Double Jeopardy Challenge to Retrial Rejected

U.S. v. Burciaga, 2015 WL 150344 (1/13/15) (N.M.) (unpub'd) (slip opinion here) - The 10th rejects a double jeopardy challenge to a retrial after the declaration of a mistrial. Mr. Burciaga testified at trial he pleaded guilty in other cases because he was guilty but didn't consider pleading guilty in this case because he was innocent. The following day on cross, the prosecutor asked: "If you say you refuse to accept a plea, why did your attorney propose a plea deal?" The defense objected. Judge Vazquez proposed a mistrial. The prosecutor opposed, saying he had an e-mail from defense counsel saying Mr. Burciaga would take a 5-year deal "in a heartbeat." The parties worked on a jury instruction, but ultimately the judge decided the question caused too much prejudice to be cured. The judge subsequently denied a defense motion to dismiss on double jeopardy grounds, contending the prosecutor deliberately caused the mistrial. The judge denied the motion, finding the prosecutor did not subjectively intend to force Mr. Burciaga to request a mistrial. The 10th acknowledged the question was more problematic than the classic prosecutor question: "What happened next?' But the record supported the judge's subjective-intent conclusion. Although the prosecutor was experienced, he just carelessly came to the conclusion after some inept research that Fed. R. Evid. 410 [prohibiting the admission of statements made during unconsummated plea negotiations] allowed the improper question. The prosecutor's remark during the first trial that he had to "fight and claw to get my case presented fairly," did not mean the government thought it had a weak case and would rather to try the case again. The prosecutor had an objective basis to believe the heroin distribution case was going well for the government. The fact that the government presented more incriminating evidence at the second trial than it did at the first didn't establish the prosecutor's bad motives either. Ultimately, the 10th says, it couldn't overturn the district court's view of the facts.