaintiff-Appellant,                                      )          UNITED STATES DISTRICT
                                                                   )          COURT     FOR     THE
v.                                                                 )          NORTHERN DISTRICT OF
                                                                   )          OHIO
ANDRE S. COLVIN,                                                   )
                                                                   )                     OPINION
         Defendant-Appellee.                                       )




BEFORE: NORRIS and DAUGHTREY, Circuit Judges; JORDAN, District Judge.*

         ALAN E. NORRIS, Circuit Judge. The government appeals from the district court’s

decision to bar retrial of defendant Andre Colvin pursuant to the Double Jeopardy Clause of the

Fifth Amendment after the court granted his motion for a mistrial. Colvin was charged with

violating 18 U.S.C. § 922(g)(1) for unlawful possession of firearms by a convicted felon and two

counts of aiding and abetting the making of false statements in connection with the purchase of

firearms, in violation of 18 U.S.C. § 922(a)(6). During cross-examination of a government witness,

defense counsel ascertained that the government did not disclose an unverified lead concerning the

whereabouts of an uncharged accomplice. The district court granted a mistrial and determined that

retrial was barred by double jeopardy. This appeal ensued.


         *
          The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
No. 04-3617
United States v. Colvin

                                                  I.

       On August 17 and 18, 2002, Colvin spoke with Betty Jo Keefer and Chelita Parker,

respectively, and arranged for them to help him with an errand. He and another man, who is referred

to as “Rich” in the record, picked up the two women on the morning of August 18. Neither Parker

nor Keefer had met Rich before. Colvin then drove the foursome to the Summit County, Ohio

Fairgrounds where a gun sale was taking place.

       In her testimony, Parker indicated that Rich suggested that she peruse the guns. Then,

Colvin asked her to fill out an application to purchase some guns and directed her to ascertain their

price. He selected two handguns, and Rich gave her money to purchase the guns.

       Meanwhile, Keefer was at another table looking at guns. She testified that “Richard

followed me and Dollar [Colvin] was walking around and I filled out my application and Richard

basically stuck around me but Dollar was picking out—they both picked out what guns they

wanted.” Again, Rich supplied the money to buy the guns.1

       After the transactions were completed, Parker and Keefer carried them to Colvin’s car and

put them in the trunk. They both testified that they never saw the guns again.

       Later, Parker became concerned that she would be blamed for purchasing the guns “if

anything happened” with them and told Colvin that she was going to report them as stolen.

Similarly, Keefer testified that Colvin told her to report that the guns she purchased had been stolen.




       1
       Colvin was only indicted for Parker’s gun purchase because the guns that Keefer bought
were manufactured in Ohio and did not pass through interstate commerce.

                                                 -2-
No. 04-3617
United States v. Colvin

On August 20, 2002, both women filed separate, false incident reports with the Akron Police

Department.

        In order to investigate the allegations, detectives Paul Bralek and Matt Hudak and Special

Agent Charles Turner contacted both women. Detective Bralek testified that Keefer’s report looked

suspicious and that when he interviewed her regarding the theft, he informed her that he did not

believe that her allegations were true. Eventually, she admitted that she falsely filed the report and

had purchased the guns for Colvin, whom she knew to be a convicted felon.

        Following this admission, the officers pressed Keefer to make a recorded call to Colvin to

arrange for a staged drug buy. Colvin agreed to a meeting, but when he arrived, he told Keefer that

he did not have drugs to sell. The police arrested Colvin for driving with a suspended license and

later charged him with the unlawful possession of firearms by a felon. After Colvin was arrested,

the officers conducted an inventory of his automobile but never found the guns.

        The officers learned that Parker similarly falsified her incident report during their interview

with Keefer. Both Parker and Keefer were charged with filing false police reports and were ordered

to pay a fine.

        In connection with their investigation of the gun transactions, the police officers never

searched the homes of Parker or Keefer. Moreover, although Keefer provided the officers with an

address were Colvin had stayed, they did not search that residence. However, Turner testified that

he performed a computer query of the address and did not find a connection between that residence

and Colvin.




                                                 -3-
No. 04-3617
United States v. Colvin

       Prior to trial, one of the nine guns purchased at the show was recovered in connection with

a crime that was committed while Colvin was in custody. Agent Turner testified that he could not

interview the person arrested in connection with that gun because “[t]he person that it was recovered

from was not made available to me.”

       Colvin was indicted under 18 U.S.C. § 922(g)(1) for unlawful possession of firearms by a

convicted felon and for aiding and abetting the making of false statements in connection with the

purchase of firearms, in violation of 18 U.S.C. § 922(a)(6). On the third day of trial, Agent Turner

testified as the government’s final witness. During cross-examination, defense counsel sought to

highlight the deficiencies in the offices’ investigation:

               Q: Was there any follow up with respect finding this Rich?

               A: Yes.

               Q: What follow up did you—what follow up did you participate in[?]

               A: I recently had some other telephone numbers that were on these phone tolls
                  subpoenaed for subscriber information and I believe we may have
                  identified Rich and I went to his house and left a business card for the
                  individual to call me back and I haven’t heard from the individual as yet.

       According to Brady v. Maryland, 373 U.S. 83 (1963), the government must disclose to the

defendant all exculpatory evidence in its possession. Id. at 87. Therefore, in light of this new,

possibly exculpatory information, defense counsel requested a mistrial. The prosecutor admitted

that she became aware of this information the first morning of trial, but defended her decision not

to pass it along to Colvin by saying “I don’t know that it’s the guy; that the investigation just isn’t




                                                 -4-
No. 04-3617
United States v. Colvin

complete.” The government suggested on several occasions that the court should give a curative

instruction to limit Agent Turner’s testimony.

       Ultimately, the district court granted the motion for a mistrial, but added that it had not

decided yet whether the government could retry Colvin.

       On April 13, 2004, the district court entered an order declaring that “[f]or the reasons set

forth in the Memorandum Opinion to be filed shortly, the court finds that double jeopardy has

attached, and the government is barred from re-charging or re-trying Colvin on the alleged offense

charged in the instant indictment.”

       The government filed a notice of appeal. On November 5, 2005, while the appeal was

pending, the district court entered a Memorandum and Order setting forth the basis for its conclusion

that double jeopardy barred retrial.

                                                 II.

       We review a claim of double jeopardy de novo. United States v. Dakota, 197 F.3d 821, 826

(6th Cir. 1999); see also United Sates v. Neal, 93 F.3d 219, 221 (6th Cir. 1996). However, whether

the prosecutor intended to goad the defendant into requesting a retrial is a question of fact and

therefore subject to review for clear error. See Oregon v. Kennedy, 456 U.S. 667, 675 (1982); see

also United States v. Vallejo, 297 F.3d 1154, 1162 (11th Cir. 2002).

       The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from

multiple prosecutions for the same offense. Kennedy, 456 U.S. at 671. Where a mistrial has been

declared, the defendant’s “valued right to have his trial completed by a particular tribunal” is

implicated. Id. at 671-72 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).

                                                 -5-
No. 04-3617
United States v. Colvin

        If the court declares a mistrial without a defendant’s consent, retrial presumably violates the

Double Jeopardy Clause unless “there is manifest necessity for the [mistrial], or the ends of public

justice would otherwise be defeated.” Tinsley v. Million, 399 F.3d 796, 812 (6th Cir. 2005) (quoting

United States v. Perez, 22 U.S. (9 Wheat.) 479, 580 (1824)). In the case of a mistrial declared at the

defendant’s request, the “manifest necessity” test is not triggered because the defendant himself has

elected to terminate the proceedings against him. Kennedy, 456 U.S. at 672. Traditionally, then,

retrial is permissible when the defendant requests a mistrial. See United States v. Tateo, 377 U.S.

463, 467 (1964) (“If [defendant] had requested a mistrial on the basis of the judge’s comments, there

would be no doubt that if he had been successful, the Government would not have been barred from

retrying him.”)

        There is one caveat, however, to the rule that the Double Jeopardy Clause is no bar to retrial.

The Supreme Court has described this narrow exception to be “where the prosecutor’s actions giving

rise to the motion for mistrial were done ‘in order to goad the [defendant] into requesting a

mistrial.’” Kennedy, 456 U.S. at 673 (quoting United States v. Dinitz, 424 U.S. 600, 611 (1976)).

If the prosecutor were to force the defendant’s hand in such a manner, “the defendant’s valued right

to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial

were held to prevent a later invocation of the bar of double jeopardy in all circumstances.” Id. In

order to determine whether the prosecutor engaged in misconduct sufficient to warrant the

invocation of double jeopardy, we must examine her “intent from objective facts and

circumstances.” Id. at 675.




                                                  -6-
No. 04-3617
United States v. Colvin

       This circuit has noted that in order to prove prosecutorial misconduct that triggers double

jeopardy, the defendant must demonstrate more than a deliberate act on the part of the prosecutor:

“there must be a showing that the prosecutor’s deliberate conduct was intended to provoke the

defendant into moving for a mistrial.” United States v. White, 914 F.2d 747, 752 (6th Cir. 1990).

       In holding that the Double Jeopardy Clause barred re-prosecution of Colvin, the district court

reasoned that the government was aware that the defense hinged on placing blame for the straw

purchases on Rich, and by concealing the fact that police might have located Rich, the government

deprived Colin of the opportunity to investigate this defense. Moreover, in the district court’s view

“[e]ven with the government’s continuing deliberate silence on that issue, Colvin presented an

increasingly strong case for acquittal[.]” Memorandum and Order, November 5, 2004, at 23.

According to the district court, the “evidence and testimony up through the declaration of a mistrial

strongly suggests that the jury might well harbor a reasonable doubt about Colvin’s guilt.” Id. at 21.

The opinion makes clear that the district court considered the government’s case to be weak because

no weapon was found in Colvin’s possession, because the police conducted a lackluster search for

the guns, and because Rich appeared to pay for and direct the gun purchases.

       With respect to the government’s intent, the district court proposed that “[t]he prosecution

apparently reasoned that it could provoke Colvin into moving for a mistrial, it would escape defense

counsel’s solid performance here and have time to prepare a far stronger case for re-trial with Rich’s

help.” Memorandum at 25-26. In conclusion, the district court explained that a mistrial should not

be allowed to “operate[] as a ‘post-jeopardy continuance to allow the prosecution to strengthen its




                                                -7-
No. 04-3617
United States v. Colvin

case.’” Id. at 28 (citing United States v. Wilson, 534 F.2d 76, 80 (6th Cir. 1976) (quoting Illinois

v. Somerville, 410 U.S. 458, 469 (1973))).

       Pursuant to applicable precedent, the pertinent question before the district court was whether

the evidence demonstrated that the prosecution intended to provoke a mistrial. The district court

speculated that the government intended to cause a mistrial because its case against Colvin was not

going well, but the prosecutor’s actions at trial belie such an intent. As the government aptly notes

in its brief, defense counsel elicited the information that led to a mistrial. Furthermore, when

defense counsel requested the mistrial, the prosecutor suggested on several occasions that the proper

remedy was a curative instruction, not a mistrial. Both of these considerations are relevant to the

question of the government’s intent.

       Moreover, the government’s case was not as weak as the district court described. The

testimony presented at trial established that, although Rich paid for the guns, Colvin arranged for

Keefer and Parker to carry out the straw purchases and actively participated in selecting which guns

the women should buy. This evidence, if believed by the jury, would be sufficient to convict Colvin

on the charges listed in the indictment and undercuts the conclusion that the government intended

to elicit a mistrial in order to avoid a guaranteed acquittal. Accordingly, the Double Jeopardy Clause

does not bar defendant’s retrial.

                                                 III.

       For the foregoing reasons, the decision of the district court is reversed and the action

remanded for further proceedings consistent with this opinion.




                                                -8-
