U.S. v. Valadez-Camarena, VALADEZ-CAMAREN

Citation163 F.3d 1160
Decision Date11 December 1998
Docket NumberD,No. 97-2366,VALADEZ-CAMAREN,97-2366
Parties1999 CJ C.A.R. 73 UNITED STATES of America, Plaintiff-Appellee, v. Jose De Jesusefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Peter E. Edwards, Assistant Federal Public Defender (Ann Steinmetz, Federal Public Defender, with him on the briefs), Las Cruces, New Mexico, for Defendant-Appellant.

Paula Burnett, Assistant United States Attorney (John J. Kelly, United States Attorney, and Peter M. Ossorio, Supervisory Assistant United States Attorney, on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO and BRORBY, Circuit Judges.

SEYMOUR, Chief Judge.

In late October 1997, Jose de Jesus Valadez-Camerena was on trial for conspiracy, 21 U.S.C. § 846, and possession with intent to distribute over five kilograms of cocaine, 21 U.S.C. § 841(a)(1) & (b)(1)(A). In the middle of the trial, the government questioned an expert witness beyond the scope allowed by the judge. Mr. Valadez-Camarena moved for a mistrial, which was granted. He subsequently contended the Double Jeopardy Clause barred retrial because the prosecutor had goaded defense counsel into requesting a mistrial. After the district court held the prosecutor had not intended to provoke a mistrial, Mr. Valadez-Camarena was retried and convicted. He appeals, challenging only the district court's decision to allow a retrial. We affirm the conviction.

I.

In March 1997, Mr. Valadez-Camarena and a companion crossed the Mexican-American border and drove into the United States Border Patrol checkpoint south of Deming, New Mexico. After agents questioned him and noticed the strong smell of air freshener, they asked if they could further inspect his car. Mr. Valadez-Camarena consented, and the agents conducted a canine inspection which revealed packages of cocaine in hidden compartments of the car. A red leopard decal marked some of the cocaine packages and a red dove decal marked the others.

During the next two weeks agents stopped three other cars carrying cocaine in similarly constructed secret compartments. The cocaine packages from these cars were also marked with either the red leopard or the red dove decal. The government charged Mr. Valadez-Camarena and the other adults caught with the marked packages with conspiracy and possession with intent to distribute five or more kilograms of cocaine.

At Mr. Valadez-Camarena's trial, the prosecution offered Dr. Edward Fransoza, a senior forensic chemist at the Drug Enforcement Agency (DEA), as an expert witness to testify that, on the basis of microscopic inspection, the same devices created the decals on the separately seized packages. Counsel for the government and the court engaged in the following colloquy to determine the permissible parameters of the expert's testimony:

Mr. Ossorio: [Dr. Fransoza] is not going to say that [the decals] come[ ] from a particular drug trafficking group or a particular cartel or anything like that. It's more in the--it's simply in the area of basic tool mark identification, screening and printing processes whereby one process prints a logo and apparently the same device, whatever it is, a stamp or a screen prints the same logo on another piece of plastic.

The Court: So, basically, all of the loads that you have mentioned in your case in chief, he's going to address the markings on all of those and the packaging on all of those and express an expert opinion as to that they are all similar in packaging and the stamp comes from the same stamping equipment.

Mr. Ossorio: Exactly.

Rec., vol. 3, at 146. Defense counsel raised objections on relevancy grounds which the court overruled.

Dr. Fransoza explained that every time the government seizes cocaine packaging, the DEA investigates the markings on the packages and compares it to markings on packaging previously seized. If the DEA does not have a copy of the marking, it catalogs the new marking in its reference collection. Dr. Fransoza then testified that the red leopard on the packages found in Mr. Valadez-Camarena's car "came from the same device and therefore the same manufacturing source as the sample I took out of the reference collection to compare with ... except ... [t]he sample from the reference collection was printed in green ink, and this is printed in red ink." Id. at 161.

Soon thereafter, the court requested that counsel approach the bench and admonished the prosecutor for questioning the witness beyond the scope of what was tendered. The court and defense counsel were concerned that Dr. Fransoza's testimony about the green leopard already in the reference collection would seriously prejudice the jury by implying that defendant had been involved with drugs previously confiscated by the government. After excusing the jury, the court and prosecution engaged in the following exchange:

The Court: Why was it necessary to elicit testimony about the green reference leopard that he had in his computer independent of the loads that are the subject of this case?

Mr. Ossorio: Well, simply because that was the procedure that he always uses and that he used in this case, Your Honor.

The Court: And you don't see a problem with that Mr. Ossorio?

Mr. Ossorio: No, Your Honor, I don't.

Rec, vol. 3, at 165-66. After further discussion, defense counsel "mov[ed] for mistrial or in the alternative to strike all testimony of Dr. Fransoza." Id. at 168-69. The prosecution argued against a mistrial and asked instead for the court to give a limiting instruction. The court considered the matter and decided to grant the mistrial because it believed limiting instructions could not effectively cure Dr. Fransoza's prejudicial testimony.

A few days later, on November 3, 1997, Mr. Valadez-Camarena moved for a dismissal based on double jeopardy. 1 The court denied the motion, finding "absolutely no evidence of any attempt by the Government in this case to goad the Defendant into moving for a mistrial.... The prejudicial testimony elicited by the Government can, at best, be characterized as prosecutorial negligence or mistake." Brief of Aplt., Att. D at 1. Mr. Valadez-Camarena was subsequently tried and convicted.

II.

"The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense." Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (footnote omitted). Although the Double Jeopardy Clause usually bars retrial where the prosecution moves for a mistrial over the objection of the defense, in select circumstances it also prevents retrial where the first trial ended at the defendant's request. See id. at 672-73, 102 S.Ct. 2083. When a prosecutor " 'goad[s] the [defendant] into requesting mistrial' ... the defendant's valued right to complete his trial before the first jury would be a hollow shell" were retrial permissible. Id. at 673, 102 S.Ct. 2083 (quoting United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)); United States v. McAleer, 138 F.3d 852, 855-56 (10th Cir.1998). Therefore, if the government intended to provoke the defendant into moving for a mistrial, retrial is barred. See Kennedy, 456 U.S. at 679, 102 S.Ct. 2083. The Double Jeopardy Clause applies only where the prosecution intentionally goads the defense, not where the prosecution is mistaken, careless, or even harassing. See United States v. Powell, 982 F.2d 1422, 1429 (10th Cir.1992); United States v. Poe, 713 F.2d 579, 583 (10th Cir.1983).

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