               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                              No. 01-41184
                            Summary Calendar



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

versus

WILLIAM D. PICKETT, JR.,

                                               Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                          (1:01-CR-36-ALL)
                        --------------------
                            June 14, 2002

Before HIGGINBOTHAM, WIENER, AND BARKSDALE, Circuit Judges.

PER CURIAM:*

      Defendant-Appellant    William    D.   Pickett,     Jr.    appeals   the

district court’s denial of his motion to dismiss a superseding

indictment in which he was charged with distribution of crack

cocaine.   Pickett previously was tried on the same charge pursuant

to   an amended   indictment,   but    the   district    court    sua   sponte

declared a mistrial when the jury deadlocked.           Pickett argues that


      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
a retrial is barred by the Double Jeopardy Clause, contending that

the mistrial resulted from prosecutorial misconduct.                        First, the

original prosecution was declared a mistrial only after protracted

deliberations       and   an   Allen     charge       failed    to    resolve     a    jury

deadlock.    The reasons for which the court declared a mistrial had

nothing to do with the incident that Pickett characterizes as

prosecutorial conduct. Second, that incident was discovered during

deliberations when it came to the attention of all parties that one

of the jurors was the ex-wife of an uncle of a computer specialist

who   had   rendered      technical      assistance       to    the   Assistant        U.S.

Attorney at some point during the trial.                       And, it was cured by

investigation    and      instructions         with    the   express      approval     and

concurrence of the parties.

      The   district      court    did    not    err    in     concluding       that   the

government did not intend to provoke a mistrial.                          Moreover, the

conduct relied on by Pickett to support his argument —— the

presence of the computer technician formerly related by marriage to

a juror —— does not rise to the level of prosecutorial misconduct,

much less misconduct of the magnitude needed to trigger the double-

jeopardy bar.    See Oregon v. Kennedy, 456 U.S. 667, 678-79 (1982);

United States v. Botello, 991 F.2d 189, 192 (5th Cir. 1993).

      Pickett   also      argues    that       the    amendment      of   the   original

indictment    was    improper      and   untimely.           Regardless      of   merit,


                                           2
Pickett’s challenge to the amendment of the original indictment is

not cognizable in this appeal.       See United States v. Weeks, 870

F.2d 267, 270 (5th Cir. 1989) (interlocutory review of motion to

dismiss on double jeopardy grounds does not extend to otherwise

non-appealable   questions).         Accordingly,   this   issue   is

unreviewable.

AFFIRMED.




                                 3
