                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                No. 12-30360
                Plaintiff-Appellee,
                                            D.C. No.
                v.                       3:10-cr-05220-
                                             RBL-1
ABRAHAM GARCIA MONDRAGON,
           Defendant-Appellant.            OPINION


     Appeal from the United States District Court
       for the Western District of Washington
     Ronald B. Leighton, District Judge, Presiding

                Argued and Submitted
        October 10, 2013—Seattle, Washington

               Filed December 23, 2013

     Before: A. Wallace Tashima, Susan P. Graber,
         and Mary H. Murguia, Circuit Judges.

               Opinion by Judge Graber
2               UNITED STATES V. MONDRAGON

                           SUMMARY*


                          Criminal Law

    The panel affirmed the district court’s denial of a
defendant’s motion to dismiss on double jeopardy grounds a
second superseding indictment in a case in which the district
court declared a mistrial after the defendant reached a (since-
rescinded) plea agreement during a settlement conference that
took place after the jury had been empaneled.

    The panel held that the district court, which declared the
mistrial after the defendant stated that he did not object, did
not “goad” the defendant into consenting to the mistrial by
acquiescing in the defendant’s own request for the settlement
conference, and that the Double Jeopardy Clause therefore
does not bar retrial.


                            COUNSEL

Robert Gombiner, Seattle, Washington, for Defendant-
Appellant.

Helen J. Brunner (argued), Assistant United States Attorney,
and Jenny A. Durkan, United States Attorney, Western
District of Washington, Seattle, Washington, for Plaintiff-
Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. MONDRAGON                     3

                         OPINION

GRABER, Circuit Judge:

    Defendant Abraham Garcia Mondragon entered into a
plea agreement after the jury had been empaneled in this
criminal case. The district court accepted Defendant’s guilty
plea, declared a mistrial, and discharged the jury. After
successfully moving to rescind his guilty plea, Defendant
sought to avoid trial altogether by invoking the Double
Jeopardy Clause’s protection of his right to have the first
empaneled jury decide his case. The district court concluded
that the original district judge’s acquiescence in Defendant’s
voluntary request to enter into plea negotiations in no way
“goaded” Defendant into consenting to a mistrial.
Accordingly, the district court denied Defendant’s motion to
dismiss the superseding indictment. Reviewing de novo the
legal questions raised on appeal, United States v. Lopez-Avila,
678 F.3d 955, 961 (9th Cir. 2012), we affirm.

       FACTUAL AND PROCEDURAL HISTORY

    In 2010, the government indicted Defendant on several
drug counts and a firearms count. On the first day of trial,
before the jury had been selected, Defendant requested a
settlement conference under Western District of Washington
Local Rule 17.2. That rule allows a settlement conference
with the assistance of a “settlement judge”: a federal judge
who is not presiding over any portion of the criminal case.

    Defendant specifically requested the assistance of Judge
Ricardo S. Martinez. The prosecutor agreed to participate,
but Judge Martinez was not available immediately. The
presiding judge, Judge Benjamin H. Settle, decided to move
4             UNITED STATES V. MONDRAGON

forward with trial until Judge Martinez became available.
The court empaneled and swore in the jury, and it gave
preliminary instructions.

    During an afternoon recess, the parties engaged in a
settlement conference with Judge Martinez and reached a plea
agreement. Defendant agreed to plead guilty, and the parties
agreed to recommend a sentencing range of 12 to 17 years in
prison. Judge Settle conducted a change-of-plea hearing and
accepted Defendant’s guilty plea. After Defendant expressly
stated twice that he did not object to a mistrial, the court
declared a mistrial and discharged the jury.

    Three weeks later, Defendant filed a motion to withdraw
his guilty plea. The district court denied the motion. The
court sentenced Defendant to 144 months in prison—the low
end of the applicable Guidelines range. Despite the waiver of
the right to appeal in his plea agreement, Defendant appealed.

    In his opening brief in that first appeal, Defendant sought
to vacate the guilty plea. In lieu of an answering brief, the
government filed a motion to vacate the guilty plea and
remand. The motion disagreed with Defendant’s legal
arguments but argued that, because Defendant had breached
the plea agreement by filing an appeal, the court should
vacate the guilty plea. The motion concluded that, “[s]ince
both parties seek the same remedy, there is essentially no
reason to proceed with this appeal. Therefore, this Court
should grant the motion, vacate the . . . guilty plea[] and
remand the case to the district court for further proceedings
as appropriate.” Several months later, the parties filed a joint
motion to vacate and remand. This court issued the following
order:
              UNITED STATES V. MONDRAGON                     5

           The parties’ joint motion for summary
       reversal and remand, following mediation in
       this court, is granted in part. This appeal is
       remanded to the district court for further
       proceedings in light of the parties’ current
       positions. All other pending motions are
       denied as moot.

(Paragraph break omitted.)

    On remand, Judge Settle recused himself, and the case
was reassigned to Judge Ronald B. Leighton. The district
court rescinded the plea agreement. The government filed a
second superseding indictment. Defendant filed a motion to
dismiss the indictment on the ground that double jeopardy
bars his retrial. The district court denied the motion to
dismiss the indictment.

    Defendant timely appeals. Because Defendant raises a
“colorable” argument that double jeopardy bars his retrial, we
have jurisdiction over this interlocutory appeal. United States
v. Alvarez-Moreno, 657 F.3d 896, 899 (9th Cir. 2011).

                       DISCUSSION

     Jeopardy attached when the jury was sworn. Bretz v.
Crist, 546 F.2d 1336, 1339–46 (9th Cir. 1976). Defendant’s
trial ended when, with Defendant’s consent, the court
declared a mistrial. The government now seeks to conduct a
new trial.

    The Supreme Court has developed dual doctrines for
assessing whether the Double Jeopardy Clause bars retrial
after the declaration of a mistrial. “Where the trial is
6             UNITED STATES V. MONDRAGON

terminated over the objection of the defendant, the classical
test for lifting the double jeopardy bar to a second trial is the
‘manifest necessity’ standard . . . .” Oregon v. Kennedy,
456 U.S. 667, 672 (1982). That is, unless there was a
“manifest necessity” for a mistrial, the Double Jeopardy
Clause bars retrial because of “the defendant’s interests in
having his case finally decided by the jury first selected.” Id.

    “But in the case of a mistrial declared at the behest of the
defendant,” id., or, as here, with the defendant’s consent, see
United States v. Dinitz, 424 U.S. 600, 608 (1976); Lopez-
Avila, 678 F.3d at 961–62, “the ‘manifest necessity’ standard
has no place in the application of the Double Jeopardy
Clause,” Kennedy, 456 U.S. at 672. Instead, when a
defendant does not object to a declaration of mistrial, the
general rule is that “the Double Jeopardy Clause is no bar to
retrial,” because the defendant voluntarily has chosen not “to
have his trial completed before the first jury empaneled to try
him.” Id. at 673. In other words, when the defendant seeks
or consents to mistrial, we presume that the defendant “gives
up his or her right to a verdict by that jury.” United States v.
Lewis, 368 F.3d 1102, 1108 (9th Cir. 2004).

    That rule, that a declaration of mistrial at the behest or
with the consent of the defendant stands as no obstacle to a
new trial, has one “narrow exception”; the rule does not apply
when the mistrial is caused by the misconduct of the
prosecutor or judge and that misconduct is motivated by an
“intent . . . to subvert the protections afforded by the Double
Jeopardy Clause.” Kennedy, 456 U.S. at 673, 676. “Only
where the governmental conduct in question is intended to
‘goad’ the defendant” into moving for or consenting to a
mistrial does double jeopardy bar a second trial. Id. at 676.
              UNITED STATES V. MONDRAGON                      7

    Here, Defendant argues that the district court engaged in
misconduct because the settlement conference violated
Federal Rule of Criminal Procedure 11. He further argues that
the misconduct constituted “goading” because the presiding
judge intended that the settlement conference result in
Defendant’s consent to a mistrial. Federal Rule of Criminal
Procedure 11(c)(1) forbids participation by “[t]he court” in
plea negotiations. At Defendant’s request, Judge Settle
permitted the parties to engage in a settlement conference
pursuant to Local Rule 17.2, which allows the assistance of
a “settlement judge” who “shall not preside over any aspect
of the case, other than facilitation of a voluntary settlement.”
Local Rule 17.2(b). In accordance with that rule, Judge
Martinez did nothing more than facilitate the voluntary
settlement conference, and Judge Settle did not participate in
the conference.

    Before the district court and initially on appeal, the
government argued that the participation by Judge Martinez
in the settlement conference did not violate Rule 11, because
Judge Martinez otherwise had no role in the criminal case.
See United States v. Scolari, 72 F.3d 751, 753 (9th Cir. 1995)
(“This court previously approved the participation by a
settlement judge in plea negotiations in United States v.
Torres, 999 F.2d 376[, 377] (9th Cir. 1993) [(per curiam)].”).
On the eve of oral argument, however, the government
informed this court that,

       in light of the Supreme Court’s decision in
       United States v. Davila, 133 S. Ct. 2139
       (2013), the Department of Justice has
       reconsidered its position regarding the
       settlement conference procedures permitted
       under [Local Rule 17.2] for the Western
8             UNITED STATES V. MONDRAGON

        District of Washington, and similar rules
        adopted in other judicial districts. As a result,
        the United States Attorney’s Office for the
        Western District of Washington will no longer
        participate in this type of settlement
        conference. Further, the United States will no
        longer rely on the arguments [urging this
        court to conclude that the settlement
        conference here did not violate Rule 11].

    As explained below, we need not, and do not, decide what
effect, if any, Davila has on this case or whether the district
court engaged in misconduct. Compare United States v. Kyle,
734 F.3d 956, 965–66 (9th Cir. 2013) (holding that the
district court plainly erred by participating in the parties’ plea
discussion), with Scolari, 72 F.3d at 753 (noting that this
court has approved judicial involvement in plea negotiations
in certain circumstances). Even if we assume that the district
court violated the local settlement rule and Rule 11, we still
conclude that the district court’s actions did not constitute
“goading.”

    Defendant argues that the court’s alleged misconduct
constituted “goading” because Judge Settle intended that the
settlement conference result in a mistrial. As an initial
matter, we doubt that, without more, allowing a defendant to
participate in a settlement conference that he
requested—even if the conference violated the Federal Rules
of Criminal Procedure—could possibly be considered judicial
goading. As the Supreme Court stated in Kennedy, the
“goading” doctrine is a “narrow exception.” 456 U.S. at 673
(emphasis added); see also Lopez-Avila, 678 F.3d at 962 (“In
practice, the Kennedy standard is rarely met.”). There is no
suggestion in the record that Judge Settle had any purpose
              UNITED STATES V. MONDRAGON                      9

other than, as he stated at the time, to “give the defendant
every opportunity to pursue whatever resolution with the
government that the government [was] to entertain.”
Defendant leaps from the fact that a voluntary settlement
conference may result in a plea agreement and a consequent
mistrial to the conclusion that the judge necessarily sought to
cause a mistrial. There is no support in the law, in logic, or
in the record for that leap.

    In any event, Defendant’s argument rests on a
fundamental misunderstanding of the nature of the Double
Jeopardy Clause in these circumstances. When a defendant
moves for or consents to a mistrial, the relevant inquiry is not
simply whether the misconduct conceivably could result in a
mistrial. As the Supreme Court and this court repeatedly
have emphasized, the relevant inquiry is whether the
impropriety was an attempt to prevent the empaneled jury
from reaching its verdict. See, e.g., Dinitz, 424 U.S. at 611
(holding that the Double Jeopardy Clause bars retrial when
the misconduct is aimed at “afford[ing] the prosecution a
more favorable opportunity to convict the defendant”
(internal quotation marks omitted)); United States v. Tateo,
377 U.S. 463, 468 n.3 (1964) (“If there were any intimation
in a case that prosecutorial or judicial impropriety justifying
a mistrial resulted from a fear that the jury was likely to
acquit the accused, different considerations would, of course,
obtain.”); Lopez-Avila, 678 F.3d at 962 (“[I]n the language of
veteran trial lawyers, the Double Jeopardy Clause bars retrial
when a prosecutor’s misconduct aims to ‘burn’ the jury, but
not when he merely aims to convict the defendant by methods
foul.”); United States v. Perlaza, 439 F.3d 1149, 1173 (9th
Cir. 2006) (noting that “the Double Jeopardy Clause
‘prevents prosecutors from sinking a case they knew was
doomed to end in an acquittal in the hope of having better
10            UNITED STATES V. MONDRAGON

luck before a second jury’” (quoting Lewis, 368 F.3d at
1108)).

    For instance, if a prosecutor thinks that the jury will
acquit because the government’s star witness performed
poorly on cross-examination, the prosecutor’s misconduct
aimed at causing a mistrial would bar retrial. Or if a judge
who disliked the jury’s racial or professional mix engaged in
misconduct in order to seek a different mix in the jury pool,
the judge’s misconduct leading to a mistrial would bar retrial.
Here, however, nothing in the record suggests that the judge’s
benign acquiescence in Defendant’s own request for a
settlement conference was motivated in any way by
dissatisfaction with the empaneled jury or the proceedings to
date.

    In these circumstances, as in Tateo, 377 U.S. at 467 n.2,
it is “difficult to understand why [Defendant] should be
treated differently from one who is coerced into pleading
guilty before a jury is impaneled.” Defendant already has
achieved a remedy for the alleged violation of Rule
11—withdrawal from the plea agreement. The Double
Jeopardy Clause protects a defendant from improper attempts
by the prosecutor or the judge to avoid having the empaneled
jury reach a verdict, but it does not give an added benefit to
a defendant when alleged misconduct happens to occur after
the jury has been empaneled but bears no relationship to the
identity, composition, or proceedings of that particular jury.

     AFFIRMED.
