                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-2584

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

M ICHAEL C ORNELIUS,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 06-CR-264—Rudolph T. Randa, Judge.



     A RGUED A PRIL 13, 2010—D ECIDED O CTOBER 15, 2010




 Before W ILLIAMS, S YKES, and T INDER, Circuit Judges.
  W ILLIAMS, Circuit Judge. In June 2005, Michael
Cornelius was charged in Wisconsin state court with
possession with intent to distribute a controlled sub-
stance. Two speedy trial demands and seven sched-
uled trial dates later, his state case was dismissed on
October 16, 2006. The very next day, Cornelius was in-
dicted federally for possession with intent to distribute
more than five grams of crack cocaine, beginning his
2                                              No. 09-2584

odyssey through the federal system. On March 11,
2009, after more delays and two more mistrials,
Cornelius moved to dismiss his indictment on Speedy
Trial Act, 18 U.S.C. § 3161 et seq., constitutional speedy
trial, and double jeopardy grounds. His speedy trial-
based claims were premised on the lengthy delays in the
government’s prosecution of the case against him. His
double jeopardy claim asserted that during his second
trial, the prosecutor had goaded him into moving for
a mistrial in order to rescue a case that was going badly
in order to get another shot at prosecuting him. The
district court denied Cornelius’s motion on constitu-
tional speedy trial and double jeopardy grounds,
but granted his motion under the Speedy Trial Act, dis-
missing the indictment without prejudice. Cornelius,
who was reindicted on June 23, 2009, appeals all three
aspects of the district court’s ruling. He appeals the
denial of his motion to dismiss on double jeopardy and
constitutional speedy trial grounds, and appeals the
dismissal on Speedy Trial Act grounds, arguing that the
dismissal should have been with prejudice, not without.
  We conclude that we lack jurisdiction to hear
Cornelius’s appeal of the district court’s speedy trial
rulings at this juncture because his prosecution contin-
ues. We do have jurisdiction to hear his double jeopardy
appeal, however, and we vacate the district court’s
ruling on that issue. We find that the district court erred
by not holding a evidentiary hearing before making a
determination as to whether the prosecutor intentionally
tried to trigger a mistrial, and remand so that such a
hearing can occur.
No. 09-2584                                            3

                  I. BACKGROUND
  On June 22, 2005, Milwaukee police, acting on infor-
mation from a confidential informant, arrested Cornelius,
a Latin Kings gang member, after pulling over the car
he was driving in a McDonald’s parking lot. Police
found a marijuana cigarette in the car’s ashtray and
approximately 6.67 grams of cocaine base in an area
under the dashboard where Cornelius had been ob-
served leaning forward as police approached. Also in
the car was Cornelius’s acquaintance, Baldomero Castillo,
another Latin Kings gang member. Later that day,
Castillo’s residence was searched pursuant to a search
warrant and additional cocaine was found. Police
also found a firearm, a scale, marijuana, and gang para-
phernalia on the premises. Cornelius was charged in
Milwaukee County Circuit Court with possession of a
controlled substance with intent to deliver. But after
more than a year, two speedy trial motions and seven
scheduled trial dates, his case was dismissed on
October 16, 2006.
  The next day, on October 17, 2006, Cornelius was in-
dicted federally for the same conduct, along with
Castillo. Count I of the indictment charged Cornelius
with possession with intent to distribute more than
five grams of crack cocaine (the cocaine found in the
automobile), in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). Count II charged Castillo with the same
offense, related to the drugs that had been found at
the residence.
4                                                    No. 09-2584

    A. The First Trial
  A jury trial began against both Cornelius and Castillo
on July 30, 2007. On the second day, a mistrial was de-
clared when a juror was observed dozing off during the
proceedings. Trial was rescheduled for October. In the
meantime, on August 7, 2007, the government filed a
superseding indictment (the “First Superseding Indict-
ment”). The First Superseding Indictment added a con-
spiracy charge against both men: the new Count I
charged Cornelius and Castillo with conspiring to dis-
tribute and possess with intent to distribute 50 grams or
more of crack cocaine, in violation of 21 U.S.C. § 846.
Count II charged them with possessing with intent to
distribute five or more grams of crack cocaine, in viola-
tion of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).1


    B. The Second Trial
 Cornelius and Castillo’s second jury trial began on
October 23, 2007. In order to implicate Cornelius on the


1
  Cornelius and Castillo moved to dismiss the First Superseding
Indictment on the basis of vindictive prosecution. On Septem-
ber 7, 2007, the magistrate judge found a colorable basis that
the superseding indictment was the result of prosecutorial
vindictiveness, see United States v. Cooper, 461 F.3d 850, 856 (7th
Cir. 2006), and granted the defendants’ requests to produce
grand jury transcripts and statements of cooperating witnesses.
The magistrate judge ultimately concluded that the facts of the
case did not indicate vindictiveness on the part of the govern-
ment, however, and recommended denying the motion to
dismiss. The district judge adopted that recommendation.
No. 09-2584                                                  5

new conspiracy charge, the government sought to intro-
duce testimony from Hugo Delportillo, another member
of the Latin Kings who supplied cocaine to Castillo.
Delportillo would testify, as he had in the grand jury,
that Castillo had told him that Cornelius had also
supplied Castillo with cocaine. Castillo’s statement,
through Delportillo, was essentially the government’s
only evidence against Cornelius on the conspiracy
charge—the government admitted that without it, the
charge would not survive a Rule 29 motion to dismiss.
  At trial, Cornelius informed the court that he intended
to impeach Castillo’s statement to Delportillo by intro-
ducing Castillo’s prior convictions pursuant to Federal
Rule of Evidence 806.2 Castillo had already informed
the court that he would not testify at trial, therefore his
prior convictions would have been inadmissible. As a
result, depending on how the court ruled, Delportillo’s
testimony would be prejudicial either to Castillo or to
Cornelius. If the convictions were let in, Castillo would
be prejudiced; if they were not allowed, Cornelius


2
  Rule 806 provides “[w]hen a hearsay statement, or a statement
defined in Rule 801(d)(2)(C), (D), or (E), has been admitted
in evidence, the credibility of the declarant may be attacked
and if attacked may be supported, by any evidence which
would be admissible for those purposes if declarant had
testified as a witness.” Castillo’s prior convictions would
be admissible under Rule 806 because his statement to
Delportillo regarding Cornelius being a supplier of cocaine
was a Rule 801(d)(2)(E) statement by a conspirator of a party
in furtherance of the conspiracy.
6                                               No. 09-2584

would be prejudiced by having been denied the ability
to impeach the declarant. The district judge took the
issue under advisement and indicated that it would
render a decision before Delportillo actually testified. A
jury was empaneled and sworn, and the trial commenced.
  On the third day of trial, when it was time for Delportillo
to take the stand, the district court revisited the issue
and ruled that Delportillo could testify, but not as to
anything that Castillo told him about Cornelius being a
supplier of cocaine. A brief recess was taken, during
which time the government represents that it explained
the ruling to Delportillo. The jury was then brought
in, Delportillo was sworn, and he began to give his testi-
mony. Delportillo testified that he was a member of the
Latin Kings and that he knew Castillo and Cornelius,
both of whom he identified in the courtroom. He
testified that he had supplied Castillo with cocaine on a
number of occasions, stating that he provided him with
“two ounces here and there.” The government pressed
further on the topic, and the following exchange occurred:
    GOVERNMENT: Do you know if Baldomero
    Castillo had other sources of cocaine besides you?
        CASTILLO’S COUNSEL: I’m going to
        object. That calls for speculation.
    GOVERNMENT: If you know.
        THE COURT: No. He may answer.
    GOVERNMENT: Do you know if Baldomero
    Castillo had—
No. 09-2584                                            7

       THE COURT: The question is whether or not
       there were—if he knows of any other sources.
   DELPORTILLO: If I knew where Baldo could get
   some?
   GOVERNMENT: You know any other people who
   were sources for cocaine for Baldomero Castillo?
       CORNELIUS’S COUNSEL: I’m going to object,
       your Honor. And I’m going to ask for a
       sidebar.
  Despite a question from the government that ap-
peared likely to elicit a response from Delportillo about
Cornelius being a source of supply to Castillo—testimony
the court had prohibited—the district judge denied
Cornelius’s objection and request for a sidebar, and
allowed questioning to continue. In so ruling, the
district judge stated “I assume the prosecutor knows the
question he is asking,” indicating that the court likely
assumed that the government could not actually be
seeking the prohibited answer from Delportillo. Ques-
tioning continued, and an exchange occurred that
triggered yet another mistrial and set into motion the
double jeopardy issue that is now before us:
   DELPORTILLO: What was the question again?
   GOVERNMENT: Do you know if Baldomero
   Castillo has any other sources and—had other
   sources in supply of cocaine besides you?
   DELPORTILLO: Yeah, Mike [Cornelius].
       CORNELIUS’S COUNSEL: Your Honor,
       I’m going to ask for a sidebar, please?
8                                               No. 09-2584

(Emphasis added). The jury was excused, and the fol-
lowing discussion took place:
    CORNELIUS’S COUNSEL: Judge, on behalf of
    Mr. Cornelius, I’m going to move this Court for a
    mistrial reserving my right to argue for dismissal.
    But I think at this point there—information that
    we went to what I consider to be extraordinary
    lengths to prevent the jury from hearing has
    been heard during the government’s questioning
    of the witness Mr. Delportillo.
    There has been no evidence of any conspiracy up
    to this point. The only source of Mr. Delportillo’s
    knowledge that Mr. Cornelius supplied any drugs
    to Mr. Castillo as we went over ad nauseum
    was Mr. Castillo’s purported statements to
    Mr. Delportillo.
    I have been given no other information that
    would permit any other conclusion that that is the
    source of Mr. Delportillo’s knowledge that Mike
    is Mr. Castillo’s source for cocaine. And so we
    are left in the unenviable position and one that
    I tried to avoid with as much dispatch as I am
    capable of. And my efforts notwithstanding,
    this jury has been polluted with this statement
    by this government witness that my client is the
    source of Mr. Castillo’s cocaine.
    ....
    And so there is—there is nothing that I can imagine
    can be done to cure the tremendous amount of
    prejudice that is occasioned by such a remark. . . .
No. 09-2584                                                 9

   the cat has been let out of the bag, to borrow a
   phrase from [government counsel] in that there
   is no way, out of fairness to Mr. Cornelius, that
   Mr. Cornelius can have a fair trial going forward.
   And having never been confronted with this
   issue before in my career . . . I would merely at this
   point reserve my right to dismiss—if the Court
   grants my motion for a mistrial . . . . I reserve the
   right to move for a dismissal in the event that the
   government attempts to reprosecute Mr. Cornelius.
  Castillo’s counsel joined in Cornelius’s request for
mistrial, and made the following comments highlighting
how strange it was for the government to even ask
Delportillo about other sources in light of the court’s
evidentiary ruling:
   CASTILLO’S COUNSEL: When we were at
   sidebar, the question came up, well, what was the
   relevance to ask this gentleman if there were any
   other sources of his—of his drugs and so forth
   when really there were only two people here. I
   mean the only—the only reasonable answer or
   rational answer would be that that testimony
   was being elicited to get to or get an answer that
   Michael [Cornelius] was the other individual. So
   I guess I’ll leave the Court with that.
 The prosecutor then advanced his explanation for
what had occurred:
   GOVERNMENT: Judge, I would ask that the
   testimony of—the last answer of Mr. Delportillo
10                                               No. 09-2584

     be struck as nonresponsive, ask that the Court
     give a curative instruction to the jury at this time.
     I do note that Mr. Delportillo was prepped previ-
     ously to give testimony consistent with his grand
     jury testimony. I did have—I took the opportunity,
     the bulk of the opportunity I asked for the Court—
     for—after the Court made its ruling was to go
     back and prep the witness and to make sure that
     he understood the parameters.
     And one of the preparatory questions was if some-
     body asks you what time it is, you answer yes or
     no. You don’t tell me what time it is. You wait
     for someone to ask you what time it is. And
     I thought my instructions were clear to him.
     Unfortunately, the question was asked do you
     know of any other sources. And he answered
     with the question—with the answer to that antici-
     pating what he thought maybe my next question
     was going to be but it wasn’t and answered that
     question. I think that the—a curative instruction
     and a motion to strike based on that testimony
     would be sufficient and the trial may proceed.
  The prosecutor then stated that without Delportillo’s
testimony about Cornelius, the conspiracy charge against
him would not survive a Rule 29 motion to dismiss,
effectively conceding that the testimony was the only
evidence the government had against Cornelius for that
particular count. Counsel for both Cornelius and Castillo
also stated their objections to the government’s proposal
for a motion to strike, arguing that the testimony
No. 09-2584                                              11

was simply too prejudicial. The district judge then
weighed in:
   THE COURT: Well, the Court issued a ruling
   relative to the testimony of Mr. Delportillo. And
   that was a ruling which, as we all know, brought
   into play competing rights. The Court is not going
   to rehash its reasoning or the reasoning that it
   supplied for those rules or that ruling.
   But the long and the short of it was that
   Mr. Delportillo could not use the information
   that he had garnered from Mr. Castillo about
   Mr. Cornelius’ involvement as a source of co-
   caine, provider of cocaine or user, whatever.
   And with that ruling, as we all know,
   Mr. Delportillo was briefed and counseled as
   [government counsel] has indicated. And when
   the question came up, are there any other or did
   Mr. Castillo have any other sources of cocaine,
   there was an objection and a request for sidebar.
   And the Court would have normally granted a
   sidebar in that case. So perhaps given the answer,
   the Court could be held responsible for that an-
   swer. But the question, did Mr. Castillo have
   any other sources of cocaine, after that counseling
   and briefing and consultation, in the Court’s
   mind, was so latent with danger that it was as-
   sumed by the Court that the counseled witness
   and directed witness would in no way, shape or
   form do what the government has now indicated
   he did.
12                                              No. 09-2584

     And that was to anticipate the answer to the
     logical next question. And the answer to the ques-
     tion, as [government counsel] said he counseled
     Mr. Delportillo on, was yes. But Mr. Delportillo
     went further. He said mentally of course, yes,
     Mike. Identifying—there’s only one Mike in this
     courtroom related to that testimony and that’s
     Mr. Cornelius.
   The court then rejected the prosecutor’s suggestion
that a motion to strike and limiting instruction was suf-
ficient to remedy the problem, and granted Cornelius’s
motion for a mistrial. The court denied the motion for
dismissal, however, reasoning that such a motion was
premature and should be addressed when and if the
government decided to retry Cornelius. After the
mistrial, the government moved to sever the two defen-
dants’ trials, presumably to avoid the problems it had
encountered in the second trial. The trials were severed
on March 7, 2008, and the government sought to try
Castillo first. Shortly thereafter, Castillo decided to plead
guilty and entered a plea on April 30, 2008. He was sen-
tenced on July 29, 2008.


  C. Cornelius’s Motion to Dismiss
  Following the mistrial and severance, nothing tran-
spired in the case against Cornelius for nearly a year. The
parties blame each other for this, but the result was
that nothing occurred until February 24, 2009, when the
district judge referred Cornelius’s case to a magistrate
No. 09-2584                                                  13

judge.3 Cornelius then moved to dismiss the super-
seding indictment against him on three grounds. First,
relying on the rule announced in Oregon v. Kennedy, 456
U.S. 667, 679 (1982), Cornelius argued that re-prosecuting
him violated his Fifth Amendment right to be free
from double jeopardy, because the government had
intentionally provoked him into moving for a mistrial by
questioning Delportillo as it had. Cornelius requested
an evidentiary hearing in connection with his double
jeopardy claim, in order “to determine the government’s
intent” in asking Delportillo the question that it did, and
to learn precisely what instructions the government
gave to Delportillo before his testimony. Cornelius
argued that an evidentiary hearing was necessary
because depending on the testimony that was elicited, the
court “could conclude that the government engaged
in conduct designed to provoke the mistrial.” Second,
Cornelius claimed that the numerous delays in his pros-
ecution violated the Speedy Trial Act, 18 U.S.C. § 3161
et seq. Finally, Cornelius asserted that his prosecution
violated his Sixth Amendment-based right to a speedy
trial for the same reasons.
   The government responded in its brief that it was not
its intent to trigger a mistrial through its questioning,
and blamed the offending “Yeah, Mike” answer on


3
   Because we do not reach the merits of Cornelius’s constitu-
tional or statutory speedy trial-based appeals, see infra, we do
not set out the details of the fits and starts of Cornelius’s
prosecution, but we note that the district court concluded
that the blame for much of the delay falls with the government.
14                                          No. 09-2584

Delportillo. The government claimed that Delportillo
had been instructed not to testify about conversations
with Castillo about Cornelius, but did so anyway after
becoming “confused by several objections and rulings
prior to answering the question.” With regard to why
the question about other sources was asked at all, the
government claimed it was in order to “argue by
inference in closing argument that Mr. Castillo and
Mr. Cornelius were working together.” The government
argued that it gained no strategic advantage from
the mistrial, and claimed that the trial was not going
badly for it at the time that Delportillo testified. The
government asked the court to “accept the govern-
ment’s explanation without the need for an evidentiary
hearing.” Cornelius countered in his reply brief that
the government would gain a “tremendous strategic
advantage” by re-trying Cornelius after the mistrial.
Following its successful motion to sever Cornelius and
Castillo, the government would be able to introduce the
previously inadmissible testimony from Delportillo
regarding Castillo’s statement.
  On April 3, 2009, the magistrate judge issued his
report and recommendation on Cornelius’s motion to
dismiss, which set forth the basis for the decision that
Cornelius appeals here. The magistrate recommended
denying dismissal on double jeopardy grounds, finding
that the objective facts and circumstances did not in-
dicate that the government had intentionally engaged
in actions to goad Cornelius into moving for a mistrial.
The magistrate denied Cornelius’s request for an evi-
dentiary hearing, noting that Cornelius had failed to
No. 09-2584                                                  15

comply with a local criminal rule in requesting it,4 and
that one was not required in any event because a deter-
mination could be made in this case based on the
objective facts and circumstances. See Kennedy, 456 U.S.
at 675. The magistrate judge found that while the
case was “clearly . . . going badly for the government”
after the court issued its evidentiary ruling limiting
Delportillo’s testimony, it appeared that Delportillo’s
answer was a spontaneous one that was not in response
to any inappropriate question. The magistrate reasoned
that the government’s literal question—“Do you know
if Baldomero Castillo . . . had other sources in
supply of cocaine besides you?”—was a yes-or-no ques-
tion, and that it was Delportillo who went beyond
the scope of the question by answering “Yeah, Mike.”
Notably, the magistrate did not address the question of
why the prosecutor asked the question in the first place.
The magistrate further noted that the prosecutor re-
quested a curative instruction, indicating that the gov-


4
   Eastern District of Wisconsin Criminal Local Rule 12.3 states
that a party requesting an evidentiary hearing must provide a
short, plain statement of the issue and grounds for relief, and
after conferring with the nonmovant, describe the disputed
facts at issue that the movant believes warrant a hearing.
Cornelius requested an evidentiary hearing in his motion to
dismiss, but judging from the magistrate’s conclusion, did not
follow through on all of Local Rule 12.3’s requirements.
The government made no mention of Rule 12.3 in its opposi-
tion to the motion to dismiss, instead arguing that a hearing
was not necessary and requesting “that the motion for an
evidentiary hearing be denied.”
16                                             No. 09-2584

ernment was “content to lose on the conspiracy charge.”
Based on this, the magistrate concluded that after re-
viewing the record, he was “unable to say that there is
evidence sufficient to permit a conclusion that the
events that led to Cornelius requesting a mistrial
were intentionally orchestrated by the government to
provoke that result.”
  The magistrate then addressed Cornelius’s motion to
dismiss on Speedy Trial Act grounds. The magistrate
engaged in a thorough examination of the long history
of Cornelius’s prosecution and found that the delay
between the date he and Castillo were severed and the
date that Cornelius moved to dismiss the indictment—436
days, or 366 days beyond the 70-day deadline, 18 U.S.C.
§ 3161(e)—constituted a “clear violation” of the Speedy
Trial Act warranting dismissal of the indictment. The
magistrate then turned to the question of whether the
dismissal should be with or without prejudice. See 18
U.S.C. § 3162(a)(2) (setting forth factors to be considered
in that determination). He found that the seriousness of
the charges against Cornelius weighed in favor of a
dismissal without prejudice. The magistrate also found
while “extraordinary negligence” led to the “inexcusable
and exceptional” delay, he saw no evidence of bad faith
on the part of the government. He concluded there
was “sufficient neglect on all sides,” also weighing in
favor of a dismissal without prejudice. The magistrate
also observed that during the nearly 2½ years that
federal charges had been pending against Cornelius, he
had been free on bond and had presented no evidence
No. 09-2584                                              17

that he was prejudiced as a result of the delay. Taking all
of these factors together, the magistrate recommended
that while the question was a close call, the dismissal
should be without prejudice.
  The magistrate judge then turned to Cornelius’s final
basis for his motion, violation of his Sixth Amendment-
based right to a speedy trial. The magistrate examined
the four factors relevant to that inquiry: the length of the
delay, whether the government was more to blame for
the delay, whether Cornelius had asserted his speedy
trial right, and whether there was prejudice because of
the delay. See United States v. Wanigasinghe, 545 F.3d 595,
597 (7th Cir. 2008). Examining these factors, the mag-
istrate concluded that Cornelius’s constitutional right to
a speedy trial had not been violated. The magistrate
reasoned that while the 2½-year delay was clearly
lengthy and largely attributable to inaction by the gov-
ernment, Cornelius had for his part not regularly de-
manded a speedy trial during that time and had not
demonstrated sufficient prejudice from the delay. The
magistrate recommended denying Cornelius’s motion
to dismiss on this ground.
  Cornelius filed timely written objections to the magis-
trate’s recommendation. Cornelius reiterated his request
for an evidentiary hearing, arguing that a hearing was
necessary in order to learn what exactly the govern-
ment told Delportillo before he took the stand. On June 16,
2009, the district court adopted the magistrate judge’s
recommendations and reasoning supporting the recom-
mendations, and dismissed the indictment against
18                                                 No. 09-2584

Cornelius without prejudice pursuant to the Speedy
Trial Act. Cornelius timely appealed.5


                       II. ANALYSIS
  Cornelius appeals the district court’s ruling on his
motion to dismiss, challenging denial of his motion
on double jeopardy and constitutional speedy trial
grounds, and arguing that the Speedy Trial Act dismissal
should have been with prejudice, not without.
  We address Cornelius’s statutory and constitutional
speedy trial claims first, since we lack jurisdiction
to hear those arguments. As to Cornelius’s double
jeopardy claim, we vacate the district court’s ruling and
remand with instructions to hold an evidentiary hearing
to engage in a more thorough analysis of the facts sur-



5
  The day after Cornelius appealed, the government indicted
him for a third time. The new indictment (which is the one
Cornelius currently faces and is not the subject of this ap-
peal) includes the two counts from the First Superseding
Indictment, but adds a new count charging him with being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). That count alleges that Cornelius possessed a
weapon “on or about February 11, 2007”—which we note is
a date six months before the government filed the previous
indictment against Cornelius. Unless the government was
unaware of the facts predicating the gun charge until much
later, or would have been unable to prove up the charge at the
time it filed the First Superseding Indictment, it strikes us as
somewhat odd that the charge was not added until now.
No. 09-2584                                                 19

rounding what the prosecutor’s intent was in his ques-
tioning of Delportillo. We do not believe that the circum-
stances of what occurred during the trial, or the govern-
ment’s informal explanation, without a such hearing,
support the conclusion that the district court reached
and that an evidentiary hearing is necessary. The govern-
ment’s explanation raises as many questions for us as
it answers, questions that an evidentiary hearing can
address.


  A. Cornelius’s Constitutional and Statutory Speedy
     Trial Claims
  We lack subject matter jurisdiction to hear Cornelius’s
appeals of the district court’s rulings on his constitu-
tional and statutory speedy trial claims, because his
prosecution is ongoing. Neither ruling is currently a
final decision appealable under 28 U.S.C. § 1291, nor does
either fit within the collateral order doctrine. See
generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541
(1949).
  First, Cornelius cannot appeal the district court’s ruling
on his Sixth Amendment-based speedy trial claim at
this time, because a pretrial order denying a motion to
dismiss on Sixth Amendment speedy trial grounds
does not constitute a final decision appealable before
final judgment is entered. United States v. MacDonald,
435 U.S. 850, 856-57 (1978); see also United States v. Daniels,
848 F.2d 758, 759 (7th Cir. 1988). Cornelius argues that
the fact that the government has filed a third indict-
ment somehow changes this analysis, but it does not. In
20                                               No. 09-2584

Parr v. United States, 351 U.S. 513, 517 (1953), the
Supreme Court held that the issuance of a subsequent
indictment does not convert a dismissal order on the
prior indictment into a final decision, because the pros-
ecution is ongoing. The Court held that “[f]inal judg-
ment in a criminal case means sentence. The sentence is
the judgment.” Id. at 518. This reasoning applies here.
Cornelius must wait until final judgment is entered in
his case before he can appeal this portion of the district
court’s ruling.
   Nor can Cornelius raise an interlocutory appeal of
the district court’s ruling that his Speedy Trial Act dis-
missal be without prejudice. While we have not squarely
addressed the question ourselves, many other circuits
have held that dismissal of an indictment without preju-
dice under the Speedy Trial Act is not immediately
appealable. See, e.g., United States v. Reale, 834 F.2d 281,
282 (2d Cir. 1987); United States v. Kuper, 522 F.3d 302, 303-
04 (3d Cir. 2008); United States v. Jones, 887 F.2d 492, 493
n.2 (4th Cir. 1989); United States v. Stephens, 511 F.3d
492, 493 (5th Cir. 2007) (per curiam); United States v.
Bratcher, 833 F.2d 69, 72 (6th Cir. 1987); United States v.
Holub, 944 F.2d 441, 442 (8th Cir. 1991); United States v.
Ford, 961 F.2d 150, 151 (9th Cir. 1992) (per curiam); United
States v. Tsosie, 966 F.2d 1357, 1361-62 (10th Cir. 1992);
United States v. Kelley, 849 F.2d 1395, 1397 (11th Cir. 1988).
While it “may seem inefficient” not to allow Cornelius
to appeal a Speedy Trial Act ruling at this juncture when
it could “potentially result in a dismissal of the indict-
ment and avoidance of trial,” United States v. Montoya,
827 F.2d 143, 147 n.2 (7th Cir. 1987), such a ruling
No. 09-2584                                             21

does not constitute a final decision within the meaning
of 28 U.S.C. § 1291, nor does it fit within the collateral
order doctrine. See, e.g., Kuper, 522 F.3d at 303; Tsosie,
966 F.2d at 1361-62. We join our sister circuits and hold
that a ruling on a motion to dismiss under the Speedy
Trial Act is not final decision that can be appealed on
an interlocutory basis.


 B. Double Jeopardy
  Cornelius also appeals the district court’s denial of his
motion to dismiss on double jeopardy grounds. Unlike
the statutory and constitutional speedy trial rulings, the
district court’s double jeopardy ruling is immediately
reviewable, and we therefore have jurisdiction over
this aspect of Cornelius’s appeal. Abney v. United States,
431 U.S. 651, 662 (1977); United States v. Asher, 96 F.3d
270, 272 (7th Cir. 1996).
  Cornelius challenges the district court’s conclusion
that the government did not intend to provoke him into
moving for a mistrial through its questioning of Hugo
Delportillo. He characterizes the government’s question
to Delportillo about other sources of cocaine as a “mean-
ingless, but dangerous” one in light of the evidentiary
ruling the district court had issued. He argues that once
the district court ruled that Delportillo could not testify
about Castillo’s statement that Cornelius was a source
of cocaine, the government realized its conspiracy case
against Cornelius would not survive a Rule 29 motion
to dismiss. In Cornelius’s version of events, the govern-
ment, which had extensively prepared Delportillo to
22                                              No. 09-2584

testify that Castillo had identified Cornelius as a
source, still proceeded to ask him the “needless” question
in order to provoke the offending response that would
predicate a mistrial. Cornelius argues that in light of the
court’s ruling, there was simply no reason for the gov-
ernment to ask Delportillo whether he knew if Castillo
had other sources of cocaine.
  The government argues that the facts and circum-
stances show there was no intent on the part of the prose-
cutor to trigger a mistrial. Like it did before the
district court, the government pins the blame on
Delportillo. The government points out that the literal
question the prosecutor asked was a yes-or-no one, and
claims that it was only due to Delportillo’s confusion
that he “went beyond” the scope of the question and
identified Cornelius. At one point in its brief the gov-
ernment concedes that “perhaps in hindsight the pros-
ecutor should have . . . not asked the question at all,” but
argues nonetheless that the question was warranted
because the government wanted to argue “by inference”
that Castillo and Cornelius were working together.
The government asserts that it had no reason to try
and orchestrate a mistrial because its case was not
going badly, and that it was content to proceed and try to
prevail on only the possession count against Cornelius.
  We review the district court’s double jeopardy
ruling de novo, but defer to the district court’s factual
findings. United States v. Gilmore, 454 F.3d 725, 729 (7th
Cir. 2006); United States v. Ray, 238 F.3d 828, 835 (7th Cir.
2001). We review the district court’s decision not to
No. 09-2584                                              23

grant an evidentiary hearing for abuse of discretion. See
United States v. Anderson, 288 F.3d 335, 337 (7th Cir.
2002); see United States v. Tafoya, 557 F.3d 1121, 1128
(10th Cir. 2009).


      1.   The Double Jeopardy Clause and the Oregon v.
           Kennedy Rule
  The Double Jeopardy Clause of the Fifth Amendment
to the United States Constitution provides that no person
shall “be subject for the same offense to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V. It
protects a defendant against repeated prosecutions or
multiple punishments for the same offense. United States
v. Dinitz, 424 U.S. 600, 606 (1976). “One of the main
and most-frequently cited rationales behind the protec-
tions in the Double Jeopardy Clause is that a defendant
has the right to have his trial completed by the first
jury empaneled to try him.” United States v. Doyle, 121
F.3d 1078, 1083-84 (7th Cir. 1997). The Double Jeopardy
Clause generally does not bar retrial, however, when a
mistrial has been granted at the request of the defendant.
Id. at 1084; United States v. Higgins, 75 F.3d 332, 333 (7th
Cir. 1996) (“Defendants who request a mistrial . . . may
not use the double jeopardy clause to avoid a second
trial.”).
  In Oregon v. Kennedy, the Supreme Court announced
an exception to this general rule, holding that double
jeopardy does bar reprosecution if the government has
engaged in conduct giving rise to the mistrial request that
24                                               No. 09-2584

was “intended to provoke the defendant into moving for
a mistrial.” 456 U.S. at 679. If the government has done
so, “the Constitution treats matters as if the mistrial
had been declared on the prosecutor’s initiative” and
retrial is barred. Higgins, 75 F.3d at 333. We have inter-
preted the Kennedy rule in our circuit as follows:
     If after a criminal trial begins the government
     decides that the case is going badly for it, it
     cannot dismiss the case and reprosecute the de-
     fendant. Nor is it permitted to achieve by indirec-
     tion what it is not permitted to do directly; and
     thus it cannot engage in trial misconduct that is
     intended to and does precipitate a successful
     motion for mistrial by the defendant.
United States v. Oseni, 996 F.2d 186, 187-88 (7th Cir. 1993);
see also Gilmore, 454 F.3d at 729 (“The key question is
whether the prosecutor deliberately introduced the error
in order to provoke the defendant into moving for a
mistrial, and thereby rescuing a trial going badly.”).
  The requirement that the prosecutor specifically
intended to trigger a mistrial is critical. Oseni, 996 F.2d at
188. We have held that Kennedy does not bar retrial if
the government simply “blunders at trial and the
blunder precipitates a successful motion for mistrial.” Id.
Instead, the prosecutor must be specifically “trying to
abort the trial” through his or her conduct. Id. “It doesn’t
even matter that [the prosecutor] knows he is acting
improperly, provided that his aim is to get a conviction.
The only relevant intent is intent to terminate the trial,
No. 09-2584                                               25

not intent to prevail at this trial by impermissible means.”
Id. (internal citations omitted); see also Doyle, 121 F.3d
at 1086 (“[I]n this Circuit, all that bars a retrial under
Kennedy is the prosecution’s intent to abort the trial.”).
  A court can conduct an evidentiary hearing in order
to determine a prosecutor’s intent behind an action that
precipitated a mistrial, but it is not a requirement. See
Gilmore, 454 F.3d at 730; see also Higgins, 75 F.3d at 333
(in case where DEA agent witness inappropriately refer-
enced a defendant’s actions after being Mirandized,
district court took testimony from agent to determine
if his statements had been designed to provoke a
mistrial request). A court can “infer[] the existence or
nonexistence of intent from objective facts and circum-
stances” in situations where it is appropriate to do
so. Kennedy, 456 U.S. at 675. If a prosecutor advances a
plausible explanation for the action that caused the mis-
trial, and the trial had been going well for the govern-
ment at the time the action occurred, a judge can accept
the prosecutor’s explanation without holding an eviden-
tiary hearing. Oseni, 996 F.2d at 188; see also United States
v. Jozwiak, 954 F.2d 458, 460 (7th Cir. 1992). But, “[i]f
the judge is not, or a reasonable judge would not
be, satisfied with the prosecutor’s explanation, an eviden-
tiary hearing is in order.” Oseni, 996 F.2d at 189; see also
Gilmore, 454 F.3d at 730 (“[T]he evidentiary hearing
serves as a backstop . . . if . . . a reasonable judge would
not be[] satisfied with the prosecutor’s explanation.”).
26                                                No. 09-2584

     2. Remand for an Evidentiary Hearing
  The district court reached its conclusion that the gov-
ernment had not intended to cause a mistrial without
holding an evidentiary hearing, relying instead on the
prosecutor’s explanation for his action and the objective
facts and circumstances. 6 We are troubled by the court’s
decision to do so, because we believe that the facts
and circumstances of what occurred are too strange, and
the government’s explanation too lacking, to allow for
a proper determination of the prosecutor’s intent based
on inference alone. Given the district court’s clear
ruling that Delportillo could not testify as to Castillo’s
reference to Cornelius, the prosecutor’s question—“Do
you know if Baldomero Castillo . . . had other sources in
supply of cocaine besides you?”—raises questions about
the prosecutor’s intent that have not been satisfactorily
answered. We conclude that an evidentiary hearing
should have been conducted before a determination was
made regarding the government’s intent. See Oseni,
996 F.2d at 189.


6
  A wrinkle in this case is that it was the magistrate judge,
who was not present at the trial, who actually engaged in the
analysis regarding the prosecutor’s intent for the purposes of
Cornelius’s motion to dismiss. Much like we are doing today,
he did so based on pleadings filed by the parties, and by
reviewing the trial transcript. The district court adopted
those findings wholesale later, in a one-page written order.
This is in contrast to a situation in which the district judge,
who was present during the events at issue, would be the
one articulating the reasoning for the ruling.
No. 09-2584                                              27

  The explanations given by government simply do not
put to rest the questions regarding the prosecutor’s
intent in asking a question that, if not intended to
violate the judge’s evidentiary ruling, seemed at a mini-
mum incredibly likely to do so. The question about
other sources of cocaine was, as the district court itself
described it, “latent with danger.” The government
blames Delportillo for the offending answer, arguing
that the question he was asked was technically a yes-or-
no answer, and that it was his fault for going beyond
the scope of the question and answering “Yeah, Mike.”
This explanation is unsatisfactory. Whether or not the
witness went beyond answering a literal yes-or-no ques-
tion misses the point—why did the prosecutor ask the
question in the first place? Yes-or-no format or not, we
are at a loss to understand why the government asked
the question that it did in light of the court’s evidentiary
ruling. In his grand jury testimony, Delportillo identified
only one other source of cocaine for Castillo besides
himself—Michael Cornelius. The government knew this.
So to then begin a line of questioning about “other”
sources, knowing that Cornelius was the only possible
answer, strikes us as bizarre.
  At sidebar, the prosecutor stated that Delportillo was
incorrectly “anticipating what he thought my next
question was going to be but it wasn’t and answered
that question.” But what possible permissible question
could have come next? If Cornelius was the only other
supplier for Castillo of which Delportillo was aware,
why ask about “other suppliers” at all? The lone explana-
tion the government has offered for why the prosecutor
28                                            No. 09-2584

asked the question—in order to be able to “argue
by inference” at closing argument that “Castillo and
Cornelius were working together”—is not satisfactory.
The question could not have led to a permissible
answer that would have supported such an inference.
Prosecutors may argue reasonable inferences from the
evidence that the jury has heard, but cannot “infuse
their closing arguments with facts that the court has not
admitted into evidence.” United States v. Saadeh, 61
F.3d 510, 521 (7th Cir. 1995); see also United States v.
Klebig, 600 F.3d 700, 718 (7th Cir. 2009). Had Delportillo
actually just answered “yes” to the question of whether
he knew if Castillo had other sources of cocaine, the
way the government says he should have, and had the
exchange stopped there (which it would have had to),
that answer alone would not have supported a rea-
sonable inference at closing that Cornelius and Castillo
were coconspirators. See United States v. Waldemer, 50
F.3d 1379, 1384 (7th Cir. 1995) (to be a reasonable infer-
ence, evidence must “bear [a] logical and proximate
connection to the point the prosecutor wishes to prove.”).
The government’s explanation does not hold water.
An evidentiary hearing will allow the district court to
hear a more thorough explanation of why the govern-
ment asked the question that it did in light of the
court’s evidentiary ruling.
  The government represents that it explained the scope
of the ruling to Delportillo during a brief recess before
he testified, but we do not know any details about what
that explanation actually was, either from the prose-
No. 09-2584                                                  29

cutor or from Delportillo. 7 An evidentiary hearing will
also provide an opportunity for the prosecutor, and
Delportillo himself, to explain what the instructions
actually were. See Oseni, 996 F.2d at 189 (remanding
for further hearing for explanation from witness
regarding her testimony).
  The government also argues that its case was going
well, meaning there was no “trial going badly” it would
want to try and abort in the first place. See Higgins, 75
F.3d at 333. We disagree with this characterization. The
district court itself found that things were “clearly . . .
going badly for the government” and we agree with
that conclusion. The only evidence that the government
had to support its conspiracy count against Cornelius
appears to be Delportillo’s testimony about Castillo’s
statement. The prosecutor conceded during the trial that
without Delportillo’s testimony about Cornelius, the
conspiracy charge against him could not survive a
Rule 29 motion to dismiss. Thus, once the district judge
made his ruling limiting the scope of Delportillo’s testi-
mony, the government must have immediately realized
it could not prevail against Cornelius on the more
serious of the two counts against him.


7
   An approach that might have been helpful would have
been for the court to have examined Delportillo before he
took the stand, outside the presence of the jury, to ensure that
he had a clear understanding of what he could not say. In
addition, the court could have instructed Delportillo to ask
for a sidebar if he became confused during his testimony, or
if he felt that answering a question honestly would require
him to discuss something that was prohibited.
30                                              No. 09-2584

  It is true that the government opposed Cornelius’s
request for a mistrial, and instead sought a limiting
instruction to the jury. This obviously mitigates in favor
of a finding that the government was not trying obtain a
mistrial. See Gilmore, 454 F.3d at 730 (noting that govern-
ment opposed motion for mistrial and instead sought
limiting instruction). At the same time, however, the
prosecutor may have known full well that the alternative
he offered would be wholly unacceptable to Cornelius.
As Cornelius’s counsel stated after the offending testi-
mony, “there is nothing that I can imagine that can be
done to cure the tremendous amount of prejudice that
is occasioned by such a remark . . . . [T]he cat has been
let out of the bag.” While the fact that the government
opposed the mistrial is clearly significant, that alone
does not automatically obviate all concerns about the
government’s motivations regarding what it did with
Delportillo. It cannot be the case that the government’s
opposition to a mistrial can per se negate any inference
of intent to goad the defense into moving for one. If
that were so, the government could simply object to a
mistrial, present an option it knew to be untenable to
the other side (and likely to be rejected by the judge), and
thus inoculate itself from accusations of Kennedy-style
intent in every case. So while we agree that the prosecu-
tor’s opposition to the mistrial motion is a significant
factor, we still feel that in this particular case, an evi-
dentiary hearing should have been held to air out
these issues in a meaningful way.
  We have previously remanded a case to the district
court when we felt that more information should have
No. 09-2584                                            31

been developed regarding the prosecutor’s intent in a
case involving the Kennedy rule. In Oseni, just like here,
a government witness gave an answer to a question
that precipitated the defendant’s request for a mistrial,
and there were questions as to whether it was the gov-
ernment’s intent to trigger that request. 996 F.2d at 187-
88. The defendant, charged with a drug offense, asserted
a defense that while he may have appeared to have
been participating in the charged conspiracy, he was
actually reporting what was going on to authorities by
making telephone calls to 911. Id. at 187. To rebut
this defense, the government called to the stand a pros-
ecutor that had met with the defendant and his attor-
ney three times prior to trial. Id. Asked whether the
defendant had mentioned calling 911 during one of
those meetings, she answered that he had done so only
during the third meeting, but then went further and
volunteered that the defendant’s own lawyer had told
her he did not believe the 911 story. Id. The defendant
immediately objected and moved for a mistrial, which
the court granted, because the offending testimony was—
again, similar to the “Yeah, Mike” answer here—“so
inherently prejudicial that no cautionary instruction or
striking the evidence can remedy it.” Id. The defendant
then moved for acquittal on double jeopardy grounds,
invoking the Kennedy rule, and asked for an evidentiary
hearing. Id. at 188. The district judge denied the eviden-
tiary hearing, concluding that she was satisfied that
the prosecutor doing the questioning had been acting
in good faith. Id. On appeal, we expressed concern with
the fact that the district court “did not even elicit an
32                                             No. 09-2584

explanation” from the testifying prosecutor before
reaching her conclusion, and remanded for further pro-
ceedings where the district judge could obtain an ex-
planation from the witness, and, if necessary, conduct
an evidentiary hearing. Id. at 189. A similar remand is
in order here.
  There are other cases where we have not disturbed
the district court’s decision not to hold an evidentiary
hearing following a mistrial, but they involved circum-
stances that were less troubling, and more easily ex-
plained, than what occurred here. In United States v.
Jozwiak, a young prosecutor in his first trial made an
erroneous reference in opening statements to the fact
that four of the trial defendants’ codefendants had
already pled guilty. 954 F.2d at 459. And in United States
v. Gilmore, the prosecutor made references to the defen-
dant’s incarceration during a 90-minute opening state-
ment, despite a ruling in limine that such references
were impermissible. 454 F.3d at 728-29. In both of these
situations, the explanations proffered by the prosecutors
for the offending actions were more satisfactory than
those advanced by the government in this case. In
Gilmore, the prosecutor explained to the court that the
references to the defendant’s incarceration were inad-
vertent, and that he had “made a mistake.” 454 F.3d at 728.
This explanation made sense, given that some of the
defendants actions in prison were “central to the story”
of the charged conspiracy. Id. And in Jozwiak, a senior
prosecutor “confessed error and apologized” for the
rookie lawyer’s mistaken reference to the fact that other
defendants had pled guilty. 954 F.3d at 459. And unlike
No. 09-2584                                                33

here, there were no indications that the cases were
going badly for the government; in both cases, the trial
had just commenced. In Jozwiak, for example, in contrast
to what the judge observed here, the district court
noted that “[t]his certainly was not a situation where a
case was going poorly for the government motivating it
to create a mistrial situation.” Id. at 460. And as we
noted on appeal in Jozwiak, “[t]he prosecutor’s case . . . was
not going downhill; it was not going, period. It ended
within minutes after the prosecutor rose to speak.” Id.
(emphasis in original).
  The circumstances here, in contrast, are simply more
troubling and raise more questions than those in Jozwiak
or Gilmore. Whereas those cases involved what appeared
to be “blunders”, Oseni, 996 F.2d at 188, here there are
more serious questions about the government’s intent
given the timing and circumstances of what occurred. As
we did in Oseni, we conclude that further explanation
and investigation is needed before reaching a firm con-
clusion on the prosecutor’s intent.
  We stress the limited scope of our ruling. We express
no opinion on whether it was in fact the prosecutor’s
intent to provoke Cornelius into moving for a mistrial
in asking the question that he did, and our opinion
should not be taken to be a conclusion either way
on that ultimate issue. We simply hold that the circum-
stances were troubling enough, and the government’s
explanation unsatisfactory enough, that it was not rea-
sonable for the district judge to have reached a conclu-
sion without an evidentiary hearing. See Oseni, 996 F.2d
34                                              No. 09-2584

at 189. This is a case where the “backstop” of an eviden-
tiary hearing was necessary. Gilmore, 454 F.3d at 730.


                   III. CONCLUSION
  We V ACATE the district court’s double jeopardy ruling
and R EMAND to the district court with instructions to
hold an evidentiary hearing. While the exact contours
of such a hearing will be up to the district court to deter-
mine, we would expect it to involve testimony from at
least the prosecutor and Delportillo.




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