Wassall v. Ryan
705 F.2d 970
8th Cir.
1983
Check Treatment
ROSS, Circuit Judge.

Richard Douglas Wassail appeals from an order of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

Wassail was indicted for attempted rape on June 1, 1981. Prior to trial, the state court granted Wassail’s motion in limine and directed the state to avoid the issue of Wassail’s ancient arrest for child molestation until the court could rule on the particular question to be posed. At trial, Wassail called John Coll to testify as a character witness. During the cross-examination of Coll, the state mentioned the ancient arrest for child molestation. Wassail immediately requested a directed verdict of acquittal and a dismissal with prejudice; the court denied both motions. Wassail then asked for a mistrial, which was granted by the court. Before retrial, and after exhausting all state remedies, Wassail filed a petition *971for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. In the habeas petition, Wassail alleged that the prosecutorial misconduct was intended to provoke a mistrial and, as such, the Double Jeopardy Clause bars reprosecution. The district court denied Wassail’s petition for a writ of habeas corpus and held that the prosecutor did not intend to provoke a mistrial or to harass Wassail, but merely sought to bend the court’s order within permissible limits. We agree with the district court and accordingly affirm.

The issue on appeal is whether the Double Jeopardy Clause bars reprosecution of Wassail in light of the factual circumstances leading to the state court’s mistrial order.

Where a defendant successfully moves for a mistrial, the Double Jeopardy Clause generally does not bar reprosecution, United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978), even if the motion for a mistrial is necessitated by prosecutorial error. United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1970). However, retrial is barred where the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982). The Supreme Court in Kennedy, supra, announced that the language used in United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976) is no longer a proper standard to determine whether the Double Jeopardy Clause bars reprosecution. In Dinitz, supra, the Court stated that prosecutorial conduct that might be viewed as harassment or overreaching could be sufficient to bar re-prosecution under the Double Jeopardy Clause. In Kennedy, however, the Court stated that “prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. 102 S.Ct. at 2089. Thus, the standard under Kennedy calls for the court to make a finding of fact regarding the intent of the prosecutor.

The district court, in this case, specifically found that the prosecutor did not intend to violate the state court’s order in an effort to provoke a mistrial. The district court’s finding on lack of intent can only be overturned on appeal if it is clearly erroneous. See Fed.R.Civ.P. 52(a). We do not find that the district court erred in its determination of the facts of this case.

When, as in this case, the prosecutor’s conduct does not amount to an intent to subvert the protections afforded by the Double Jeopardy Clause, we hold that there is no bar to reprosecution. The order of the district court is affirmed.