                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                  PUBLISH                               DEC 11 1998

                                                                    PATRICK FISHER
              UNITED STATES COURT OF APPEALS                                 Clerk
                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.
                                                      No. 97-2366
 JOSE DE JESUS VALADEZ-
 CAMARENA,

       Defendant-Appellant.


                  Appeal from the United States District Court
                        for the District of New Mexico
                           (D.C. No. CR-97-231 JP)


Peter E. Edwards, Assistant Federal Public Defender (Ann Steinmetz, Federal
Public Defender, with him on the briefs), Las Cruces, New Mexico, for
Defendant-Appellant.

Paula Burnett, Assistant United States Attorney (John J. Kelly, United States
Attorney, and Peter M. Ossorio, Supervisory Assistant United States Attorney, on
the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.



Before SEYMOUR, Chief Judge, PORFILIO and BRORBY, Circuit Judges.


SEYMOUR, Chief Judge.
      In late October 1997, Jose de Jesus Valadez-Camerena was on trial for

conspiracy, 21 U.S.C. § 846, and possession with intent to distribute over five

kilograms of cocaine, 21 U.S.C. § 841 (a) (1) & (b) (1) (A). In the middle of the

trial, the government questioned an expert witness beyond the scope allowed by

the judge. Mr. Valadez-Camarena moved for a mistrial, which was granted. He

subsequently contended the Double Jeopardy Clause barred retrial because the

prosecutor had goaded defense counsel into requesting a mistrial. After the

district court held the prosecutor had not intended to provoke a mistrial, Mr.

Valadez-Camarena was retried and convicted. He appeals, challenging only the

district court’s decision to allow a retrial. We affirm the conviction.

                                         I.

      In March 1997, Mr. Valadez-Camarena and a companion crossed the

Mexican-American border and drove into the United States Border Patrol

checkpoint south of Deming, New Mexico. After agents questioned him and

noticed the strong smell of air freshener, they asked if they could further inspect

his car. Mr. Valadez-Camarena consented, and the agents conducted a canine

inspection which revealed packages of cocaine in hidden compartments of the car.

A red leopard decal marked some of the cocaine packages and a red dove decal

marked the others.

      During the next two weeks agents stopped three other cars carrying cocaine


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in similarly constructed secret compartments. The cocaine packages from these

cars were also marked with either the red leopard or the red dove decal. The

government charged Mr. Valadez-Camarena and the other adults caught with the

marked packages with conspiracy and possession with intent to distribute five or

more kilograms of cocaine.

      At Mr. Valadez-Camarena’s trial, the prosecution offered Dr. Edward

Fransoza, a senior forensic chemist at the Drug Enforcement Agency (DEA), as

an expert witness to testify that, on the basis of microscopic inspection, the same

devices created the decals on the separately seized packages. Counsel for the

government and the court engaged in the following colloquy to determine the

permissible parameters of the expert’s testimony:

      Mr. Ossorio:        [Dr. Fransoza] is not going to say that [the decals]
                          come[] from a particular drug trafficking group or
                          a particular cartel or anything like that. It’s more
                          in the – it’s simply in the area of basic tool mark
                          identification, screening and printing processes
                          whereby one process prints a logo and apparently
                          the same device, whatever it is, a stamp or a
                          screen prints the same logo on another piece of
                          plastic.

      The Court:          So, basically, all of the loads that you have
                          mentioned in your case in chief, he’s going to
                          address the markings on all of those and the
                          packaging on all of those and express an expert
                          opinion as to that they are all similar in packaging
                          and the stamp comes from the same stamping
                          equipment.


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      Mr. Ossorio:         Exactly.


Rec., vol. 3, at 146. Defense counsel raised objections on relevancy grounds

which the court overruled.

      Dr. Fransoza explained that every time the government seizes cocaine

packaging, the DEA investigates the markings on the packages and compares it to

markings on packaging previously seized. If the DEA does not have a copy of the

marking, it catalogs the new marking in its reference collection. Dr. Fransoza

then testified that the red leopard on the packages found in Mr. Valadez-

Camarena’s car “came from the same device and therefore the same

manufacturing source as the sample I took out of the reference collection to

compare with . . . except . . . [t]he sample from the reference collection was

printed in green ink, and this is printed in red ink.” Id. at 161.

      Soon thereafter, the court requested that counsel approach the bench and

admonished the prosecutor for questioning the witness beyond the scope of what

was tendered. The court and defense counsel were concerned that Dr. Fransoza’s

testimony about the green leopard already in the reference collection would

seriously prejudice the jury by implying that defendant had been involved with

drugs previously confiscated by the government. After excusing the jury, the

court and prosecution engaged in the following exchange:

      The Court:           Why was it necessary to elicit testimony about the

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                           green reference leopard that he had in his
                           computer independent of the loads that are the
                           subject of this case?

      Mr. Ossorio:         Well, simply because that was the procedure that
                           he always uses and that he used in this case, Your
                           Honor.

      The Court:           And you don’t see a problem with that Mr.
                           Ossorio?

      Mr. Ossorio:         No, Your Honor, I don’t.

Rec, vol. 3, at 165-66. After further discussion, defense counsel “mov[ed] for

mistrial or in the alternative to strike all testimony of Dr. Fransoza.” Id. at 168-

69. The prosecution argued against a mistrial and asked instead for the court to

give a limiting instruction. The court considered the matter and decided to grant

the mistrial because it believed limiting instructions could not effectively cure Dr.

Fransoza’s prejudicial testimony.

      A few days later, on November 3, 1997, Mr. Valadez-Camarena moved for

a dismissal based on double jeopardy. 1 The court denied the motion, finding

“absolutely no evidence of any attempt by the Government in this case to goad the

Defendant into moving for a mistrial. . . . The prejudicial testimony elicited by

the Government can, at best, be characterized as prosecutorial negligence or


      1
        Judge Vazquez was the original trial judge. Judges rotate through Las
Cruces for one month at a time. Because the first trial took place at the end of
October and defendant’s motion was filed in early November, the judge ruling on
the double jeopardy motion was Judge Conway, who had not granted the mistrial.

                                          -5-
mistake.” Brief of Aplt., Att. D at 1. Mr. Valadez-Camarena was subsequently

tried and convicted.

                                          II.

      “The Double Jeopardy Clause of the Fifth Amendment protects a criminal

defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy,

456 U.S. 667, 671 (1982) (footnote omitted). Although the Double Jeopardy

Clause usually bars retrial where the prosecution moves for a mistrial over the

objection of the defense, in select circumstances it also prevents retrial where the

first trial ended at the defendant’s request. See id. at 672-673. When a

prosecutor “‘goad[s] the [defendant] into requesting mistrial’ . . . the defendant’s

valued right to complete his trial before the first jury would be a hollow shell”

were retrial permissible. Id. at 673 (quoting United States v. Dinitz, 424 U.S.

600, 611 (1976)); United States v. McAleer, 138 F.3d 852, 855-56 (10th Cir.

1998). Therefore, if the government intended to provoke the defendant into

moving for a mistrial, retrial is barred. See Kennedy, 456 U.S. 679. The Double

Jeopardy Clause applies only where the prosecution intentionally goads the

defense, not where the prosecution is mistaken, careless, or even harassing. See

United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992); United States v.

Poe, 713 F.2d 579, 583 (10th Cir. 1983).

      Some confusion exists in this circuit over the appropriate standard by which


                                         -6-
to review the district court’s decision in a double jeopardy goading case. Mr.

Valadez-Camarena argues that we should apply a de novo standard, while the

government contends that the abuse of discretion standard is proper. Both parties

cite cases from this circuit as support for their positions.

      The Supreme Court has made clear, however, that determining whether a

prosecutor intended to goad the defense “merely calls for the court to make a

finding of fact.” Kennedy, 456 U.S. at 675. Such findings are reviewed for clear

error. See, e.g., United States v. Johnson, 55 F.3d 976, 978 (4th Cir. 1995);

United States v. Ivory, 29 F.3d 1307, 1310-11 (8th Cir. 1994); United States v.

Millan, 17 F.3d 14, 18 (2d Cir. 1993); United States v. Nichols, 977 F.2d 972, 974

(5th Cir. 1992) (per curiam); United States v. Dante, 739 F.2d 547, 548 (11th Cir.

1984); United States v. Curtis, 683 F.2d 769, 776 (3d Cir. 1982). Consequently,

in the specific context of double jeopardy goading cases, we will uphold the trial

court’s determination unless we conclude it is clearly erroneous.

      It is true that we review de novo many issues brought under the Double

Jeopardy Clause, as many of them raise questions of law. See, e.g., United States

v. Sarracino, 131 F.3d 943, 949-950 (10th Cir. 1997) (concluding that separate

federal convictions for murder and kidnapping do not offend the Double Jeopardy

Clause); United States v. Johnson, 130 F.3d 1420, 1424 (10th Cir. 1997)

(reviewing a claim of multiplicity); United States v. Sasser, 974 F.2d 1544, 1550


                                          -7-
(10th Cir. 1992) (determining whether defendant participated in single conspiracy

or two separate conspiracies for double jeopardy purposes). Even in such cases,

however, we examine the underlying factual findings under a clearly erroneous

standard. See United States v. Cordoba, 71 F.3d 1543, 1545 (10th Cir. 1995).

We recognize that in a prior goading case we reviewed the district court’s

decision to permit retrial for an abuse of discretion without addressing Kennedy.

See Powell, 982 F.2d at 1429. Powell’s application of the abuse-of-discretion

standard is not contrary to Kennedy, however, since in this kind of a case “‘[a]

district court would necessarily abuse its discretion if it based its ruling on . . . a

clearly erroneous assessment of the evidence.’” Lyons v. Jefferson Bank & Trust,

994 F.2d 716, 727 (10th Cir. 1993) (quoting Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405 (1990)); see also Barrett v. Tallon, 30 F.3d 1296, 1302 (10th

Cir. 1994).

      The record here strongly supports the district court’s finding that the

prosecution did not intend to provoke the defense into moving for a mistrial.

Although the court held the prosecutor elicited inadmissible testimony from the

expert witness, there is simply no evidence that the prosecutor was trying to goad

the defense into moving for a mistrial. To the contrary, he seemed unaware of his

mistake and contested defendant’s mistrial motion, suggesting alternative

remedies. Because there is no indication of intent on the part of the prosecutor,


                                           -8-
this case does not fall into the “narrow exception” outlined in Kennedy, 456 U.S.

at 673.

      We uphold the district court’s ruling that the prosecution did not intend to

goad the defense into requesting a mistrial, and we therefore AFFIRM Mr.

Valadez-Camarena’s conviction.




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