444 F.3d 1007 (8th Cir. 2006), 05-2480, United States v. Washburn

Docket Nº:05-2480.
Citation:444 F.3d 1007
Party Name:UNITED STATES of America, Appellee, v. Donald K. WASHBURN, Appellant.
Case Date:April 20, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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444 F.3d 1007 (8th Cir. 2006)

UNITED STATES of America, Appellee,


Donald K. WASHBURN, Appellant.

No. 05-2480.

United States Court of Appeals, Eighth Circuit.

April 20, 2006

Submitted: Jan. 11, 2006.

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

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[Copyrighted Material Omitted]

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Diane M. Moore, argued, Jasper, GA (Stan Roush, Cedar Rapids, IA, on the brief), for appellant.

Ian K. Thornhill, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Donald Washburn appeals his conviction on ten counts of wire fraud, see 18 U.S.C. § 1343, and two counts of money laundering, see 18 U.S.C. 1956(a)(1)(B)(i). The

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charges stemmed from Mr. Washburn's efforts to procure money from six individuals for two enterprises: a dice game to be marketed to casinos and an effort to obtain an international grant for DNA storage. The government's first attempt to try Mr. Washburn ended when the district court1 declared a mistrial in response to the statements of a witness. His second trial ended in his conviction. The district court sentenced Mr. Washburn to a term of 27 months. Mr. Washburn challenges several aspects of his trial and sentencing. We affirm.


Before Mr. Washburn's first trial, the government sought permission to introduce evidence about another failed enterprise in which he was involved. The investors in this earlier enterprise reported losing more than $1 million. The government contended that this evidence was admissible under Federal Rule of Evidence 404(b) because it established both the intent to defraud and a pattern of deceitful financial transactions. The district court questioned the relevance of the information, but agreed to admit it with one condition: the government was not to refer to the amount lost in that enterprise because the district court believed that the $1 million figure was more prejudicial than probative. On the first day of trial, however, the government's third witness disclosed the $1 million amount while answering questions on direct examination. The defense moved for a mistrial, and the court granted the request. The court empaneled a second jury several months later, and the government convicted Mr. Washburn without using any of the Rule 404(b) evidence at issue in the first trial.

Mr. Washburn maintains that the government intentionally provoked the mistrial and therefore his retrial violated the fifth amendment. Because Mr. Washburn failed to object to his retrial, we review his double-jeopardy claim for plain error. See United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir. 1999). For Mr. Washburn to obtain relief under this standard, the error must be plain, it must have affected his substantial rights, and it must seriously have affected the fairness and integrity of judicial proceedings. United States v. Willis, 433 F.3d 634, 637 (8th Cir. 2006).

Reviewing the record in this case, we conclude that there was no double-jeopardy error of any kind. "When a defendant moves for a mistrial, the [double-jeopardy] doctrine does not bar retrial unless the prosecutor intentionally engaged in conduct designed to provoke the defendant's motion." United States v. Curry, 328 F.3d 970, 972 (8th Cir. 2003). The transcript from Mr. Washburn's first trial amply supports a finding that the government did not intend to elicit the information that led to the mistrial. The government had avoided any disclosure of the dollar amount when its two previous witnesses were on the stand. The federal prosecutor apologized to the court for the disclosure and said that he had instructed all of the witnesses not to get into specific dollar amounts. The transcript reveals that even Mr. Washburn's trial counsel, when moving for a mistrial, agreed that the government did not intentionally elicit the information:

MR. VAUGHN: Your honor, we have to object to this testimony and any further testimony on the part of this witness. Frankly, the Government has been very

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careful, and I've been very proud of the way they have presented these individuals and spoke in terms of "substantial amounts of money" and no dollar amounts have been mentioned. And out of the clear blue – I suppose I could have jumped up and said "I object," but I wasn't going to interrupt.

The record of the first trial does not reveal any evidence whatever of intentional misconduct designed to produce the mistrial. At most, the government made a mistake in questioning its witness. A mistake on the government's part that leads to a mistrial does not bar the retrial of the defendant. Id.


Before the first trial, Mr. Washburn filed a motion to strike several counts of the second superseding indictment. Specifically, Mr. Washburn contended that the government had improperly connected two separate enterprises (the dice game and the DNA grant) to construct one overarching scheme to defraud. The trial court agreed and dismissed the counts related to the dice game. The remaining case then proceeded to a trial which ended, as described above, in a mistrial.

Between the declaration of the mistrial and the beginning of the second trial, the government issued a third superseding indictment. That indictment again included the charges related to the dice game, but made clear that they were part of a separate scheme to defraud. Mr. Washburn argues on appeal that the reinstatement of the dice game charges amounted to prosecutorial vindictiveness that violated his due process rights. But because Mr. Washburn failed to object to the indictment before his retrial, we again review for plain error. See United States v. Walls, 293 F.3d 959, 970 (6th Cir.2002), cert. denied, 537 U.S. 983, 123 S.Ct. 454, 154 L.Ed.2d 346 (2002), 537 U.S. 1022, 123 S.Ct. 543, 154 L.Ed.2d 431 (2002); cf. United States v. Rodriguez, 414 F.3d 837, 841-42 n. 2 (8th Cir.2005).

Mr. Washburn has not presented any objective evidence of vindictiveness, nor has he established that the government's conduct warrants a presumption of vindictiveness, see United States v. Goodwin, 457 U.S. 368, 373-80, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); United States v. Punelli, 892 F.2d 1364, 1371-72 (8th Cir.1990). "[T]here can be no prosecutorial vindictiveness ... if some events or combination of events [would] indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to punish for the exercise of a right." United States v. Rodgers, 18 F.3d 1425, 1430 (8th Cir. 1994) (internal quotations omitted). Here the mistrial provided the government with an opportunity to obtain a superseding indictment that properly laid out the charges that the district court had dismissed as improperly pleaded. Even if Mr. Washburn's first trial had ended in a verdict, the government could have proceeded to prosecute him for the dice game charges. The fact that it pursued those charges at his retrial did not violate Mr. Washburn's due process rights.


Mr. Washburn challenges the sufficiency of the evidence to support his convictions. We will affirm a criminal conviction if, viewing the evidence in the light most favorable to the government, a reasonable juror could have found the defendant guilty beyond a reasonable doubt. United States v. Liner, 435 F.3d 920, 924 (8th Cir.2006), cert. denied, --- U.S. ----, 126 S.Ct. 1673, --- L.Ed.3d ---- (2006).

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Mr. Washburn contends that with respect to Counts 1-11, the government failed to prove any scheme to defraud on his part. He maintains that the transactions were nothing more than personal loans, freely given, that took him longer than he originally thought to repay....

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