                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 06-2001, 06-2003, 06-2005 & 06-2108
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

HARRY GILMORE, EDDIE BELL,
PATRICK BRAY, and TROY MARTIN,
                                     Defendants-Appellants.
                          ____________
           Appeals from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 04 CR 495—Rebecca R. Pallmeyer, Judge.
                          ____________
       ARGUED JUNE 5, 2006—DECIDED JULY 24, 2006
                      ____________


  Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
   BAUER, Circuit Judge. On September 8, 2004, a grand
jury returned a seventy-two count indictment charging
forty-five defendants with various drug trafficking and
firearms offenses. Defendants Harry Gilmore, Eddie
Bell, Patrick Bray, and Troy Martin were indicted for
their participation in a drug trafficking conspiracy and were
charged with violating 21 U.S.C. § 846 and
21 U.S.C. § 843(b). Bell was also indicted for distributing
controlled substances, in violation of 21 U.S.C. § 841(a)(1).
Defendants appeal the district court’s denial of a motion
to dismiss, which they filed on double jeopardy grounds. We
2                Nos. 06-2001, 06-2003, 06-2005 & 06-2108

have jurisdiction over this interlocutory appeal pursuant to
the collateral order exception to the final decision rule of 28
U.S.C. § 1291. See Abney v. United States, 431 U.S. 651, 662
(1977) (holding that denials of motions to dismiss claiming
double jeopardy grounds are immediately appealable).
Defendants contend that during the prosecutor’s opening
statement he intentionally violated the district court’s
motion in limine ruling in order to provoke defendants into
moving for a mistrial. They argue that if the court does not
dismiss the action, allowing the prosecution to continue
would constitute double jeopardy under Oregon v. Kennedy,
456 U.S. 667 (1982).
   Prior to the start of their trial, defendants filed a motion
in limine to bar the government from referencing Troy
Martin’s incarceration. The district court conducted a
hearing on the motion in limine on March 31, 2006. The
government opposed the motion, reasoning that Martin’s
time in prison was intricately intertwined with evidence
of the charged crimes. They explained that Martin estab-
lished the street gang known as the Mafia Insane Vice
Lords while he was in prison in the late 1980s and early
1990s and that several of his activities in prison consoli-
dated the gang. According to the government, Martin
consolidated control of several other divisions of the
street gang known as the Vice Lords by working with
different members of the Vice Lords as they entered and
departed the Illinois state prison system. The government
argued that Martin’s actions in prison were “central to
the story” of the charged conspiracy.
  The intricately intertwined link notwithstanding, the
district judge granted Martin’s motion in limine, which
barred the government from referencing Martin’s incarcera-
tion. Instead, the judge suggested that the government
should explain that Martin was simply living somewhere
else at the time.
Nos. 06-2001, 06-2003, 06-2005 & 06-2108                     3

  On Monday, April 3, 2006, a jury was selected over the
course of the day and the trial began the following day. The
prosecutor’s opening statement lasted more than 90
minutes. During the opening statement, the prosecutor
made three references to Martin’s incarceration.1 The
remaining 13 references to Martin’s whereabouts during the
formation and development of the gang comported with the
district court’s pre-trial rulings.
  Once the prosecutor completed his opening statement,
defendant Martin moved for a mistrial based on the prosecu-
tor’s references to Martin’s time in custody. Martin’s
counsel stated,
    Judge, if I could, I guess I should at this point move for
    a mistrial because counsel, unfortunately, in the
    opening statement on two occasions made reference to
    Mr. Martin being in jail and being released from jail
    in 1998. I am sure this was not intentional. I am not
    making any kind of accusation.
Co-defendants Patrick Bray and Eddie Bell joined in
Martin’s motion for a mistrial.
  Immediately after Martin moved for a mistrial, the
prosecutor responded by explaining to the court that the
references were inadvertent and admitted that he made
a mistake. The government strongly opposed the motion for
a mistrial and argued that the government’s mistake could
be cured with a limiting instruction to the jury. The district
court took the matter under advisement over a recess. Once
the parties reconvened, the government again argued
against a mistrial. After considering the arguments, the


1
  After the government’s opening statement, the district court
and both parties believed that the government had referenced
Martin’s incarceration only two times. Upon further review, the
transcript revealed that the government referenced Martin’s
incarceration three times.
4                Nos. 06-2001, 06-2003, 06-2005 & 06-2108

district judge granted the motion for a mistrial, reasoning
that the trial was at a very early stage and she could not be
sure how prejudicial the information might be to the
defendant. The judge stressed, however, that she was
listening to the opening statement and concluded that the
prosecutor’s mistake was inadvertent. Regardless, she was
hesitant to go forward without knowing how prejudicial the
information could be to the defendants. After the district
court’s ruling, co-defendant Harry Gilmore joined in the
motion for a mistrial as well and the court granted his
motion. The district court advised the parties that a new
trial would start the following day.
  That evening, the government filed a motion to reconsider
the district court’s evidentiary ruling barring any reference
to the fact that Martin formed the Mafia Insane Vice Lords
while he was in prison. Meanwhile, defendant Bray filed a
motion to dismiss the indictment based on double jeopardy
grounds. In his motion, Bray argued that the government’s
reference in its opening statement to Martin’s incarceration
was intentional and was made so as to provoke the defen-
dants into moving for a mistrial. Bray’s co-defendants
joined in his motion to dismiss. Prior to the start of the
second trial on April 5, 2006, the district court denied the
motion to dismiss the indictments and reiterated her
finding that the prosecutor’s error was an inadvertent “slip
of the tongue.” She held that mistrials declared with the
defendant’s consent do not bar later prosecution. United
States v. Dinitz, 424 U.S. 600, 607 (1976). Even without
formal joinder, in this Circuit a defendant who fails to
object to a mistrial gives his or her implied consent to it.
Camden v. Circuit Court, 892 F.2d 610, 615 (7th Cir. 1989).
  The district court issued a minute order denying the
motion to dismiss the indictment on double jeopardy
grounds since all four defendants consented to the mis-
trial by either moving for the mistrial themselves or joining
in the motion after it was granted. The defendants indi-
Nos. 06-2001, 06-2003, 06-2005 & 06-2108                    5

cated their intent to file interlocutory appeals. All four
defendants filed written notices of interlocutory appeal and
the government moved to expedite the appeal due to the
pending trial date, which the district judge set for August
21, 2006. We granted the government’s motion and expe-
dited the appeal.
   We review a district court’s denial of a motion to dis-
miss an indictment on double jeopardy grounds de novo.
United States v. Lippitt, 180 F.3d 873, 876 n.4 (7th Cir.
1999); United States v. Asher, 96 F.3d 270, 273 (7th Cir.
1996). One of the main protections provided by the Double
Jeopardy Clause of the Fifth Amendment is that a defen-
dant has the right to have his trial completed by the first
jury empaneled to try him. Kennedy, 456 U.S. at 673. Yet,
it follows from that principle that if it is the defendant who
requests a mistrial, then he foregoes his right to a verdict
by the jury then empaneled, and the defendant cannot use
the Double Jeopardy Clause to avoid a second trial. United
States v. Doyle, 121 F.3d 1078, 1084 (7th Cir. 1997). The
Court does acknowledge an exception to this rule for those
cases where the prosecutor’s conduct “was intended to
provoke the defendant into moving for a mistrial.” Kennedy,
456 U.S. at 679. The key question is whether the prosecutor
deliberately introduced the error in order to provoke the
defendant into moving for a mistrial, and thereby rescuing
a trial going badly. United States v. Higgins, 75 F.3d 332,
333 (7th Cir. 1996). If that is the case, “the Constitution
treats matters as if the mistrial had been declared on the
prosecutor’s initiative,” and bars retrial. Id.
  In this case, the district judge concluded based on her
observation of the government’s opening statement that the
prosecutor made an inadvertent mistake. In a 90-minute
opening statement, the prosecutor’s references to Martin’s
whereabouts comported with the district court’s ruling 13
times. The judge found that the prosecutor’s references to
Martin’s incarceration were “slips of the tongue.” She held
6                 Nos. 06-2001, 06-2003, 06-2005 & 06-2108

that the prosecutor’s conduct was not intended for the
purpose of causing a mistrial.
   The initial perception of the opening statement shared by
the district court and defendants was that the prosecutor’s
mistakes were unintentional. Bray’s counsel even stated
when moving for a mistrial: “I am sure this was
not intentional. I am not making any kind of accusation.”
Before this Court, however, defendants argue that the
government’s persistent motions urging the district court to
reconsider its evidentiary ruling on Martin’s incarceration
illustrate the prosecutor’s true intent when he violated the
district judge’s ruling and further demonstrate the prosecu-
tor’s attempt to rescue a trial going badly. But the prosecu-
tor’s vigorous advocacy for his case does not translate into
a finding that he intentionally goaded defendants into
moving for a mistrial.
   Intent is a critical element to understand when determin-
ing if a prosecutor’s actions intentionally triggered the
mistrial. As Oseni explains, “[i]f after a criminal trial begins
the government decides that the case is going badly for it,
it cannot dismiss the case and reprosecute the defendant .
. . . it cannot engage in trial misconduct that is intended to
and does precipitate a successful motion for mistrial by the
defendant.” United States v. Oseni, 996 F.2d 186, 187-88
(7th Cir. 1993) (citing Kennedy, 456 U.S. at 676, 679). But
we held in Oseni that the element of intent is critical and
easily misinterpreted, “[t]he fact that the government
blunders at trial and the blunder precipitates a successful
motion for a mistrial does not bar a retrial.” Oseni, 996 F.2d
at 188. Unless the prosecutor is purposefully “trying to
abort the trial, his misconduct will not bar a retrial. It
doesn’t even matter that he knows he is acting improperly,
provided that his aim is to get a conviction.” Id. (citing
Kennedy, 456 U.S. at 675-76).
  Here the district judge carefully considered the prosecu-
tor’s conduct. The prosecutor explained that he made an
Nos. 06-2001, 06-2003, 06-2005 & 06-2108                    7

inadvertent mistake, and based on the district judge’s own
observation of the prosecutor’s demeanor, speech pattern,
and flow during his opening statement, the district judge
also concluded it was an inadvertent error. While the
prosecutor wanted the evidentiary ruling on Martin’s
incarceration to go the government’s way, he did not
want to abort the trial. In fact, he vigorously argued against
the defendants’ motion for mistrial, reasoning that the
mistake could be cured with a limiting instruction to the
jury.
  One way for a district court to resolve whether a prosecu-
tor intentionally provoked the defendant to move for
a mistrial is to hold an evidentiary hearing. Oseni, 996 F.2d
186, 189 (7th Cir. 1993). In this case, the district court
conducted an informal hearing and accepted argument from
both the prosecution and defense on the motion for a
mistrial. She did not, however, conduct a formal evidentiary
hearing as Oseni allows. Id. But an evidentiary hearing is
not a requirement. United States v. Jozwiak, 954 F.2d 458,
460 (7th Cir. 1992). Rather, the evidentiary hearing serves
as a backstop for the district judge if she is not, or a
reasonable judge would not be, satisfied with the prosecu-
tor’s explanation. See Oseni, 996 F.2d at 189.
  Here, the district judge was satisfied not only with the
prosecutor’s explanation, but also satisfied by what she
witnessed in overseeing the trial. Since she was satisfied
with the explanation, there was no need to hold an eviden-
tiary hearing to probe the prosecutor’s intent. We find that
the prosecutor’s conduct in the trial was not intended to
goad the defendants into moving for a mistrial. As a result,
the Double Jeopardy Clause of the Fifth Amendment does
not bar retrying the defendants.
  The government’s motion to reconsider the ruling on the
motion in limine remains pending in the district court. Of
course, as the concurrence points out, we cannot order
8                 Nos. 06-2001, 06-2003, 06-2005 & 06-2108

the district court to reconsider its ruling. Given how
intricately intertwined Martin’s activities in prison were to
the charged conspiracy and the multiple witnesses who
planned to testify concerning events that transpired while
Martin was incarcerated, we are confident that the district
court will carefully consider the pending motion. The
government argues that Martin began the gang from prison
and exercised control over the gang members from within
prison. It also contends the gang provided the structure and
organization for drug distribution, and that Martin’s efforts
from prison allowed him to assume control of a complex
drug conspiracy immediately upon his release from prison.
  Even if forewarned, lay witnesses could easily fall vic-
tim to what the district court deemed an inadvertent “slip
of the tongue” that befell the trained prosecutor on three
occasions in one opening statement. For example, the
government alleges that in the months before Martin’s
release from prison, he directed a gang member to visit
Martin while in prison, prepare gang territory for Martin’s
return, collect a “street tax” from drug operators, and give
the tax to Martin’s wife while Martin was incarcerated.
Recounting these and other alleged instances without
reference to Martin’s incarceration will undoubtedly
prove difficult for lay witnesses—and may indeed be an
unwieldy solution—and, if unsuccessful, could result in
another defense motion for a mistrial. District courts often
use limiting instructions to reduce the possibility that
unfair prejudice might result from the admission of certain
evidence, such as a defendant’s prior conviction. Of course,
the district court may reject the government’s motion to
reconsider, but if the district court decides to allow wit-
nesses to mention the fact of Martin’s incarceration, we see
no reason that the jury would need to hear such details as
the reason for Martin’s incarceration or its length.
    The district court is AFFIRMED.
Nos. 06-2001, 06-2003, 06-2005 & 06-2108                    9

  ROVNER, Circuit Judge, concurring. I concur in all but the
final two paragraphs of the majority’s opinion. I would not
address the merits of the district court’s discretionary
ruling on the motion in limine because that issue was
not raised by the parties and was not briefed. “Under
ordinary principles of the adversary system, we do not
reach out to decide questions not before us.” Bethea v.
Robert J. Adams & Assoc., 352 F.3d 1125, 1130-31 (7th Cir.
2003) (Cudahy, J., concurring in part and dissenting in
part) (citing Adam A. Milani & Michael R. Smith, “Playing
God: A Critical Look at Sua Sponte Decisions by Appellate
Courts,” 69 Tenn. L. Rev. 245, 273 (2002) (“Party identifica-
tion of the issues is at the core of th[e adversary] system
and ‘[t]he adversary process is no more starkly challenged
than when a court decides an issue not raised, for it
actually decides something other than what the parties
asked it to decide.’ ”)). Therefore, although I might have
ruled differently under the limited facts as we know them
in this interlocutory appeal, I am uncomfortable directing
the district court to reconsider the ruling that prevented the
prosecution from revealing Martin’s imprisonment. I see no
reason to address an issue that was neither briefed, argued,
nor appealed.
10             Nos. 06-2001, 06-2003, 06-2005 & 06-2108

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—7-24-06
