                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 10-4032
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                              GERARDO SANDOVAL,
                                         Appellant
                                 _____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Crim. No. 5:08-CR-00055-1)
                 District Judge: Honorable Mary A. McLaughlin
                                  ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 26, 2012
                                  ______________

         Before: GREENAWAY, JR., ROTH, and TASHIMA, * Circuit Judges.

                            (Opinion Filed: May 17, 2012 )
                                   _____________

                                     OPINION
                                  ______________




*
 Hon. A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
GREENAWAY, JR., Circuit Judge.

       Appellant Gerardo Sandoval (“Sandoval”) and two co-defendants were indicted on

two charges related to the distribution of marijuana. On the second day of Sandoval’s

trial, after the testimony of two Drug Enforcement Administration (“DEA”) agents

containing prejudicial information, arguably hearsay, Sandoval sought and was granted a

mistrial. Subsequently, on retrial, the jury convicted him on both counts. The District

Court sentenced Sandoval to ninety-seven months of imprisonment and four years of

supervised release. He filed a timely appeal and now argues to this Court that he should

be granted a judgment of acquittal on double jeopardy grounds. He additionally argues

that the evidence was insufficient to convict him and that his sentence is unreasonable.

       Because Sandoval himself moved for a mistrial and the prosecution did not intend

to force a mistrial, we find his double jeopardy claim meritless. The evidence was

sufficient to convict and his sentence is both procedurally and substantively reasonable.

Accordingly, we will affirm the judgment and sentence below.

                                  I.   BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts.

       Based on a tip, DEA agents began surveillance of Rafael Jimenez and Gerardo

Sandoval, whom they believed were involved in marijuana distribution. The agents

observed Jimenez and Sandoval drive to Givler’s Auto Clinic, where the two men

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purchased a trailer. Several days later, Sandoval was observed with the trailer, which

was then hooked to a pick-up truck and driven to a mushroom farm. At the farm, the

pick-up truck and a van were parked close to each other. The DEA agent who had trailed

the pick-up truck smelled marijuana, and agents recovered 1,566 pounds of marijuana

from the two vehicles. One of Sandoval’s co-defendants was in the truck and the other

was in the van. Sandoval and Jimenez were stopped nearby while driving away from the

farm in a silver Audi.

         Sandoval and his two co-defendants were indicted and charged with conspiring to

possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846 (Count One),

and with possessing 700 kilograms of marijuana with intent to distribute for

remuneration, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B),

and 18 U.S.C. § 2 (Count 2). While his two co-defendants pled guilty, Sandoval went to

trial.

         At Sandoval’s trial, DEA Special Agent Rodgers was the Government’s first

witness. After a question about what Rodgers had told the owner of Givler’s Auto Clinic,

the District Court cautioned Rodgers to refrain from relating hearsay to the jury. At

sidebar, the prosecutor affirmed that she had instructed Rodgers to refrain from invoking

hearsay. Nonetheless, Rodgers subsequently stated, “Surveillance agents informed us

that the trailer was being—” before an objection was lodged. (App. 38-39.) The

remainder of the testimony was uneventful.

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       The Government’s second witness was DEA Special Agent Matsko. The District

Court had issued an in limine ruling that Matsko could not mention the existence of a tip

from an informant. Nonetheless, Matsko mentioned that he had instructed other agents to

establish surveillance at a particular location because a large load of marijuana was

expected to arrive there. He also stated that he told the agents that they should “look out

for Rafael Jimenez and Gerardo Sandoval.” (App. 43-44.)

       At this point, the District Judge expressed her displeasure at a sidebar and

acknowledged that she “honestly [didn’t] know what to do at this point.” (App. 46.)

After the sidebar, outside the presence of the jury, the Judge had Matsko’s testimony read

back. Sandoval’s counsel indicated that he would move for a mistrial, as he did not

believe striking the testimony could remedy the problem. The Judge then repeated that

she could not think of any way to reverse the damage caused by the hearsay testimony.

After a conversation in chambers with counsel, she granted the mistrial.

       Retrial began the following day, and the jury returned a guilty verdict two days

later. The District Court imposed a sentence of ninety-seven months of imprisonment

and four years of supervised release.

               II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.

This Court has jurisdiction over a challenge to the conviction under 28 U.S.C. § 1291 and

over a challenge to the sentence under 18 U.S.C. § 3742(a).

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       We employ three different standards of review for the three issues Sandoval raises.

Our review of double jeopardy challenges is plenary. United States v. Dees, 467 F.3d

847, 853 (3d Cir. 2006). In evaluating a sufficiency of the evidence challenge, we view

the evidence in the light most favorable to the Government and sustain the verdict where

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Jones, 566 F.3d 353, 361 (3d Cir. 2009) (internal

quotation marks citation omitted). Finally, we review both the procedural and

substantive reasonableness of a sentence imposed by the District Court for abuse of

discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

                                   III.   ANALYSIS

   A. Double Jeopardy

       The double jeopardy clause prohibits any person from being “twice put in

jeopardy of life or limb” based on the same offense. U.S. Const. amend. V. Generally,

though, “where the defendant seeks a mistrial, ‘[n]o interest protected by the Double

Jeopardy Clause is invaded.’” United States v. Rivera, 384 F.3d 49, 54 (3d Cir. 2004)

(quoting United States v. Scott, 437 U.S. 82, 100 (1978)). In such a case, a subsequent

prosecution usually does not offend the Constitution. Id.

       However, there is a “narrow exception” to the rule that a mistrial sought by the

defendant cannot violate the double jeopardy clause. Oregon v. Kennedy, 456 U.S. 667,

673 (1982). The Government may not bring a second prosecution where, in the first trial,

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“the prosecutor’s actions giving rise to the motion for mistrial were done ‘in order to

goad the [defendant] into requesting a mistrial.’” Id. (quoting United States v. Dinitz, 424

U.S. 600, 611 (1976)). The test here is one of prosecutorial intent; “[o]nly 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.” Id. at 676.

       In United States v. Williams, we noted that post-Kennedy case law “has

consistently emphasized that application of the double jeopardy bar is dependent on a

showing of the prosecutor’s subjective intent to cause a mistrial in order to retry the

case.” 472 F.3d 81, 85-86 (3d Cir. 2007) (emphasis added). In that case, the

Government argued that the prosecutor had mistakenly, and not intentionally, triggered a

mistrial with his questioning. Id. at 86. We concluded that evidence in the record did not

show that the prosecutor intended to provoke the defendant into seeking a mistrial. Id. at

87. In so doing, we adopted the Tenth Circuit’s conclusion that a prosecutor’s knowledge

of the “natural and probable” causes of his actions did not supply the intent required for

the double jeopardy exception to apply. Id. at 88; see also United States v. Powell, 982

F.2d 1422, 1429 (10th Cir. 1992) (“Carelessness or mistake on the part of the

prosecution, as opposed to a calculated move aimed at forcing the defendant to request a

mistrial, is not sufficient to bar retrial under the Double Jeopardy Clause.”).

       Sandoval argues that, although “the Prosecutor might not have set out to cause a

mistrial,” the Government should be “charged with the knowledge that a mistrial might or

                                              5
would, in fact, occur” when its witness introduced hearsay testimony that the Judge had

already made clear would not be admissible. (Appellant’s Br. 12.) Sandoval’s

concession, though, ends the inquiry. Given our decision in Williams, we are foreclosed

from considering the argument that a prosecutor’s knowledge that her actions might lead

the defendant to seek a mistrial supplies the requisite level of intent required for the

defendant to invoke double jeopardy after moving for a mistrial.

   B. Sufficiency of the Evidence

       In order to prevail on his sufficiency of the evidence challenge, Sandoval must

demonstrate that, viewing the evidence in the light most favorable to the Government, no

rational trier of fact could have found the essential elements of the crime to have been

proven beyond a reasonable doubt. Jones, 566 F.3d at 361.

       Sandoval contends that the evidence was insufficient to connect him to the

conspiracy, but he acknowledges testimony that Sandoval had offered to pay his co-

conspirator $2,000 to transport marijuana and that Sandoval was present at the scene of

the crime. (Appellant’s Br. 19-20.) There was also testimony at trial that Sandoval

purchased the trailer used in the crime and that he stayed in constant phone

communication with a co-conspirator while the marijuana was being transported. This

evidence disproves the argument that no rational juror could find that Sandoval was

involved in the conspiracy.



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   C. Reasonableness of the Sentence

       Finally, the District Court did not abuse its discretion in sentencing Sandoval. The

burden rests with the defendant to demonstrate that the sentence was not reasonable.

United States v. King, 454 F.3d 187, 194 (3d Cir. 2006). The sentence was procedurally

and substantively reasonable, because the District Court considered the 18 U.S.C. §

3553(a) factors and imposed a sentence within the Guidelines range. The transcript of

the sentencing hearing shows that the Court understood the breadth of its discretion.

After taking into account Sandoval’s actions and background, it nonetheless specifically

chose not to vary downward. The sentence is reasonable. Accordingly, Sandoval has not

met his burden here.

                                 IV.    CONCLUSION

       For the reasons set forth above, we will affirm the conviction and sentence issued

by the District Court.




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