683 F.2d 122 (5th Cir. 1982), 81-2351, United States v. Singleterry

• Citation: 683 F.2d 122
• Docket Number: 81-2364.,81-2351
• Date: 16 August 1982
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Guadalupe SINGLETERRY and Juan Antonio Singleterry, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio SINGLETERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 122

683 F.2d 122 (5th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jose Guadalupe SINGLETERRY and Juan Antonio Singleterry,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Juan Antonio SINGLETERRY, Defendant-Appellant.

Nos. 81-2351, 81-2364.

United States Court of Appeals, Fifth Circuit

August 16, 1982

Page 123

Richard W. Rogers, III, Corpus Christi, Tex. (court-appointed), for Jose G. Singleterry.

Roland E. Dahlin, II, Federal Public Defender, Karen K. Brown, Houston, Tex., Gustavo Acevedo, Laredo, Tex., Asst. Federal Public Defenders, for Juan A. Singleterry.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before BROWN, RUBIN and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

In a prior appeal, we reversed the convictions of brothers Juan and Jose Singleterry because the prosecutor improperly and repeatedly alluded to Juan's prior conviction while cross-examining Jose. United States v. Singleterry ("Singleterry I"), 646 F.2d 1014 (5th Cir. 1981). On remand, Juan and Jose filed a plea in bar, arguing that a new trial was barred by the constitutional prohibition against double jeopardy. The district court overruled their plea, and the brothers filed this pretrial appeal pursuant to 28 U.S.C. § 1291. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). We affirm and remand for trial.

The Supreme Court has recently written to clear up the confusion concerning the circumstances under which prosecutorial misconduct resulting in a mistrial will bar a second trial. In Oregon v. Kennedy, --- U.S. ----, 102 S.Ct. 2083, 2089, 72 L.Ed.2d ---- (1982), the Court has held that "(o)nly where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of Double Jeopardy to a second trial ...." ¹ The "existence or nonexistence of intent" to provoke a mistrial may be inferred "from objective facts and circumstances." Id.

I.

The government argues that Kennedy's "narrow exception" ² to the general rule that prosecutorial misconduct warranting a mistrial does not bar a retrial can have no application when the district court denies the motion for a mistrial. An appellate reversal for prosecutorial misconduct, the government contends, can never bar a retrial,

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even if the prosecutor intended to provoke a mistrial.

At first blush, the government's argument seems incongruous. When a defendant moves for a mistrial because of a prosecutor's misconduct, as Juan Singleterry did, see 646 F.2d at 1016, an appellate reversal based on that same misconduct seems equivalent to a determination that the district court erred in ruling on the mistrial motion. It seems anomalous to say that identical prosecutorial misconduct will create a constitutional bar to retrial when the district court correctly grants a mistrial, but not when the district court erroneously denies the mistrial request. ³

On the other hand, under Kennedy the double jeopardy clause is concerned only with prosecutorial misconduct that is intended to provoke a mistrial. When a mistrial is not declared, then the prosecutor's efforts have been unsuccessful. The dangers that the Kennedy exception was intended to prevent-that the defendant might lose his "valued right to complete his trial before the first jury," Kennedy, 102 S.Ct. at 2088, and that the prosecutor might be seeking a more favorable opportunity to convict, see id. at 2090 n.8, 2091; United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976)-are more attenuated when the defendant is convicted by the first jury but an appellate court reverses for prosecutorial misconduct. In such a case, the defendant has not lost his chance for an acquittal by the first jury, and it seems unlikely that any prosecutor would intentionally lay a basis for appellate reversal in order "to subvert the protections afforded by the Double Jeopardy Clause." Kennedy, 102 S.Ct. at 2089.

Moreover, the government's position finds some support in the case law. In explaining its adoption of a narrow double jeopardy bar in Kennedy, the Supreme Court argued that a broader bar might deter trial judges from granting mistrials in order to avoid potential double jeopardy problems. "If a mistrial were in fact warranted," the Court wrote, "the defendant could in many instances successfully appeal a judgment of conviction on the same grounds that he urged a mistrial, and the Double Jeopardy Clause would present no bar to retrial." Kennedy, 102 S.Ct. at 2090. Thus, the Court seemed to assume that reversal of a conviction for prosecutorial misconduct simply creates no double jeopardy bar. Cf. id. at 2095 n.22 (Stevens, J., concurring in the judgment) (recognizing that the Court made this assumption, but terming the assumption "irrational"). See also Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978) (dictum), discussed in United States v. Opager, 616 F.2d 231, 235-36 (5th Cir. 1980).

Extension of Kennedy's "narrow exception" to appellate reversals might affect appellate court review of convictions challenged on multiple grounds....