328 F.3d 970 (8th Cir. 2003), 02-3300, U.S. v. Curry

Docket Nº:02-3300
Citation:328 F.3d 970
Party Name:U.S. v. Curry
Case Date:May 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 970

328 F.3d 970 (8th Cir. 2003)

UNITED STATES of America, Appellee,

v.

Albert CURRY, Appellant.

No. 02-3300.

United States Court of Appeals, Eighth Circuit

May 6, 2003

Submitted: Feb. 11, 2003.

Rehearing and Rehearing En Banc Denied: June 12, 2003 [*].

Page 971

Gary G. Colbath, AFPD, argued, Rapid City, SD, for appellant.

Michelle Tapken, AUSA, argued, Sioux Falls, SD (Gregg S. Peterman, AUSA, Rapid City, SD, on the brief), for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Albert Curry was indicted on one count of sexual abuse in violation of 18 U.S.C. §§ 1153 and 2242. At the close of the government's case in chief, Curry moved for a mistrial, citing prosecutorial misconduct. The district court 1 reserved ruling on the motion. After the jury found him guilty, Curry again moved for a mistrial and for a new trial, alleging additional incidents of prosecutorial misconduct. The district court granted the motions. Shortly before his second trial was scheduled to commence, Curry moved to dismiss the indictment on double jeopardy grounds. The district court denied the motion, and we affirm.

Page 972

"As a general matter, a district court's order denying a defendant's motion to dismiss on double jeopardy grounds is a 'final decision' and [is] appealable under 28 U.S.C. § 1291." United States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995) (citing Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)). We have stated, however, that such an order is appealable "only if a colorable claim is made." United States v. Grabinski, 674 F.2d 677, 678 (8th Cir. 1982) (en banc) (per curiam). "A colorable claim requires a showing of previous jeopardy and the threat of repeated jeopardy." United States v. Abboud, 273 F.3d 763, 766 (8th Cir. 2001) (citing Grabinski, 674 F.2d at 679). To aid our review, we have asked district courts, "as a matter of practice whenever a motion to dismiss an indictment on double jeopardy grounds is denied, to make written findings on the issue of whether the motion is frivolous or non-frivolous." United States v. Dixon, 913 F.2d 1305, 1309 (8th Cir. 1990) (citing Grabinski, 674 F.2d at 679). If the district court finds the defendant's motion to be frivolous, the filing of a notice of appeal will not divest the district court of jurisdiction, and we will then review the appeal on an expedited schedule. Grabinski, 674 F.2d at 679.

We see nothing in the record indicating that the district court entered a written finding as to whether Curry's double jeopardy motion was frivolous. The record, however, does demonstrate that jeopardy attached in the first trial. "[J]eopardy attaches when a jury is empaneled and sworn, or, in a bench trial, when the judge begins to receive evidence." Dixon, 913 F.2d at 1309 (alteration in original) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)); see also Kress, 58 F.3d at 373 (rejecting government's claim that the lack of a specific written finding by district court as to frivolousness divests appellate court's jurisdiction). We are therefore satisfied that Curry has alleged a colorable double jeopardy claim. Accordingly, we have jurisdiction to review the merits of this claim. See Dixon, 913 F.2d at 1309; Grabinski, 674 F.2d at 680.

"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). "The double jeopardy doctrine, however, does not prevent all retrials after jeopardy attaches." United States v. Givens, 88 F.3d 608, 611 (8th Cir. 1996). When a defendant moves for a mistrial, the doctrine does not bar retrial unless the prosecutor intentionally engaged in conduct designed to provoke the defendant's motion. United States v. Washington, 198 F.3d 721, 724 (8th Cir. 1999); Kennedy, 456 U.S. at 673-76, 102 S.Ct. 2083. Thus, "[a]bsent 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. Beeks, 266 F.3d 880, 882 (8th Cir. 2001) (per curiam) (citations omitted).

In granting Curry's motion for a mistrial, the district court identified three instances of prosecutorial misconduct. The court first found that the prosecutor improperly withheld material impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See United States v. Nelson, 970 F.2d 439, 442 (8th Cir. 1992) ("Brady requires disclosure of all material evidence favorable to the accused, whether impeachment or exculpatory evidence, in the possession of the United States."). The court then determined that the prosecutor had made two...

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