     Case: 14-20360      Document: 00513021393         Page: 1    Date Filed: 04/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                    No. 14-20360                                   FILED
                                  Summary Calendar                             April 27, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN GUTIERREZ; JUAN GUTIERREZ ALVAREZ,

                                                 Defendants-Appellants


                   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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-20360     Document: 00513021393    Page: 2   Date Filed: 04/27/2015


                                 No. 14-20360

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, 637-
38 (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
Cir. 1993).    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
violation.    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.




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    Case: 14-20360    Document: 00513021393    Page: 3   Date Filed: 04/27/2015


                                No. 14-20360

      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.
1982).
      In view of the foregoing, the district court’s judgment is AFFIRMED.




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