945 F.3d 470
6th Cir.2019Background
- Ray Foster was investigated for methamphetamine distribution; police found drugs, distribution materials, and incriminating statements after searching his home.
- A grand jury returned a multi-count indictment; Foster faced a conspiracy count (Count 1) and a possession-with-intent count (Count 13).
- Foster proceeded to trial representing himself; the prosecution repeatedly elicited out-of-court statements from an agent repeating unnamed informants—statements the agent lacked personal knowledge of and that implicated Confrontation Clause problems.
- The district court found numerous Sixth Amendment violations, denied that a jury instruction could cure the harm, and granted Foster’s motion for a mistrial after the prosecution conceded a curative instruction likely would not suffice.
- Foster moved to dismiss the indictment on double jeopardy grounds, arguing prosecutors intentionally provoked the mistrial; the district court denied the motion, finding no evidence of prosecutorial intent to cause the mistrial.
- Foster later pled guilty to Count 1, reserved his right to appeal the double jeopardy ruling, and the Sixth Circuit affirmed the district court’s denial of dismissal.
Issues
| Issue | Foster's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether retrial is barred by the Double Jeopardy Clause because prosecutors intentionally provoked a mistrial | Prosecution deliberately elicited inadmissible informant testimony to goad Foster into requesting a mistrial so government could retry the case | Prosecution conceded misconduct but denied intent to provoke a mistrial and argued it sought to continue the trial | Affirmed: no double jeopardy bar—district court’s finding of no prosecutorial intent was not clearly erroneous |
| Whether prosecutorial misconduct alone (absent intent) bars retrial | Pattern of repeated Confrontation Clause violations demonstrates sufficient bad faith to bar retrial | Misconduct alone is insufficient; intent to subvert Double Jeopardy protections is required | Held: misconduct without intent does not bar retrial; intent is the touchstone |
Key Cases Cited
- Oregon v. Kennedy, 456 U.S. 667 (explains when retrial after a defendant-requested mistrial is barred by double jeopardy)
- United States v. Dinitz, 424 U.S. 600 (prosecution that goads defendant into moving for mistrial can trigger double jeopardy bar)
- Arizona v. Washington, 434 U.S. 497 (discusses manifest necessity standard for retrials when government requests mistrial)
- United States v. Cromer, 389 F.3d 662 (6th Cir.) (case the government cited regarding admissibility issues referenced during trial)
- Phillips v. Court of Common Pleas, Hamilton Cty., 668 F.3d 804 (6th Cir.) (rejects claim that prosecutorial overreaching alone, absent intent, bars retrial)
- United States v. Koubriti, 509 F.3d 746 (6th Cir.) (discusses double jeopardy protection against retrial after prior proceedings)
- Gamble v. United States, 139 S. Ct. 1960 (reaffirms double jeopardy principles regarding retrial and protections against successive prosecutions)