The government appeals from the district court’s dismissal of the indictment against Frank Gonzales. We have jurisdiction under 18 U.S.C. § 3731 if double jeopardy does not bаr the appeal.
United States v. Hunt,
Background
Frank Gonzalez and his co-defendant, Miguel Espinoza, were charged with (1) conspiracy to distribute and possess with intent to distribute heroin and coсaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; (2) distribution and possession with intent to distribute heroin and cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 18 U.S.C. § 2; (3) interstate travel with intent to promote and carry on drug trafficking, 18 U.S.C. §§ 1952(a)(3), 2; аnd (4) criminal forfeiture, 21 U.S.C. § 853. On the first day of Mr. Gonzales’ trial, the government’s second witness, FBI Special Agent Kevin Gui-dry, testified that he and another agent began surveillance of Mr. Espinoza in San Jose, California on the morning of August 9, 1997. Ill R. at 90. Mr. Espinoza boarded an airplane bound for Denver, Colorado, which Agent Guidry and thе oth *1203 er agent also boarded. Id. at 91. Upon arriving in Denver, Agent Guidry and a Denver agent followed Mr. Espinoza throughout the greater Denver area. Id. at 92-93. Mr. Espinoza stopped аt a strip mall where a Ford Thunderbird with California license plates was waiting. Id. at 94. 1 At this point in Agent Guidry’s testimony, the following colloquy between the assistant United States аttorney and Agent Guidry occurred:
Q. Very well. Tell us what you personally observed when you approached this strip mall.
A. I noticed a maroon Ford Thundеrbird with California plates 3TST751, which is well-known to me from investigation—
MR. WILLIAMSON [counsel for Mr. Gonzales]: Your Honor, I’m going to object to this.
THE COURT: Right. Just answer the question, Agent. I think you 'know bеtter than this.
A. I observed a maroon Thunderbird.
Q. What was the license plate number? A. 3TST751.
Q. Still remember it?
A. Yes.
Q. Had you seen that red Thunderbird before?
A. Yes, I had. In the San Jose, California/Watsonville, California area.
Q. Where was it when you saw it?
A. It was in the strip mall towards the end of the strip mall.
Q. Well, I mean, in the Watsonville/Sа-linas, California area?
A. I’m not sure what you’re—
Q. You’ve just testified that you had seen that red Thunderbird before.
A. Yes.
Q. Okay. Let’s go — let me clarify this. Where had you seen it before?
A. I had seen it in conjunction with a drug investigation.
Id. at 94-95. At this point, counsel for Mr. Gonzales objected and moved for a mistrial, which the government opposed. Id. at 96, 98-103. The district court granted the motion, id. at 102, and later granted Mr. Gonzales’ motion tо dismiss the indictment with prejudice. V R. at 96.
Discussion
On appeal, the government argues that the district court dismissed the indictment based upon an incorrect legal analysis concerning prosecutorial intent. We review this issue de novo.
2
United States v. Valadez-Camarena,
The general rule is that the Double Jeopardy Clause does not bar retrial where a defendant moves successfully for a mistrial. A narrow exception exists where “the conduct giving rise to the successful motion for a mistrial wаs
intended to 'provoke the defendant into moving for a mistrial.” Oregon v. Kennedy,
At the hearing on Mr. Gonzales’ motion to dismiss, the district court heard testimony from the government agent assigned to the ease and Agent Guidry. V R. at 6-64. After considering this testimony, the
*1204
government’s opening statement, and the colloquy between thе assistant United States attorney and Agent Guidry, the court found that the government had persisted in introducing to the jury highly prejudicial evidence that the Thunderbird had been seen in connection with a drug investigation.
3
Id.
at 89-96. This conduct, the court concluded, was a result of careful planning and coordination between the government and Agent Guidry.
Id.
at 94. From this evidence of prosecutorial overreaching, the court relied upon
United States v. McMurry,
The district court’s analysis was incorrect. To the extent it allowed an inference of prosecutorial intent to force a mistriаl in the absence of objective evidence, the analysis was contrary to
Kennedy
and our precedent, including
McMurry,
In
Kennedy,
the Supreme Court drew the distinction between evidence of prose-cutorial overreaching and prosecutorial intent to force a mistrial. The district court did not recognize or apply this obvious and critical distinction. “Prosecutorial conduct that might be viewed as ... overreaching, even if sufficient to justify a mistrial on defendant’s motion, ... does nоt bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.”
Proseсutors intend to secure convictions, intend to secure all advantages the adversary system allows. An overstep ... may lead to howls from the defense, and next to an argument that the overstep was intended to goad the adversary into howling. Yet a search for intent that leads only to a conclusion that the prosecutor wanted to win is pointless. We must be looking for intent to do something that undercuts the interests protected by the double jeopardy clause. Kennedy distinguishes intent to improve the chance that the trier of fact will return a favorable decision from the forbidden intent to avoid decision by the trier of fact.
The practical implications of the district court’s analysis of intеnt in this context also merit discussion. By focusing on the natural and probable consequences of prosecutorial conduct rather than the intеnt underlying such conduct, the standard
*1205
employed by the district court would, as the government argues, “convert
Kennedy
’s narrow exception into the rule.,.. ” Aplt. Br. at 16. That is, under the district court’s reading of
Kennedy, any
prosecu-torial conduct that induces the defendant to request a mistrial could bar retrial. Indeed, as the govеrnment observes, under this reading of
Kennedy,
“many cases — including
Kennedy
itself — would have been decided differently.”
Id.
at 18. In
Kennedy,
for example, retrial would have been prohibited because a mistrial was unquestionably the natural and probаble consequence of the prosecutor’s question as to why the witness had filed a criminal complaint against the defendant— “Is that because he is a crook?”
In the alternative, Mr. Gonzales argues that the district court’s dismissal should be affirmed because the distinct court could have dismissed the indictment by exercising its supervisory power. Aplee. Br. at 24-29. Although we are unpersuaded by Mr. Gonzales’ argument that the district court would employ such a draсonian sanction, we decline to consider whether the district court would have exercised its supervisory power to dismiss the indictment because such exercise is an act of discretion that must, of course, be exercised within the confínes of the correct law.
United States v. Lin Lyn Trading, Ltd.,
REVERSED AND REMANDED.
Notes
. The government argued in its opening statement that Mr. Gonzales had driven the Ford Thunderbird from Salmas, California to the strip mall within the past 24 hours. Id. at 3-4, 10-11. 8.6 pounds of heroin and 6 pounds of powder cocaine were found behind the firewall of the Ford Thunderbird. Id. at 4, 8-10.
. Bеcause we reverse the district court’s dismissal of the indictment on this point of law, we do not reach the government’s alternative argument that the district court's finding that the government intended to goad the defendant into requesting a mistrial was clearly erroneous.
. We do not decide whether the prosecution intended to introduce evidence that the Ford Thunderbird was seen in connection with a drug investigation and whether such evidence was prejudicial.