dissenting:
I respectfully dissent.
The majority takes the position that the double jeopardy clause protects a defendant from retrial after intentional misconduct taints the original trial only if the prosecutor deliberately tried to provoke a mistrial. I do not believe that the protection afforded by the double jeopardy clause is so narrow. This case presents a prime example of intentional prosecutorial overreaching which should bar retrial even without a finding of intent to provoke a mistrial.
The prosecutor’s conduct, set forth in the majority opinion, was in blatant disregard of the stricture against vouching for a witness in appealing to the jury to return a conviction. The prosecutor knew he had a tough case; guilt or innocence turned on whether the jury believed the prosecution’s witness or the defendant. In going outside the record, exhorting the jury to believe his witness instead of the defendant because detective Sellers had been sitting in the courtroom ready to revoke the witness’s plea agreement if he lied, the prosecutor made a mockery of the rules of fair jury argument. Moreover, he completed his transgression in disregard of an admonition by the trial court.
I.
I believe that such flagrant prosecutorial overreaching would bar a retrial following a mistrial.1 The Supreme Court has strongly indicated that the double jeopardy clause protects defendants from bad faith prosecutorial misconduct intended to illegitimately increase the likelihood of a guilty verdict. Although the majority reads United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 *229L.Ed.2d 543 (1971) and United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), to require that the prosecutorial misconduct be done for the purpose of triggering a mistrial, the language of those cases will not permit such a narrow reading. Jorn states that “where a defendant’s mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred.” 400 U.S. at 485 n.12, 91 S.Ct. at 557. (emphasis added). Dinitz contemplates a bar to retrial whether the act taken in bad faith is done “in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal.” 424 U.S. at 611, 96 S.Ct. at 1081 (emphasis added). Accord, Lee v. United States, 432 U.S. 23, 33-34, 97 S.Ct. 2141, 2147-2148, 52 L.Ed.2d 80 (1977).
Most lower courts have read these cases to bar retrial where the judge or prosecutor knowingly engages in misconduct with the intention of prejudicing the defendant’s chances for acquittal and there is, in fact, serious prejudice.2 See United States v. Zozlio, 617 F.2d 314, 315 (1st Cir. 1980); United States v. Opager, 616 F.2d 231, 233-34 (5th Cir. 1980); Drayton v. Hayes, 589 F.2d 117, 121 (2nd Cir. 1979); United States v. Martin, 561 F.2d 135, 138-40 (8th Cir. 1977). But see United States v. Nelson, 582 F.2d 1246, 1249 (10th Cir. 1978). This is precisely our case.
The recent Second Circuit per curiam opinion, Mitchell v. Smith, 633 F.2d 1009 (2nd Cir. 1980), illustrates the correct reading of the Dinitz line of cases. The court noted that the rule in the Second Circuit is that prosecutorial overreaching will bar retrial after a mistrial if it was “ ‘motivated by bad faith or undertaken to harass or prejudice’ ” the defendant. Mitchell, supra, 633 F.2d at 1011, quoting Drayton v. Hayes, supra, 589 F.2d at 121, quoting Lee v. United States, supra, 432 U.S. at 33-34, 97 S.Ct. at 2147-2148. Applying this standard, the court examined “whether the prosecutor’s error was intentional or merely inadvertent.” 633 F.2d at 1012.
The Ninth Circuit cases cited by the majority do not hold to the contrary. United States v. Calderon, 618 F.2d 88 (9th Cir. 1980), involved not intentional prosecutorial misconduct, but mere inadvertent error. Calderon does state in dictum that retrial is barred if the prosecutor has goaded the defendant into requesting a mistrial, but does not discuss the situation where the prosecutor’s knowing misconduct was intended to prejudice the defendant. Id. at 89-90. Neither does Calderon discuss the applicable Supreme Court precedent. Id. Moroyoqui v. United States, 570 F.2d 862 (9th Cir. 1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1651, 56 L.Ed.2d 86 (1978), likewise involved inadvertent misconduct and likewise failed to discuss our issue. Id. at 864.
The majority offers no reasons why prosecutorial overreaching intended to prejudice the defendant should be treated differently than prosecutorial overreaching intended to provoke a mistrial. I see no good reason to distinguish one from the other. Both implicate long established double jeopardy concerns. An intentionally provoked mistrial implicates the “valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him.” Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963). Overreaching intended to prejudice the defendant not only taints the judgment of the defendant’s “particular tribunal,” it enhances “the possibility that even though innocent he may be proven guilty.” United States v. Dinitz, 424 U.S. at 606, 96 S.Ct. at 1079.
Moreover, the two are often inextricably intertwined. A mistrial is provoked only by greatly prejudicing the defendant. Therefore, the intention to provoke a mistrial includes the intention to prejudice the defendant, while the intention to prejudice the defendant includes a willingness to risk a mistrial. Thus it will be very difficult for a trier of fact, when faced with a case of prosecutorial overreaching, to discern which *230of the two intentions was uppermost in the prosecutor’s mind. The great mischief of following the majority’s rule is that courts will rarely find that prosecutorial overreaching was intended to provoke a mistrial because there will be insufficient evidence that the prosecutor did not “merely” intend to prejudice the jury and so gain a guilty verdict.
The facts of this cases squarely present the issue whether the double jeopardy clause protects defendants from prosecutorial misconduct intended to illegitimately bolster the chances for conviction.3 If this appeal had followed a mistrial, I would follow the Second, Fifth and Eighth circuits and the Supreme Court dictum in Dinitz and Lee by holding that retrial is barred where the prosecutor acts in bad faith to prejudice the defendant’s prospects for an acquittal.
II.
The difficult issue that remains is whether the double jeopardy protection against bad faith prosecutorial overreaching which results in a mistrial applies when the overreaching results in a conviction which has been reversed on appeal. So far as I know, this is a question of first impression. See United States v. Phillips, 600 F.2d 186, 187 n.2 (9th Cir.) (per curiam), cert. denied, 444 U.S. 863, 100 S.Ct. 131, 62 L.Ed.2d 85 (1979); United States v. Opager, 616 F.2d 231, 235-36 (5th Cir. 1980). Unfortunately, due to the abbreviated briefing schedule allowed for this Abney appeal and the lack of oral argument, this issue is not adequately addressed by any party. Indeed, the defendants have not addressed the issue at all. I will not attempt a full analysis of the issue here, or even hazard an opinion on the proper resolution, but I will sketch the reasons why this issue is quite difficult and deserves full briefing and oral argument.
On the one hand, there is dicta in the recent Supreme Court cases Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) which states in general terms that reversal for trial error does not bar retrial. Although dicta, these generalized statements cannot be blithely disregarded. There is some room for doubt, however, whether these statements were meant to apply to the situation of bad faith prosecutorial overreaching. See United States v. Opager, 616 F.2d 231, 236 nn.13-14 (5th Cir. 1980). The normal rule that a mistrial requested by the defense does not bar retrial is subject to an exception for intentional prosecutorial overreaching. Absent clarification by the Supreme Court, it remains unsettled whether the normal rule concerning reversal for trial error is not similarly subject to an exception for intentional prosecutorial overreaching.
There are several doctrinal considerations that support finding such an exception. First, the Supreme Court has announced that one important consideration in double jeopardy cases is to avoid a result which would “create a purely arbitrary distinction” between defendants who enjoyed a correct decision on a motion to end the proceedings in the trial court and those who did not. Burks, supra, 437 U.S. at 11, 98 S.Ct. at 2147. In Burks, the distinction would have been between an acquittal which would bar retrial and a conviction reversed on appeal for insufficiency of the evidence. In the situation of bad faith prosecutorial overreaching, if all reversals for trial error allow retrial, a defendant who makes a meritorious motion for mistrial will not face retrial if the motion is *231granted, but will face retrial if the motion is erroneously denied and the following conviction is reversed on appeal.
Second, intentional prosecutorial misconduct strongly implicates a number of the defendant’s double jeopardy interests. Intentional misconduct is more likely to be highly prejudicial and so to cause an inaccurate jury verdict. The prosecutor thus illegitimately increases the likely expense, embarrassment, and ordeal the defendant will have to suffer, as well as the possibility that the defendant, although innocent, will ultimately be found guilty. Just as the retrial bar is used to deter prosecutors from requesting unnecessary mistrials and so damaging the defendant’s double jeopardy right to his particular tribunal, see generally Jorn, supra, 400 U.S. at 479-86, 91 S.Ct. at 554-557; Dinitz, supra, 424 U.S. at 606-12, 96 S.Ct. at 1079-1082, it may be necessary to bar retrial after reversal for intentional prosecutorial misconduct to protect the defendant’s other double jeopardy concerns.
I believe that we should not presently decide this difficult issue. Because of the rushed nature of this appeal, the briefs are inadequate and there has been no opportunity to supplement the briefs by discussion of the issue in oral argument. Appellants’ briefs fail to discuss the reversal situation, concentrating on the mistrial exception. Appellee’s brief is so cursory as to be totally unhelpful. I would order the parties to rebrief the issue whether retrial is barred after reversal for intentional prosecutorial misconduct, and would also set a date for oral argument.
Accordingly, I dissent.
. Since the majority, while discussing the extent to which the double jeopardy clause protects against prosecutorial overreaching, cites only to cases concerning retrial after a mistrial, the discussion in Part 1 of my dissent analyzes the mistrial cases. Because I conclude that retrial should be barred for intentional prosecutorial overreaching, it is necessary in Part II to reach the issue whether retrial is barred when a conviction tainted by intentional prosecutorial overreaching is reversed on appeal.
. This court has already found the prosecutor’s conduct in this case to be prejudicial error. United States v. Roberts, 618 F.2d 530, 533-35 (9th Cir. 1980).
. The majority in its concluding paragraph states that it declines to extend the retrial bar to gross negligence cases. I find this statement puzzling. This is clearly not a gross negligence case. The majority correctly states that the prosecutor engaged in intentional misconduct and that the prejudice was material. It is clear from the record that the prosecutor vouched for his key witness, knowing his remarks to be improper and contrary to the ruling of the trial judge, for the purpose of prejudicing the jury and increasing the chance for conviction. The issue in this case is not whether the defendant must show intent or just gross negligence, it is whether the defendant must show intent to provoke a mistrial, or just intent to harass and prejudice the defendant.