dissenting:
I respectfully dissent.
The majority and I are in substantial agreement as to the basic rules which govern the outcome of this case: Ordinarily when a defendant has successfully requested a mistrial because of judicial or prosecutorial error, the Double Jeopardy Clause is no bar to his retrial. But if a defendant was deliberately provoked into requesting a mistrial, then the Double Jeopardy Clause prevents a retrial. See, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Holleman, Mistrials and the Double Jeopardy Clause, 14 Ga.L.Rev. 45 (1979). We differ, however, in how those rules are to be applied where, as in this case, there is more than mere judicial or prosecutorial error but less than a deliberate attempt by the government to provoke a mistrial. I think that, because defendant was the victim of deliberate misconduct on the part of a government agent who occupied a principal role in defendant’s initial prosecution, and because this misconduct provoked defendant’s successful motion for a mistrial, the Double Jeopardy Clause bars his retrial. To me, the constitution compels this result whether or not the government agent actually intended that a mistrial would result from his misconduct. I would hold that the motion to dismiss the indictment on the ground of double jeopardy should have been granted.
I.
As I read the district court’s findings, they are that Agent Dixon, not by agreement or plan of trial strategy arrived at with the Assistant United States Attorney who was trying the case1 but on his own motion, intentionally and • deliberately brought to the attention of the jury defendant’s prior criminal record. The district court also found that Agent Dixon intended his remark to have an effect on the jury. Although a strategy conceived on his own, this was no mere inadvertence or “blurt” as the majority suggests. Indeed, when all of the circumstances are considered, the findings of the district court may well have been charitable; the record gives strong indications that Dixon was deliberately vindictive.
The district court’s finding as to the deliberate character of the volunteered prejudicial testimony and its intended effect to hurt defendant has ample support in the record. Agent Dixon was a four-year veteran of the Drug Enforcement Administration. He had impressive credentials as a Metropolitan Police Department Officer in Washington, D. C., before joining DEA. Since joining DEA he had made over 150 arrests and participated in approximately 35 cases. Manifestly he was the agent in charge of the instant case; he sat at counsel table throughout the entire trial. Significantly, the government had been advised that defendant would not testify because of his record. Undoubtedly, as the agent in charge, Dixon had that knowledge.
When called as the government’s last witness, Dixon testified, inter alia, that heroin dealers will not distribute heroin through heavy users. The government’s other evidence had depicted defendant as a heroin distributor. Dixon’s attention was directed to an entry in a ledger indicating that defendant had- received a large amount of drugs for his personal use. Then defendant’s attorney began to question Dixon about the DEA form which was filled out when defendant was arrested. It showed that defendant was a heroin user. That fact had been determined by the .DEA agent who processed defendant by the routine examination of defendant’s arms for needle marks. Thus, by this point in Dixon’s testimony, he had significantly aided *931the defense: he had said that heavy heroin users would not be used as distributors, that defendant had received a large amount of heroin for his personal use, and that defendant was a user. To discredit Dixon entirely as a witness incriminating defendant, defense counsel asked Dixon if he was the agent who had arrested defendant. Dixon said that he was not. Dixon was then asked to step from the witness chair to counsel table to examine the DEA form to see who signed as the arresting officer. In oral argument, we were told without contradiction that this process took several minutes. When Dixon returned to the stand, he admitted that he had processed defendant at the U.S. Marshal’s Office, and he seized on this opportunity to add “He [defendant] was currently incarcerated for armed robbery.” 2
II.
The majority’s conclusion that the Double Jeopardy Clause does not proscribe a retrial on these facts rests upon two propositions: (1) Dixon was not a “prosecutor” within the meaning of the Dinitz rule, and (2) there was no finding that Dixon intended to cause a mistrial. I do not think that singly or in combination they support the majority’s result.
I cannot read Dinitz as limiting the rule it articulates only to bad-faith conduct by the prosecutor. Dinitz says that “[t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests . . . . ” (emphasis added) 424 U.S. at 611, 96 S.Ct. at 1081. Of course Dinitz also says that “bad-faith conduct by judge or prosecutor” bars retrials, Id. (quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)), but I would not read the latter as an exclusive enumeration. In any event, Dixon was functionally little different from the prosecutor in this case. He was closely intertwined with the prosecution: he processed defendant when he was arrested, arrested the leaders of the heroin ring, and, with his intimate knowledge of the case, was the agent who sat at counsel table and assisted in the trial of the case. While I agree that the prosecution should not be tarred with misconduct by every government witness, as, for example, a witness who is unconnected to the government or even a government agent who played a minor role in the case, it should not be able to escape the consequences of misconduct by one who plays a principal role in the prosecution. In this respect, I think Dinitz fully applicable.
The second purported escape hatch from Dinitz’s proscription is more troublesome. I accept as a fact that Dixon’s testimony was not a deliberate effort to precipitate a mistrial. Dixon made a malicious attempt to harm defendant; but, the district court found, he intended nothing more.
There is a division of authority over whether Dinitz forbids reprosecution when a mistrial is caused by governmental bad-faith conduct short of an intention to cause a mistrial or whether it merely forbids re-prosecution when the object of the misconduct was to cause a mistrial. The Fifth Circuit, in a series of decisions, has interpreted Dinitz as affording liberal protection against retrial in cases of deliberate government misconduct. For instance, in United States v. Kessler, 530 F.2d 1246, 1253-58 (5 Cir. 1976), the prosecution intentionally introduced a prejudicial false exhibit, and the defendant successfully moved for mistrial. The court acknowledged that under Dinitz retrial was normally permissible when trial ends on the defendant’s motion. But the court found that “[w]here ‘prosecutorial overreaching’ is present, the interests protected by the Double Jeopardy Clause outweigh the public interest in conducting a second trial ending in acquittal or conviction.” Id. at 1255-56. The court continued: “To find ‘prosecutorial overreaching,’ the Government must have, through ‘gross *932negligence or intentional misconduct,’ caused aggravated circumstances to develop which ‘seriously prejudice[d] a defendant’ causing him to ‘reasonably conclude that a continuation of the tainted proceeding would result in a conviction.’ ” Id. at 1256. Based on this double jeopardy analysis, the court held that the Double Jeopardy Clause forbade the defendant’s retrial, even though he had moved for mistrial. See also United States v. Weaver, 565 F.2d 129, 133 (8 Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978).
The Tenth Circuit, by contrast, has narrowly interpreted the language of Dinitz. In United States v. Nelson, 582 F.2d 1246 (10 Cir. 1978), cert. denied, 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 (1979), the prosecutor intentionally induced a DEA agent to testify that the defendant was a “major trafficker” in drugs, and the defendant moved for a mistrial which was granted. The district judge characterized the testimony as being as “reprehensible as any he had ever heard.” Id. at 1248. Nevertheless, the Tenth Circuit held that the Double Jeopardy Clause did not bar retrial.
The court followed an opinion by Mr. Justice Rehnquist sitting as a circuit justice in which the Justice permitted retrial where the defendant failed to show that the trial mistake “was committed by the prosecution or by the court for the purpose of forcing the defendant to move for a mistrial.” Id. at 1249 (quoting Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977). The Tenth Circuit concluded that the defendant must show that “the objectionable testimony ... was the product of a governmental scheme intentionally calculated to trigger the declaration of a mistrial.” 582 F.2d at 1249. Finding no such proof, the court saw no constitutional bar to the defendant’s second trial.
I am persuaded that the approach of the Fifth Circuit is the better view. Dinitz did recognize that at least one form of prosecutorial misbehavior would foreclose retrial. Dinitz did not discuss the situation presented here: extreme and deliberate governmental misconduct short of an intentionally stimulated mistrial. Gross governmental misbehavior is drastically different from mere prosecutorial or judicial error. Dinitz contains language which supports the Fifth Circuit’s distinction between mere error and “prosecutorial overreaching:”
[WJhere circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.
424 U.S. at 607, 96 S.Ct. at 1079 (quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (emphasis added). Justice Rehnquist’s opinion does not directly discuss egregious governmental misdeeds, although it admittedly supports the government’s position; in any case, it does not necessarily follow that the views of a single justice represent the views of a majority of the Court.
Moreover, the Fifth Circuit decision is more faithful to the policies behind the Double Jeopardy Clause. A second trial subjects a defendant to the anxiety and expense which accompanies multiple prosecutions. The Double Jeopardy Clause protects a defendant from this burden except where the societal interest in “fair trials ending in just judgments” outweighs the defendant’s interests. United States v. Kessler, 530 F.2d 1246, 1258 (5 Cir. 1976). When trial is brought to an end by egregious and deliberate misconduct of a government agent, the public interest in fair trials may not be served by retrial. If the prosecution has the chance to try its case more than once, its case becomes stronger through rehearsal and the likelihood of convicting an innocent defendant increases. Witnesses become more expert at relating their stories and more adept at fending off cross-examination. This case illustrates that double jeopardy concern. During the first trial, defense counsel was able to turn Dixon’s testimony to his client’s advantage. At a second trial, Dixon may well be more careful in his comments and make defense counsel’s task more difficult.
*933In addition, if the Tenth Circuit approach is adopted, it will be difficult to protect defendants even from intentionally stimulated mistrials. It is nearly impossible, as a practical matter, to prove what a prosecutor or government agent was thinking when he caused a mistrial. In almost every case, only malicious conduct will be apparent on the record. In this case, for instance, it may well be that Dixon, an experienced drug enforcement agent, knew that a mistrial would probably result from his reference to Green’s prior criminal record. Rather than merely trying to put another nail in defendant’s coffin so as to offset his own damaging admissions, Dixon may well have wanted to end trial so that he could get off the stand and have a second shot at testifying. He was unfortunately not interrogated about his motives, but in any event, no one can delve into his inner thoughts. These possibilities and the difficulty of proof persuade me that the prophylactic effect of the Fifth Circuit’s interpretation of Dinitz is the one we should follow.
In concluding that retrial of this defendant should be forbidden, I am fully aware of the public interest in the prevention, punishment and deterrence of crime. These are important considerations. Of equal, if not greater, importance is the principle that the government must deal fairly with those who are governed. The breach of fairness in this case, by one whose role was such a principal part of this prosecution, was so egregious that I would not permit defendant to be tried anew.
. In the colloquy following Dixon’s prejudicial statement and defendant’s motion for a mistrial, defense counsel stated that Dixon had a brief conversation with the prosecutor when Dixon went to counsel table to examine a record but that counsel did not claim that the prosecutor told Dixon to volunteer the prejudicial information. The prosecutor’s response was in effect a denial that he counselled the misconduct.
. In granting a mistrial, the district court remarked:
I think that this Agent certainly, with four and a half years with the DEA and five years before that with the Police Force in Washington, D.C., would know that such a statement would be impermissible.