     Case: 12-30529   Document: 00511951841   Page: 1   Date Filed: 08/09/2012




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

                                                                   FILED
                                                                  August 9, 2012

                                 No. 12-30529                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA


                                           Plaintiff - Appellee

v.

GERARD DUGUE


                                           Defendant - Appellant




                 Appeal from the United States District Court
                     for the Eastern District of Louisiana


Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
        Gerard Dugue was charged with participating in the cover-up of the
Danzinger Bridge shootings in New Orleans following Hurricane Katrina, and
brought to trial in early 2012. Near the conclusion of his trial, the prosecutor
violated two pre-trial rulings on motions in limine that prohibited her from
mentioning the case involving the death of Raymond Robair. Dugue sought and
was granted a mistrial. Dugue further moved to bar retrial on the basis of
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                                 No. 12-30529

double jeopardy. The district court denied the motion to bar retrial and Dugue
appeals. We AFFIRM the ruling of the district court.
                       FACTS AND PROCEEDINGS
      Dugue was a police investigator who worked on a number of high profile
cases. His indictment related to his Danzinger Bridge investigation, but he had
also previously investigated the unrelated Raymond Robair police misconduct
incident in which Robair died while in police custody. The two New Orleans
Police Department officers who held Robair were ultimately convicted in 2011
for their misconduct. Dugue was never charged with any wrongdoing in the
Robair case.
      Prior to trial, the district judge excluded evidence related to Robair under
Federal Rule of Evidence 404(b). When the government later filed its exhibit
list, Dugue’s police investigation report in the Robair case was included. Dugue
moved to exclude the report from evidence and the court granted the motion.
Dugue’s trial took place from January 23-27, 2012 and ended in a mistrial. The
district court granted the mistrial because the prosecutor mentioned the Robair
case while cross-examining Dugue. The prosecutor claimed that, by raising his
eyebrow and nodding his head, the district judge had given her permission to
introduce the Robair case. The district judge disagreed and granted a mistrial
so that the mention of the Robair case would not bias the jury against Dugue.
      Following the mistrial, the district court rejected Dugue’s motion to bar
retrial on the basis of double jeopardy, citing Oregon v. Kennedy, 456 U.S. 667
(1982), for the proposition that double jeopardy bars retrial when the
prosecutor’s conduct was intended to ‘goad’ the defendant into moving for a
mistrial. The court then concluded that the prosecutor did not intend to cause
a mistrial:
      Applying these principles to the facts and circumstances at hand,
      and having carefully considered all of the parties’ arguments in


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                                   No. 12-30529

        their memoranda, including Defendant’s arguments regarding the
        Government’s pre-trial, during trial, and post-trial conduct, the
        Court is not persuaded that, in saying “Get me Robair” in front of
        the jury, prosecutor Barbara Bernstein sought to cause Defendant
        to seek a mistrial. At a minimum, the Court notes, as reflected by
        the transcript, the Government’s vigorous opposition to Defendant’s
        request for a mistrial and Ms. Bernstein’s apparently sincere
        explanation and apology to the Court for her actions. The Court
        nonetheless granted Defendant’s motion in an abundance of caution,
        and as a prophylactic measure taken prudently to avoid a
        potentially serious issue raised on appeal or by post-conviction
        application.
Record Excerpts of Defendant-Appellant Exhibit C at 2-3, United States v.
Dugue, No. 12-30529 (5th Cir. July 2, 2012).
        Dugue timely appealed and this court expedited the appeal. Retrial before
the district court is scheduled to commence October 29, 2012.
                           STANDARD OF REVIEW
        This court reviews findings of fact by the district court for clear error.
United States v. Campbell, 544 F.3d 577, 581 (5th Cir. 2008). See also United
States v. Fields, 72 F.3d 1200, 1209 (5th Cir. 1996) (“We review this double
jeopardy claim de novo, although the district court’s factual findings are accepted
unless clearly erroneous.”).
                                  DISCUSSION

        Dugue argues that the district court erred in finding that the prosecutor
did not intend to cause a mistrial by mentioning the Robair case after the
district court had clearly instructed the government not to bring up the Robair
case.    He alleges that “[w]here a Government attorney acts with reckless
disregard for the Orders of the Court, under circumstances where only a mistrial
can cure the resultant prejudice, the intent to cause a mistrial can be inferred.”
This court has never adopted such a per se rule and we question whether such




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                                  No. 12-30529

a rule would be sufficient to show that the district court clearly erred. Instead,
we have followed the Supreme Court’s ruling in Kennedy.
      In Kennedy, the Court made it clear that prosecutorial misconduct
      alone is not sufficient for a retrial to result in a double jeopardy
      violation: “Prosecutorial conduct that might be viewed as
      harassment or overreaching, even if sufficient to justify a mistrial
      on defendant’s motion, therefore, does not bar retrial absent intent
      on the part of the prosecutor to subvert the protections afforded by
      the Double Jeopardy Clause.” Retrial is not barred even where the
      prosecution engages in “intentional misconduct that seriously
      prejudices the defendant.” Once the court determines that the
      prosecutor’s conduct was not intended to terminate the trial, “that
      is the end of the matter for purposes of the Double Jeopardy Clause
      of the Fifth Amendment. . . .”
United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003) (internal citations
omitted). For Dugue to obtain retrial, he would need to prove that Bernstein’s
“get me Robair” request was intended to cause a mistrial—a factual
determination.
      The prosecutor displayed overreaching and unprofessional conduct in
ignoring the district court’s two orders not to discuss the Robair case. Her
excuse, that the judge’s head nod in response to her raised eyebrow implied
permission to introduce previously excluded evidence, is certainly unacceptable.
Trial counsel would be wise to heed the judge’s advice:
      Don’t try to read my eyebrows, come up here and ask me. We have
      had how many bench conferences in this case and in the other case?
      Don’t you realize to come up here and have a bench conference when
      you’re about to approach something that is the subject of my ruling?
The prosecutor’s improper behavior offers a reminder that attorneys should hew
closely to the orders excluding evidence and seek clear permission when they are
approaching those topics at a later point in trial.
      The disposition of Dugue’s motion, however, does not hinge on the
prosecutor’s conduct, but rather on the factual findings of the district court.


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                                   No. 12-30529

Dugue’s failure to cite any concrete evidence of the government’s clear intent to
goad him into seeking a mistrial, coupled with the district court’s factual finding
that the government’s improper actions were not intended to create a mistrial,
provide insufficient basis for this court to find clear error.
                                 CONCLUSION
      Dugue cannot show that the district court clearly erred in finding that the
prosecutor did not intend to cause a mistrial when she said “get me Robiar.” In
the absence of such a showing, we affirm the judgment of the district court
denying the motion to bar retrial.




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