 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 16, 2013                    Decided July 5, 2013

                       No. 12-3070

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                  WINSTON MCCALLUM,
                      APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:10-cr-00234-1)


    Lisa B. Wright, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender. Tony Axam Jr.,
Assistant Federal Public Defender, entered an appearance.

    Kristina L. Ament, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and Elizabeth Trosman, Chrisellen R. Kolb,
Kenneth F. Whitted, and Kathryn L. Rakoczy, Assistant U.S.
Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney,
entered an appearance.
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    Before: HENDERSON and GRIFFITH, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

    Opinion for the Court filed by Senior Circuit Judge
GINSBURG.

     GINSBURG, Senior Circuit Judge: After the prosecutor
repeatedly failed to meet his disclosure obligations, Winston
McCallum moved for and obtained a mistrial. Shortly before
retrial the prosecutor belatedly disclosed yet more information
that McCallum had subpoenaed before the first trial. Arguing
that he would have seen the first trial through to a verdict but
for the Government’s latest disclosure violation, McCallum
moved to dismiss the indictment under the Double Jeopardy
Clause of the Fifth Amendment to the Constitution of the
United States. The district court denied the motion because
the prosecutor’s misconduct was not intended to goad
McCallum into seeking a mistrial. We affirm that decision.

                        I. Background

     Shortly after midnight on July 28, 2010, Officers Alfonso
Matos and Ismael Chapa of the Metropolitan Police
Department (MPD) noticed McCallum sitting in front of his
apartment building. According to Officer Matos’s pre-trial
testimony, McCallum was “leaning forward as if he was
asleep or intoxicated.” The officers approached, but upon
seeing them, Officer Matos testified, McCallum “got up and
tried to run towards the door.” Officer Matos testified the
officers caught McCallum and placed him in handcuffs, using
“two handcuffs linked together” because McCallum “was a
larger individual.” Officer Matos asked McCallum whether
he had anything illegal and McCallum replied, according to
the officer, “I got cocaine on me.” Officer Matos testified
that McCallum then somehow moved his hands, which were
                              3
handcuffed behind his back, towards the front right pocket of
his pants whereupon, improbable as it may seem, a “bag of
cocaine fell out.” The officers arrested McCallum and
recovered more cocaine from his person.

     Some months later a grand jury charged McCallum with
unlawful possession with intent to distribute 28 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B)(iii), and with unlawful possession with intent to
distribute 28 grams or more of cocaine base within 1,000 feet
of a school, in violation of 21 U.S.C. § 860(a). As
McCallum’s case inched toward trial, the Government
committed a series of disclosure violations leading to, and
then extending beyond, the district court’s declaration of a
mistrial based upon such violations.

     In February 2011 the district court held a hearing on
McCallum’s motion to suppress physical evidence and
statements.        After cross-examining Officer Matos,
McCallum’s counsel noticed a transcript of Matos’s grand
jury testimony on the prosecutor’s desk; only then did the
prosecutor provide the transcript to the defense. Because
Officer Matos’s testimony before the grand jury was
potentially inconsistent with his testimony at the suppression
hearing, the district court permitted McCallum to recall
Officer Matos for further cross-examination. The district
court granted McCallum’s motion to suppress with respect to
physical evidence recovered from a search of his apartment
after his arrest, but denied McCallum’s motion to suppress
with respect to the drugs taken from his person at the time of
arrest and the statements he made at the scene.

     After the suppression hearing McCallum’s counsel asked
the prosecutor whether Officer Chapa’s grand jury testimony
contained exculpatory information. The prosecutor then
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turned over a transcript of Officer Chapa’s testimony.
Because Officer Chapa’s testimony before the grand jury was
inconsistent with Officer Matos’s testimony at the
suppression hearing, the district granted McCallum’s request
to reopen the suppression hearing. The court thereafter
reaffirmed its denial of McCallum’s motion to suppress the
drugs taken from his person and his statements at the scene.

     Before trial McCallum subpoenaed from the MPD all
documents pertaining to complaints against Officers Chapa
and Matos.       The prosecutor, reporting there were no
complaints against Officer Chapa and only two traffic-related
complaints against Officer Matos, moved to quash the
subpoena. The district court, however, instructed him to
inquire further with the MPD. Soon thereafter the prosecutor
produced for the district court’s in camera inspection written
summaries of statements Officers Chapa and Matos had made
to MPD Internal Affairs Bureau in response to McCallum’s
complaint about his arrest. The district court warned the
prosecutor that the statements made by the officers were
“probable Jencks [Act] material because ... the complaint filed
by Mr. McCallum ... [was] about this very arrest that’s the
subject of this case.” See 18 U.S.C. § 3500(b) (requiring the
United States to produce, upon motion of the defendant, any
relevant prior statement of a witness who has testified for the
Government). Despite having promised to provide all Jencks
Act material to the defense at least 10 days before trial, it was
not until the morning trial was to begin that the Government
gave defense counsel the summaries of the statements
Officers Chapa and Matos had made to Internal Affairs, along
with a “property book receipt” listing evidence recovered
from the scene of the arrest.

    At trial McCallum’s counsel attempted to impeach
Officer Matos with the summary of his statement to the
                                5
Internal Affairs Bureau. Officer Chapa testified that the
summary did not accurately reflect his statement, which he
said had been “audibly recorded.” The prosecutor told the
district court “[t]his is the first I’ve learned ... there was an
audio recording made” but he obtained and gave the recording
to the defense that evening. After listening to the recording,
McCallum’s counsel moved to strike the testimony of
Officers Chapa and Matos or, in the alternative, for a mistrial.
The district court held the Government’s failure to give the
recording to the defense prior to trial was “a violation under
the Jencks Act” and therefore declared a mistrial, adding that
the second trial would be fair because “[p]resumably all of the
Jencks material, as well as any other [required disclosures
under] Brady, Giglio, Lewis and so on, will have been finally
produced.”

     The district court’s presumption proved overly
optimistic: Shortly before McCallum’s second trial, the
Government submitted 17 more complaints against Officers
Chapa and Matos for in camera review by the district court.
The court ordered three of those complaints disclosed to the
defense because they included allegations that the officers had
falsely accused other individuals of possessing drugs. United
States v. McCallum, 885 F. Supp. 2d 105, 110 (D.D.C. 2012).

     McCallum then moved to dismiss the indictment on the
ground that his retrial would subject him to double jeopardy.
McCallum claimed he would not have requested a mistrial
had he been informed, as he should have been, of the
complaints against Officers Chapa and Matos; accordingly, he
argued, the district court should treat the case as if the mistrial
had been declared not at the request of the defense but rather,
at the request of the Government and “over the objection of
the defense.” The district court denied that motion; because
McCallum had sought the mistrial, it held, double jeopardy
                              6
would bar his retrial only if “the prosecutor [had] goaded
McCallum into requesting a mistrial.” 885 F. Supp. 2d at 114
(citing Oregon v. Kennedy, 456 U.S. 667, 676 (1982)). On
the contrary, the district court found, “the prosecutor’s
conduct was neither intentional nor intended to provoke a
mistrial,” and therefore McCallum lawfully could be retried.
Id. at 115.

                         II. Analysis

     We have jurisdiction over this interlocutory appeal
because “a pretrial order denying a motion to dismiss an
indictment on double jeopardy grounds” comes within the
collateral order doctrine and is therefore a “final decision”
within the scope of 28 U.S.C. § 1291. Abney v. United States,
431 U.S. 651, 659 (1977); see generally Digital Equipment
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867–68 (1994).
McCallum does not challenge the factual findings underlying
the court’s order, including the finding that the prosecutor’s
conduct was not intended to provoke a mistrial. McCallum
argues only that the order violates his right under the Double
Jeopardy Clause, a question of law, which we review de novo.
See United States v. Coughlin, 610 F.3d 89, 96 (D.C. Cir.
2010).

     The constitutional protection against double jeopardy
comprises not only the defendant’s right to be secure in a
judgment of conviction or acquittal but also his “‘valued right
to have his trial completed by a particular tribunal.’” Arizona
v. Washington, 434 U.S. 497, 503 (1978) (emphasis added)
(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).
Although “retrial is not automatically barred when a criminal
proceeding is terminated [prematurely] ..., the prosecutor
must shoulder the burden of justifying the mistrial if he is to
avoid the double jeopardy bar.” Id. at 505. It follows that
                               7
when a mistrial is declared over the objection of the
defendant, retrial is permissible only if declaring a mistrial is
manifestly necessary and no fault of the prosecution.
Kennedy, 456 U.S. at 672. “[T]he hung jury [is] the
prototypical example of manifest necessity.” United States v.
Glover, 731 F.2d 41, 46 (D.C. Cir. 1984) (internal quotation
marks omitted).

     A different rule applies when a mistrial is declared at the
instance of the defendant:

    A defendant’s motion for a mistrial constitutes “a
    deliberate election on his part to forgo his valued right to
    have his guilt or innocence determined before the first
    trier of fact.” United States v. Scott, 437 U.S. 82, 93
    (1978). ... Only where the governmental conduct in
    question is intended to “goad” the defendant into
    moving for a mistrial may a defendant raise the bar of
    double jeopardy to a second trial after having succeeded
    in aborting the first on his own motion.

Kennedy, 456 U.S. at 676 (emphasis added).

      Because the mistrial in this case was declared upon
McCallum’s own motion, the district court applied the intent
to goad standard announced in Oregon v. Kennedy.
McCallum objects, however, that Kennedy “did not address a
case ... where there was a second (hidden) layer of
misconduct,” referring here to the Government’s failure to
disclose the 17 complaints to the district court before his first
trial. Being unaware of that misconduct, McCallum “could
not have incorporated it into any ‘deliberate election’ to seek
a mistrial.” “In this situation,” he argues, “the ‘goading’
standard just makes no sense: The [G]overnment cannot goad
the defense into doing anything — let alone moving for a
                                 8
mistrial — by engaging in misconduct the defense does not
know about.”

      McCallum has identified a genuine puzzle. As a
linguistic matter the word “goad” suggests action — the thrust
of a stick, say, to drive a reluctant herd, or the taunts of a
schoolyard bully to incite fisticuffs. A prosecutor’s failure to
meet his disclosure obligations, the nature of which is inaction
and the existence of which is unknown, cannot goad a
defendant into moving for a mistrial. If goading were
essential, therefore, no disclosure violation by a prosecutor
could ever trigger the bar of double jeopardy. Perhaps that is
the rule and the remedy is not that the defendant go free but
that the prosecutor be sanctioned. Rather than be led to that
broad conclusion by making a talisman of a single word,
however, we focus not upon the search for a “goad” but
instead upon the Supreme Court’s underlying concern, which
is “the intent of the prosecutor.” Id. at 675. When a
prosecutor deliberately causes the defendant to move for a
mistrial, presumably because he believes the odds of getting a
conviction will be better if he can get a fresh start, his intent is
to “subvert the protections afforded by the Double Jeopardy
Clause.” Id. at 676. Whether the prosecutor intends to obtain
the mistrial by malfeasance or nonfeasance, action or inaction,
is irrelevant.

      Suppose a defendant moves for a mistrial on the ground
that the jury has been tainted; meanwhile, the prosecutor has
learned of exculpatory information that, if revealed, would
cause the defendant to withdraw his motion and complete the
trial, which is otherwise going well for the defendant; the
prosecutor therefore decides to withhold the information with
the express purpose of obtaining a mistrial.          In this
hypothetical case the defendant was not “goaded” by the
prosecutor into seeking the mistrial but the prosecutor
                               9
nonetheless, by his knowing inaction, intentionally caused the
mistrial to be declared in order to gain a strategic advantage.
In such a case, double jeopardy surely bars a second trial
because the prosecutor “intended to provoke the defendant
into moving,” or more precisely, adhering to his motion “for a
mistrial.” Id. at 679. That the prosecutor did not, strictly
speaking, “goad” the defendant into seeking a mistrial is
immaterial.

     Even assuming, as we do, that a prosecutor’s failure to
meet his disclosure obligations bars retrial under the Double
Jeopardy Clause if and only if the failure was intended to and
did cause the defendant to move for and obtain a mistrial, the
intent of the prosecutor is a question of fact to be decided by
the district court in the first instance. Id. at 675. Here the
district court specifically found “the prosecutor’s conduct was
neither intentional nor intended to provoke a mistrial.” 885 F.
Supp. 2d at 115. We would review that finding for clear
error, see Robinson v. Wade, 686 F.2d 298, 309 (5th Cir.
1982) (“A finding that the Government’s acts do not amount
to intentional misconduct ... will not be set aside unless shown
to have been clearly erroneous”); cf. United States v. Meyer,
810 F.2d 1242, 1244 (D.C. Cir. 1987) (“The clearly erroneous
standard ordinarily governs review of a judge’s findings in a
criminal case on issues other than the defendant’s guilt”), but
the appellant here does not challenge it. Nor is the district
court’s finding that the prosecutor’s conduct was
unintentional infected by plain error. See United States v.
Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1989) (“[E]ven though
an issue was not raised ... on appeal, the issue would not be
deemed [forfeit] had it been ‘a case of plain error in which we
should reverse on our own motion’” (quoting United States v.
Greschner, 802 F.2d 373, 380 (10th Cir. 1986))); see also
FED. R. CRIM. P. 52(b).
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                       III. Conclusion

     We do not condone the conduct of the prosecution in this
case; far from it. The Government’s dereliction of its duty to
disclose information deprived the defendant of the
opportunity to plan and to execute his trial strategy — which
the Government can now more fully anticipate when the case
is retried. Because the prosecutor’s several violations were
unintentional, however, retrial of McCallum is not barred by
the Double Jeopardy Clause. The order of the district court
denying the motion to dismiss the indictment is therefore

                                                    Affirmed.
