United States v. Lopez-Avila
2012 WL 450314, 678 F.3d 955 (2012)
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Rule of Law:
The Double Jeopardy Clause does not bar retrial after a defendant-requested mistrial unless the prosecutor intended to 'goad' the defendant into moving for a mistrial; additionally, 28 U.S.C. § 530B (the McDade Amendment) subjects federal attorneys to state ethical rules but does not incorporate state constitutional interpretations of double jeopardy into federal proceedings.
Facts:
- Aurora Lopez-Avila attempted to enter the United States from Mexico at the Nogales Port of Entry, where customs officials found 9.7 kilograms of cocaine behind the back seat cushion of her car.
- Lopez-Avila initially pleaded guilty, and at her guilty plea hearing, a magistrate judge asked her, "Ms. Lopez, has anyone threatened you or forced you to plead guilty?", to which she responded "No."
- One month later, during a presentence interview, Lopez-Avila stated she had been "forced" to commit the offense, leading her counsel to successfully move to withdraw her guilty plea.
- At her subsequent trial, Lopez-Avila testified in her own defense, claiming she had been coerced to transport the drugs found in her car.
- During cross-examination, Assistant U.S. Attorney (AUSA) Jerry Albert intentionally misquoted Lopez-Avila's prior testimony from the guilty plea hearing, omitting the phrase "or forced you to plead guilty," making it appear she had denied being threatened at all, rather than only denied being threatened to plead guilty.
- Lopez-Avila then admitted under cross-examination that her earlier 'No' answer was a lie regarding her being threatened in the case, thus appearing to contradict her trial testimony about coercion.
Procedural Posture:
- Aurora Lopez-Avila was charged by indictment in federal district court with possession with intent to distribute cocaine.
- Lopez-Avila initially pleaded guilty, but later moved to withdraw her plea due to new information about coercion; the district court granted this motion.
- The case proceeded to trial, where AUSA Albert's misquotation occurred during cross-examination, leading defense counsel to move for a mistrial.
- The district court granted the mistrial.
- Following the mistrial, defense counsel moved to dismiss the indictment with prejudice on double jeopardy grounds in the district court.
- The district court denied the motion to dismiss, finding no evidence that the prosecutor intended to "goad" a mistrial.
- Lopez-Avila filed an interlocutory appeal challenging the district court's denial of her double jeopardy motion to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does the Double Jeopardy Clause, either under the Oregon v. Kennedy 'goading' exception or through the application of state constitutional double jeopardy standards via 28 U.S.C. § 530B, bar retrial after a defendant-requested mistrial provoked by a prosecutor's intentional misrepresentation of prior testimony?
Opinions:
Majority - Bea, Circuit Judge
No, the Double Jeopardy Clause does not bar Lopez-Avila's retrial under these circumstances because the prosecutor's misconduct, while serious, was not intended to "goad" the defendant into moving for a mistrial, and federal proceedings are not subject to state constitutional interpretations of double jeopardy via 28 U.S.C. § 530B. The court affirmed the district court's denial of the motion to dismiss on double jeopardy grounds, applying the standard from Oregon v. Kennedy, which holds that retrial is barred only when the governmental conduct was intended to "goad" the defendant into requesting a mistrial. The court found no clear error in the district court's factual finding that AUSA Albert's actions, though deliberate and improper, were a "strategy ... to attempt to convict the defendant," not to abort the trial. The court rejected Lopez-Avila's argument that 28 U.S.C. § 530B (the McDade Amendment) incorporates state constitutional double jeopardy standards into federal proceedings, clarifying that the statute applies to "rules ... governing attorneys" and not to substantive criminal law or constitutional rights of defendants. The court also emphasized that Department of Justice regulations (28 C.F.R. § 77.1(b)) confirm that § 530B does not alter federal substantive, procedural, or evidentiary law. While denying the double jeopardy claim, the court strongly condemned AUSA Albert's misconduct, criticizing the government's failure to take responsibility for the error. The court remanded the case for the district court to consider, under its supervisory powers, dismissing the indictment with prejudice and imposing disciplinary sanctions on AUSA Albert, and also noted that the Department of Justice's Office of Professional Responsibility has the responsibility to investigate such allegations, but stated it was not expressing an opinion on whether Albert should be disciplined.
Analysis:
This case reinforces the high bar set by Oregon v. Kennedy for invoking double jeopardy after a defendant-requested mistrial, specifically requiring proof of prosecutorial intent to provoke the mistrial, not merely bad faith or an intent to win by improper means. It clarifies that the McDade Amendment (28 U.S.C. § 530B) does not federalize state constitutional double jeopardy protections, making a critical distinction between rules "governing attorneys" and substantive criminal law. Furthermore, the opinion serves as a strong warning to prosecutors, signaling that appellate courts will not tolerate prosecutorial misconduct, even if it does not trigger double jeopardy, by empowering district courts to use their supervisory powers for deterrence and discipline.
