                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3300
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Albert Curry,                            *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 11, 2003

                                   Filed: May 6, 2003
                                    ___________

Before WOLLMAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       Albert Curry was indicted on one count of sexual abuse in violation of 18
U.S.C. §§ 1153 and 2242. At the close of the government’s case in chief, Curry
moved for a mistrial, citing prosecutorial misconduct. The district court1 reserved
ruling on the motion. After the jury found him guilty, Curry again moved for a
mistrial and for a new trial, alleging additional incidents of prosecutorial misconduct.
The district court granted the motions. Shortly before his second trial was scheduled

      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
to commence, Curry moved to dismiss the indictment on double jeopardy grounds.
The district court denied the motion, and we affirm.

       “As a general matter, a district court’s order denying a defendant’s motion to
dismiss on double jeopardy grounds is a ‘final decision’ and [is] appealable under 28
U.S.C. § 1291.” United States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995) (citing
Abney v. United States, 431 U.S. 651 (1977)). We have stated, however, that such
an order is appealable “only if a colorable claim is made.” United States v. Grabinski,
674 F.2d 677, 678 (8th Cir. 1982) (en banc) (per curiam). “A colorable claim
requires a showing of previous jeopardy and the threat of repeated jeopardy.” United
States v. Abboud, 273 F.3d 763, 766 (8th Cir. 2001) (citing Grabinski, 674 F.2d at
679). To aid our review, we have asked district courts, “as a matter of practice
whenever a motion to dismiss an indictment on double jeopardy grounds is denied,
to make written findings on the issue of whether the motion is frivolous or non-
frivolous.” United States v. Dixon, 913 F.2d 1305, 1309 (8th Cir. 1990) (citing
Grabinski, 674 F.2d at 679). If the district court finds the defendant’s motion to be
frivolous, the filing of a notice of appeal will not divest the district court of
jurisdiction, and we will then review the appeal on an expedited schedule. Grabinski,
674 F.2d at 679.

      We see nothing in the record indicating that the district court entered a written
finding as to whether Curry’s double jeopardy motion was frivolous. The record,
however, does demonstrate that jeopardy attached in the first trial. “[J]eopardy
attaches when a jury is empaneled and sworn, or, in a bench trial, when the judge
begins to receive evidence.” Dixon, 913 F.2d at 1309 (alteration in original) (quoting
United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977)); see also Kress,
58 F.3d at 373 (rejecting government’s claim that the lack of a specific written
finding by district court as to frivolousness divests appellate court’s jurisdiction). We
are therefore satisfied that Curry has alleged a colorable double jeopardy claim.



                                          -2-
Accordingly, we have jurisdiction to review the merits of this claim. See Dixon, 913
F.2d at 1309; Grabinski, 674 F.2d 680.

       “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). “The double jeopardy doctrine, however,
does not prevent all retrials after jeopardy attaches.” United States v. Givens, 88 F.3d
608, 611 (8th Cir. 1996). When a defendant moves for a mistrial, the doctrine does
not bar retrial unless the prosecutor intentionally engaged in conduct designed to
provoke the defendant’s motion. United States v. Washington, 198 F.3d 721, 724
(8th Cir. 1999); Kennedy, 456 U.S. at 673-76. Thus, “[a]bsent intent to provoke a
mistrial, a prosecutor’s error in questioning a witness, improper remark in a closing
statement, and even extensive misconduct do not prevent reprosecution.” United
States v. Beeks, 266 F.3d 880, 882 (8th Cir. 2001) (per curiam) (citations omitted).

      In granting Curry’s motion for a mistrial, the district court identified three
instances of prosecutorial misconduct. The court first found that the prosecutor
improperly withheld material impeachment evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). See United States v. Nelson, 970 F.2d 439, 442 (8th
Cir. 1992) (“Brady requires disclosure of all material evidence favorable to the
accused, whether impeachment or exculpatory evidence, in the possession of the
United States.”). The court then determined that the prosecutor had made two
improper and prejudicial comments during closing argument. Noting that the
government’s case was “not overwhelming,” the court concluded that a new trial was
warranted.

      In denying Curry’s motion to dismiss the indictment, the district court first
considered the Brady violation. Citing our decision in United States v. Washington,
198 F.3d 721, 725 (8th Cir. 1999), the court found that “it [was] highly unlikely that
the government created the pretrial discovery error to halt a trial that was not going

                                          -3-
well.” The court also found that the prosecutor’s improper remarks during closing
argument showed no intent to provoke a mistrial, as “[t]his [was] not a case . . . that
was progressing badly for the government,” and “[t]he government had no reason to
believe that the evidence would improve in a second trial.” The court therefore
concluded that because the prosecutor did not engage in misconduct with the intent
to “goad” Curry into moving for a mistrial, the Double Jeopardy Clause did not bar
a retrial. See Kennedy, 456 U.S. at 676.

       Despite Curry’s suggestion to the contrary, “[w]e will uphold the district
court’s finding of prosecutorial intent unless clearly erroneous.” Washington, 198
F.3d at 724 (citation omitted); see Beeks, 266 F.3d at 883. While acknowledging that
the Brady violation, alone, may not be sufficient to demonstrate improper
prosecutorial intent, Curry contends that this violation “was one part of a larger
pattern of misconduct that should [be] considered as a whole.” Curry also contends
that the district court erred by failing to consider “the advantages that the government
would have in a second trial,” including the government’s opportunity to introduce
additional Rule 413 evidence. See Fed. R. Evid. 413 (providing that in criminal
sexual assault cases, “evidence of the defendant’s commission of another offense or
offenses of sexual assault is admissible”); see also Dkt. Report at 71-76
(government’s notices pursuant to Rule 413). According to Curry, the government
knew prior to his first trial that “other Rule 413 allegations were being investigated
and may be forthcoming.” Thus, Curry concludes, the mistrial afforded the
government a significant advantage from which improper prosecutorial intent should
be inferred.

        Although the government’s case may well be strengthened by the additional
Rule 413 evidence, a new trial may also expose significant weaknesses in the
government’s proof. The district court determined that the government violated
Brady by failing to disclose impeachment evidence relating to the credibility of a
witness. As the district court noted in granting a mistrial, the government’s case

                                          -4-
hinged on the credibility of this individual, as she was the only prosecution witness
who testified regarding the key issue: whether the victim was capable of consenting
to a sexual act with Curry. (See also Tr. of Government’s Closing Argument at
337:2-6 (“[This witness] was never impeached; that is, she was never--nothing she
ever said was contradicted either on cross-examination or on the defense’s case. I
submit to you, her testimony was very critical if not the most critical in this case.”))
In his second trial, Curry will have the opportunity to impeach this witness with her
prior statements. Given these circumstances, we are not persuaded that the
“advantages” cited by Curry undermine the district court’s finding regarding the
prosecutor’s intent. Likewise, after considering the three incidents of prosecutorial
misconduct as a whole, we cannot find that the district court’s finding was clearly
erroneous.

       Curry also contends that the district court erred by denying his request for an
evidentiary hearing “to further develop the record concerning the prosecutor’s intent.”
The district court concluded that because it had heard the trial and was familiar with
the objective facts and circumstances of the case, a hearing was not necessary.
Kennedy, 456 U.S. at 675 (noting that the standard it adopted “merely calls for the
court to make a finding of fact,” and that “[i]nferring the existence or nonexistence
of intent from objective facts and circumstances is a familiar process in our criminal
justice system”). We see no reason to disagree. See, e.g., United States v. White, 914
F.2d 747, 752 n.1 (6th Cir. 1990) (rejecting defendant’s claim that when a non-
frivolous motion to dismiss on double jeopardy grounds is made, the court must grant
an evidentiary hearing); United States v. Wentz, 800 F.2d 1325, 1328 (4th Cir. 1986)
(“If there existed a genuine question in the mind of the court about whether the
prosecutor had deliberately goaded [the defendant] into moving for a mistrial, an
evidentiary hearing should have been held before the second trial, not afterward.”);
cf. United States v. Pavloyianis, 996 F.2d 1467, 1474-75 (2d Cir. 1993) (rejecting
defendant’s contention that an evidentiary hearing was required to determine whether
the prosecutor engaged in misconduct with the intention of avoiding what he viewed

                                          -5-
as a likely acquittal, as “[n]o rule of law requires a hearing in this sort of case where
the relevant facts can be ascertained from the record” (citation omitted)). Thus, for
the reasons discussed above, we conclude that the district court did not err by denying
Curry’s motion to dismiss the indictment.

      The judgment is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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