IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-40475
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY SAMUEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:97-CR-120-2)
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March 5, 1999
Before JOLLY, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
In this direct criminal appeal, Defendant-Appellant Larry
Samuel insists that the district court erred in ordering a new
trial rather than entering a judgment of acquittal on grounds of
double jeopardy as the proper remedy for the mistrial caused by
prosecutorial misconduct during course of Samuel’s jury trial. The
foundation of Samuel’s double jeopardy argument in support of
*
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that this opinion should not be published and is not precedent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.
acquittal is the rule articulated by the Supreme Court in Oregon v.
Kennedy,1 that when a defendant’s well-taken motion for a mistrial
is based on prosecutorial misconduct that was intended to “goad”
the defendant to make such a motion, double jeopardy will bar a
second prosecution.2 When, during the course of a jury trial, some
conduct of the prosecution essentially leaves the defendant no
choice but to move for a mistrial, and leaves the trial court no
choice but to grant one, a contention by the defendant that such
conduct was intended by the prosecution to goad the defendant into
making a mistrial motion requires the trial court to review all the
objective facts and circumstances and make a finding of fact as to
whether the prosecution had such an intent.3 We will uphold the
district court’s factual finding on intent unless it is clearly
erroneous.4 In reviewing a finding by the district court whether
the prosecution’s misconduct that clearly entitles the defense to
a mistrial was undertaken with the intention of goading the defense
into making such a motion, we too examine that conduct in light of
the entire record to determine whether the trial court clearly
erred in its finding regarding intent to goad.
We have now completed such a record review and have considered
1
456 U.S. 667 (1982)
2
Id. at 678-79. See also United States v. Botello, 991
F.2d 189, 192-93 (5th Cir. 1993); United States v. Landerman, 109
F.3d 1053, 1068 (5th Cir. 1997).
3
See Kennedy, 456 U.S. at 675; United States v. Barcelona,
814 F.2d 165, 167-68 (5th Cir. 1987).
4
Barcelona, 814 F.2d at 168.
2
the district court’s finding in light thereof and in light of the
applicable law and the arguments set forth by opposing counsel in
their respective appellate briefs and in their oral argument to
this court. As a result of that consideration we are not left with
the distinct impression that the district court was wrong in
finding that the prosecution did not intend to goad the defense
into moving for a mistrial, that is, we do not conclude that the
court was clearly erroneous. It follows that this non-clearly
erroneous district court finding that the government’s misconduct
was not taken with the intent to goad the defense to move for a
mistrial obviates the need for a double-jeopardy judgment of
acquittal pursuant to the rule of Kennedy and its progeny.
Consequently, the rulings of the district court in declaring a
mistrial, rejecting acquittal, and ordering a new trial, are, in
all respects,
AFFIRMED.
3