United States v. Lopez-Avila
678 F.3d 955
9th Cir.2012Background
- The government moved to amend the opinion to remove AUSA Jerry Albert’s name; the motion was denied but the opinion was amended.
- Albert misquoted the magistrate’s question during Lopez-Avila’s guilty plea, omitting the clause about being forced to plead guilty, which led to a mistrial.
- The district court declared a mistrial and denied a motion to dismiss the indictment with prejudice.
- Lopez-Avila appealed the denial of the double jeopardy dismissal, and the Ninth Circuit exercised jurisdiction over the interlocutory appeal.
- The Ninth Circuit affirmed denial of the double jeopardy dismissal, remanding for district court to consider supervisory-powers remedies (including possible dismissal with prejudice) and to refer to the Department of Justice’s Office of Professional Responsibility; §530B arguments were rejected.
- The court emphasized prosecutors’ obligation to avoid misconduct and noted that 530B does not alter Fifth Amendment double jeopardy doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does double jeopardy bar retrial after a mistrial for prosecutorial misquotation? | Lopez-Avila argues Kennedy goading applies to bar retrial. | The government contends Kennedy does not bar retrial; mistrial was not sought to coerce a mistrial. | No; retrial not barred under Kennedy; remand for potential supervisory remedies. |
| Does 28 U.S.C. § 530B affect the Double Jeopardy analysis in this case? | § 530B adopts state ethics rules and could apply Arizona’s double jeopardy interpretation. | § 530B does not change federal double jeopardy law; regulations confirm no automatic transposition. | § 530B does not alter Fifth Amendment double jeopardy standards. |
| Should the district court consider sanctions or dismissal with prejudice on remand? | Final disposition may require district court to exercise supervisory powers; possible dismissal with prejudice. | N/A (decision on remand scope) | Remand for district court to consider dismissal with prejudice or other supervisory-power sanctions; affirm denial of dismissal on double jeopardy grounds. |
Key Cases Cited
- Oregon v. Kennedy, 456 U.S. 667 (1982) (goading standard for mistrial and double jeopardy bar to retrial)
- Berger v. United States, 295 U.S. 78 (1935) (prosecutorial misconduct must be checked; shock to fair process)
- United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) (duty to prevent prosecutorial misconduct; responsible for fair win)
- United States v. Ziskin, 360 F.3d 934 (9th Cir. 2003) (standard for reviewing denial of double jeopardy claim; de novo/factual review)
- United States v. Alvarez-Moreno, 657 F.3d 896 (9th Cir. 2011) (collateral-order jurisdiction and colorable double jeopardy claim)
- United States v. Carranza, 289 F.3d 634 (9th Cir. 2002) (knowledge of contraband not required for possession)