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.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:01-CR-36-ALL)
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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that this opinion should not be published and is not precedent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