                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                        JAN 22 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10636

            Plaintiff - Appellee,                D.C. No. 2:10-cr-00458-JAM-3

   v.
                                                 MEMORANDUM*
KEVIN HAWKINS, Ket T. Hawkins,

            Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-10424

            Plaintiff - Appellee,                D.C. No. 2:10-cr-00458-JAM-3

   v.

KEVIN HAWKINS, AKA Ket T. Hawkins,

            Defendant - Appellant.

                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted January 13, 2015
                            San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WALLACE, M. SMITH, and FRIEDLAND, Circuit Judges.

      A jury convicted Kevin “Ket” Hawkins of one count of witness tampering,

but deadlocked on five sex-offense counts. The district court has not yet

sentenced Hawkins on the witness-tampering count or retried him on the five

sex-offense counts. Hawkins now appeals from district court orders denying

(1) his motion for a new trial on the witness-tampering count, (2) his motion to

dismiss the five sex-offense counts, and (3) his motion for release pending

sentencing on the witness-tampering count and release pending trial on the five

sex-offense counts. We dismiss in part and affirm in part.

      We dismiss Hawkins’s appeal from the district court’s denial of his motion

for a new trial. There is no final judgment against Hawkins. See Flanagan v.

United States, 465 U.S. 259, 263 (1984). Because Hawkins’s self-representation

claim is reviewable after a final judgment, see id. at 267-68, the collateral order

doctrine does not apply, see United States v. Hitchcock, 992 F.2d 236, 238 (9th

Cir. 1993). Thus, we lack jurisdiction over this appeal.

      We have jurisdiction over Hawkins’s appeal from the district court’s denial

of his motion to dismiss even though it is also interlocutory. We have appellate

jurisdiction over such appeals under the collateral order doctrine if they raise a


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colorable double jeopardy claim, see United States v. Price, 314 F.3d 417, 420 (9th

Cir. 2002), and Hawkins’s double jeopardy claim is colorable because it advances

a legal theory that is not foreclosed by existing precedent, see United States v.

Lewis, 368 F.3d 1102, 1108-09 (9th Cir. 2004).

      We affirm the district court’s denial of Hawkins’s motion to dismiss. Even

if we accept Hawkins’s contention that Oregon v. Kennedy, 456 U.S. 667 (1982),

applies here, Hawkins’s double jeopardy claim fails. To the extent that Hawkins’s

double jeopardy claim in the district court encompassed the FBI agent’s conduct,

we review the district court’s finding that there was no evidence of intentional

goading for clear error. See United States v. Lopez-Avila, 678 F.3d 955, 963 (9th

Cir. 2012). Hawkins’s claim then fails because the district court did not clearly

err in finding a lack of intentional governmental goading. To the extent that

Hawkins’s double jeopardy claim in the district court did not encompass the FBI

agent’s conduct, we review for plain error. See United States v.

Hernandez-Guardado, 228 F.3d 1017, 1028-29 (9th Cir. 2000). Hawkins’s claim

then fails because it is not “plain” that the FBI agent engaged in intentional

goading.

      Hawkins fares no better when he advances his double jeopardy claim under

                                          3
an ineffective-assistance-of-counsel theory. Because Hawkins could have been

retried even if his trial counsel had obtained a mistrial, see Kennedy, 456 U.S. at

675-76, Hawkins cannot show prejudice from trial counsel’s failure to do so, see

Strickland v. Washington, 466 U.S. 668, 694 (1984).

      We have jurisdiction over the district court’s detention order under 18

U.S.C. § 3145(c), and we affirm. Hawkins has not produced clear and convincing

evidence that he is not a danger to the community, as required for release pending

sentencing. See 18 U.S.C. § 3143(a). Because Hawkins is not entitled to release

pending sentencing on the witness-tampering count, we need not decide whether

he is entitled to release pending trial on the remaining counts.

      In sum, we DISMISS Hawkins’s appeal from the district court’s denial of

his motion for a new trial in No. 13-10636. We AFFIRM the district court’s

denial of Hawkins’s motion to dismiss in No. 13-10636 and the district court’s

detention order in No. 14-10424.

      No. 13-10636 DISMISSED in part; AFFIRMED in part. No. 14-10424

AFFIRMED.




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