266 F.3d 880 (8th Cir. 2001), 01-1734, United States v Beeks

Docket Nº:01-1734
Citation:266 F.3d 880
Party Name:UNITED STATES OF AMERICA, APPELLEE, v. BABATUNDE NATHANIEL BEEKS, APPELLANT.
Case Date:September 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 880

266 F.3d 880 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE,

v.

BABATUNDE NATHANIEL BEEKS, APPELLANT.

No. 01-1734

United States Court of Appeals, Eighth Circuit

September 20, 2001

Submitted: September 11, 2001

Rehearing Denied October 19, 2001

Appeal from the United States District Court for the Southern District of Iowa.

Page 881

[Copyrighted Material Omitted]

Page 882

Before Loken, Richard S. Arnold, and Fagg, Circuit Judges.

Per Curiam

In 1998, Babatunde Nathaniel Beeks was charged with conspiring to distribute crack cocaine. In questioning a witness near the end of Beeks's trial, the Assistant United States Attorney implied, in violation of a pretrial order, that Beeks had a criminal history. Beeks's motion for a mistrial was denied and the jury returned a guilty verdict. On appeal, we reversed Beeks's conviction and remanded the case for a new trial because of the prosecutor's improper questioning. United States v. Beeks, 224 F.3d 741, 748 (8th Cir. 2000). Beeks then pleaded guilty and was sentenced to 160 months in prison. Beeks now appeals his second conviction, contending that the second prosecution was barred by the Double Jeopardy Clause and that he is entitled to attorney's fees under the Hyde Amendment. Beeks also appeals his sentence, arguing the district court committed error when determining two sentencing factors: the quantity of drugs for which Beeks is responsible and his role in the conspiracy. We affirm the district court.[*]

Beeks first contends the second prosecution violated his double jeopardy rights. Depending on the circumstances, when a mistrial is declared on the prosecution's motion the Double Jeopardy Clause may protect the defendant from being tried again for the same crime. Arizona v. Washington, 434 U.S. 497, 505-506 (1978). In contrast, when a defendant's motion gives rise to a mistrial, reprosecution is prevented only if the prosecution's "conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial," and thus to make an end-run around the Double Jeopardy Clause. Oregon v. Kennedy, 456 U.S. 667, 675-76, 679 (1982). Absent intent to provoke a mistrial, a prosecutor's error in questioning a witness, improper remark in a closing statement, and even extensive misconduct do not prevent reprosecution. United States v. Valadez-Camarena, 163 F.3d...

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