good morning your honor may it please the court counsel i'm krista hart i represent mr hawkins my goal is to reserve three minutes for rebuttal argument and first there are two cases on calendar this morning one addresses the double jeopardy issue the other is the bail issue based on the questions that the court asked us to consider i'm going to focus on the double jeopardy issue if the court has any questions that they only should we can address tho to the court's questions the first question whether the double jeopardy claim that mr hawkins presents on appeal has to waive your forfeited because hawkins failed to present that claim in district court it's my position that the claim was clearly raised the pleadings themselves are a bit less than clear but it was clearly raised keating's themselves are addressed as a motion to dismiss based on double jeopardy within the pleadings themselves he addresses both the what he perceives as the press the carroll misconduct and also what he believes perceives as in this conduct on behalf of the agent so it's our position that it was clearly raised in the district court counsel from my perspective let's assume for a moment that you're right it was probably raised what i'm struggling with is the issue of whether there's evidence to show that the government goaded him into seeking a mistrial can you help me with what what evidence is there to that issue what we have to focus on is what actually occurred during agent shelton's testimony and it's circumstantial but it is evidence because there's really no other explanation for it so the first question that we have to address is whether agent shelton is considered part of the government as that phrase is used in the kennedy case and because the kennedy case did not misconduct they said government conduct generally it's our position that agent shelton as the case agent as the agent who had investigated this from the beginning prepared for trial was the case surprised about what was apparently this or that volunteered did not know that that was what was going to be said according to what she said what do you make of that well i think what is to be made of that is the fact that agent sit in on the trial from the very beginning she watched how the case was progression she saw that during the government's second witness the cooperating codefendant mr moore during his testimony the government inadvertently opened the door to the admission of some evidence that had previously been not i'm sorry not evidence but open the door to an affirmative defense of mistake of age that previously had been excluded so while prior to trial the government had successfully defeated the motion to present the stake of age defense as to counts one and two during the course of the second witness based on the government's questions the district court changed its ruling and said i am now going to allow in the state of age defense as to counts one and two so that was the significant change in the government's case next when the complaining witness testified on cross examination she repeated i've lost count of how many times that it was essential for her to convince all of the people that she worked with that she was over the age of eighteen and that she in fact attempted to convince the cooperating codefendant mr moore that she was over the age of eighteen and she also attempted to convince mr hawkins that she was over the age of eighteen so now we've got the change in the ruling considering the mistake of age defense we've got the cooperating i'm sorry the complaining witness who is on cross examination is essentially making the case mistake of age defense and so it's our position that agent shelton understood that the government's case was not going particularly well trained in the law she was an i agent i don't know what her degree was that got her into the f b i that's not wasn't made part of the record before below so i'm not aware of that you're asking us to assume that because she's an f b i agent that she must been an understanding that you need to say what you need to say and garbage about what you're saying yes because this is not some arcane or some subtle nuance of the law this is the fifth amendment right to remain silent which anyone who participates in american society is aware of the miranda warnings you have the right to marry main silent nothing you say can or will be used against you in a court of i asked the judge to do the initially there was some discussion about what was what would be what is the what is the trial court move the district judge not what was discussed what was the motion asked for ultimately just on television it's context is necessary here because when the trial and i've read the briefs i've read the record and the question please he said something to the effect of having that in mind meaning what the court said having that in mind my position is to strike agent shelton's testimony ok but he i say he prefaced that with having that in mind because he was relying assume yes it just records judge explicitly said there is no way to cure that there except for granting in this trial and then after some discussion the judge said look we have spent so much time in this trial this was going to be your last i believe the ninth witness your last witness i would like to salvage this trial how would if we do this we'll strike the testimony if there's a conviction i'll grant a motion for a new try i may he did say i could i could grant the motion but that i mean a judge's ability to grant a motion for a new trial exist irrespective of anything that he or she says on the bench so there was a reason he said that you tell them what they can do down the road if there's a real problem that's not a big deal worse than the story the judge made that we're going to reverse the mistake that the judge made that we're going to reverse is in the state that the third judge assigned to this case made well after in not granting the motion to dismiss based on double jeopardy that's a mistake well put but at the trial i'm talking about trial here if there was any mistake there that's the it's up here on appeal it's a government mistake such mistake correct it's the government's misconduct the agent's misconduct that brings us here ok but when was that raise i'm trying to figure out what trial judge did that was wrong in handling the case were so our position is the trial judge was wrong when he denied the motion to dismiss based and bar retrial based on double jeopardy had it was inclusion with the prosecution was there any evidence on that there was not at the trial level mr hawkins wanted to cross examine the agent about what occurred and the district court judge denied and was when was that motion made that motion was made it seem mr hawkins at that point was representing himself he made numerous motions or numerous pleadings surrounding the first one so the first motion was filed on june eighteenth of two thousand and thirteen so that would have been about eight months after the trial notice of motion and motion to dismiss for double jeopardy violations evidentiary hearing is requested  the district court made a finding that there was no intentional goading how can we find that to be clear because the district court judge who made that finding s rejected any arguments concerning agent shelton so during the hearing on the motion when mr hawkins was explicitly asking the judge to cross examine agent shelton the district comprehend that it was a possibility that agents would be part of the prosecution team part of the government well we have been trying to understand the question so we have trying to understand it but i want to get your argument if i understand correctly the question is a ghost agent shell would be to try and get the same  the prosecution so that you've got prosecutorial misconduct by the answer to the question that's what i assume it is but i don't believe you need to have collusion there i believe that because agent shelton was part and parcel of the trial from the beginning she observed what was occurring and it is very possible it's i don't think it's unreasonable to infer from the record that she did this on purpose in fact the district court judge stated that so you're saying  purpose which you're saying what you're union is that she is a prosecutor for purposes of double jeopardy the same as the prosecutor so it was prosecutorial misconduct would cover her actions alone and artless and i would say yes regardless and i would say it's not prosecutorial misconduct it's government misconduct exacts the language that the supreme court used in kennedy is it's governmental misconduct he the supreme court did not limit it to government attorneys representing the government in the trial in district court it was just the government generally going back to what the district court found that the district court the court cannot conclude that the conduct about which defendant complains was designed to cause a mistrial so you're saying at that point the judge was only talking about the prosecutor yes but is that because that's all that defendant was clearly discussing i would say that the defendant focused his briefs more on the prosecutor than the agent however he did in his briefs complain about what the agent sa and that's laid out in here is let's see i'm just not even i know that he talked about the f b i agent a little bit in his briefs but i'm having a problem because he either talked about the prosecutor and the f b i agent in my view that it was raised because the government responded to it in the its opposition to the most and to dismiss it says the united states continues to contest any argument that the witnesses gauged in any deliberate misconduct with with respect to her testimony so then why did shouldn't understand the district court when it's the conduct about which defendant complains to include the f b i agent because when mr hawkins sought to cross examine the f b i agent about what occurred the district court specifically  said her intentions are relevant your attack is against the prosecutor so he the district court judge cut mr hawkins off didn't even allow him to develop the facts necessary or what  hawkins found was necessary or wanted to develop and district court at this point like i say he was pro se so this is a little difficult to parse but the district court judge clearly was not considering that agent shelton even though it's my view it was raised the district court judge was focusing solely on the actual government attorneys the prosecutors and was not focusing on the possibility that agent shelton who sat throughout this trial  agent with eleven years of experience and as the original district court judge sitting observing her testimony said she must have done this on purpose and greed with you would we need to remember for a factual hearing on her hearing on this question of what the agents intent was how can we just grant relief without there having been such a factual determination if we're reading this factual determination the way you do because it's my view that the record supports a finding that they're essentially there's no other explanation for it as when the government attorney set out what he did to prepare for trial it was very clear when you look at the three to the witness report it's very clear what the question and what the intended answer was at to different sessions of trial prep one in person and one on the phone the government had their outline they said this is a question i'm going to ask this is the anticipated answer but afterward they filed declarations saying this was an accident right well afterwards it was only the government attorney that filed a declaration saying this is what i was going to ask or this is what she told me the answer was the what occurred in the court was a completely a surprise to me so i will agree that the government was not aware of this and i believe that the record supports that however when you consider agent shelton as part of of the government team and the prosecutorial team then her contact becomes relevant and irrespective of whether she discussed it with anyone prior to her behavior is still attributable to the government and the government should be held responsible for that and the other question my colleagues thank you for your argument here on the other side that the prosecutor engaged in misconduct by intentionally trying to elicit testimony about the defendant's invocation if and then and at that attempt alone is sufficient for lying and second circuit that's no longer being raised with th court they're for because the original argument is not being raised and the new argument has been waved there actually is no argument that's being presented this or that set forth a colorable claim why shouldn't we consider the claim that was raised to be a double jeopardy claim based on kennedy and he made that argument he he made that claim he's now making a separate argument in support of the claim but it's not the same claim not arguing that there is no double jeopardy claim certainly any and both of those cases there were for example fourth amendment claims raised and it was only before this court the new theory had been presented and this court declined to address the new theory and i think in this case there's a good reason for that this  already asked some questions about the status of the record as relates to the intention of the special agent that was not the focus of the argument that was presented below if you look at the papers that mr hawkins submitted pro s they focus squarely on the prosecutor the court understood that to be the focus in fact the court corrected mr hawkins when he said well i need to take evidence as the intention of the special agent and in response to that mr hawkins didn't dispute that didn't indicate at that point in book in front of the court that no my my focus is broader he conceded the point and then asked to take more evidence as to the prosecutor's intentions and what that the court said i have a declaration i've read and that we are to judge her conduct independently i gather from that of the prosecutor that we are i gather to huge what she did as an intentional goading in such a way as to cause a mistrial would you address the issue of whether or not the f b i agent can be considered for these purposes as the in quotes government and guilty of government in quotes misconduct yes absent evidence of collusion or some some sort of action done with the knowledge or participation of the prosecution actions by an f b i agent and do not trigger the narrow exception under kennedy with respect to double jeopardy what is your best case in support of that your honor the green case of the fourth circuit and there's a state supreme court decision kinzler out of believe the spirit supreme court of kansas those are the two cases that have most squarely addressed this very argument and in fact those are the cases that have the most analogous facts in green it and that's also in green doesn't go in didn't go into as much detail but that was the the majority's rationale lingering as well the prosecutor has the role in court of representing united states that's the prosecutor's responsibility to determine witnesses are called which arguments are to be made and in fact in this case that's illustrated by the fact that regardless of the intent of the special agent to get to that in a moment the prosecutor resisted mistrial at every opportunity and therefore as the representative of the united states who's in that position it's different special agent shelton and just to correct the record was not a counsel table but it was permitted to be in the courtroom subject to an exclusion order  regardless of the role of the special agent there there a witness at the end and that's what happened here and as the record makes clear the answer given was not expected and therefore and counsel can see that there has been no collusion that's being made now has been waived and if the prior agreement has not been raised there's simply no argument for the court to consider whether stuck to double jeopardy but even if the current war regardless of the argument it's not being presented there's no colorable argument there's no  the court then went on to discuss this second circuit dictum and wallace and which the second circuit indicated well if there was an attempt to go to mistrial that might fall within kennedy's exception and this circuit ultimately didn't that given where we're at now years after lewis i believe it no longer can be considered colorable and i think the reason is this your honor but are you familiar with the lopez of you like a stick came after a yes or no and that's still  striking the testimony the when looking at the history of kennedy or organ versus kennedy and the due process clause the court's concern has been depriving the defendant out of the ability to take the matter to the jury after it's in panel and that's where the court has found that in this narrow exception the defendant has been cheated out of the ability to take the matter to the jury and to get an acquittal for which double jeopardy would clearly bar trial that didn't occur here the defend got everything he wanted he took the matter to jury believing apparently that the case was going well for the defense it would resulted in a hung jury an f or a mistrial and right back to where the defendant wanted to be in other words there's no there's no conviction and and if the court had made that promise to grant a new trial under this court's precedent double jeopardy would have barred the claim or the reprosecute even then because a motion for a new trial and a rule thirty three does not trigger the double jeopardy archery trial in the sense of the defendant once a very favorable ruling that says i get everything i want and i'm not and i get double jeopardy protection even though had i gotten this promised motion i wouldn't be in that situation prosecution and that the case focused more on whether or not an evidentiary hearing should have been held and so it's not on all fours with this this case and then the last that's actually the closest case and once again in that case the court found  that there was no evidence of an intent to go with the defendant into seeking a mistrial and therefore the narrow exception to kennedy didn't apply so that was not considered colorable an appeal it better result overall me would be potentially to have the court resolve the merits simply because if the defendant now wishes to pursue get a different argument below and and seek an evidentiary hearing the court internment at this point that the prosecutor is not part of the agent is not a prosecutor or alternatively that the fact that there was no mistrial motion sought much less granted takes it out of kennedy and does it doesn't even have to reach this issue of prosecutor versus agent because kennedy's no exception requires a successful motion for mistrial which didn't occur here but we have to disagree with the problem we have his if we don't have hard to do what would be the better position we don't have power to do it so the original thing we have to find is our rule and your argument is we had that didn't have that what you're saying is if you disagree with me then this is what you'd like to have yes  strange way i would almost think it's as i look at it now as in different eyes than i looked at it the first time i saw it do you agree with  s that that's the proper way to handle a matter that is how would you interpret moonless in relationship to this case i think what lewis did is went ahead and addressed the issue of to what extent it's possible to have kennedy apply outside of the context of a successful motion for mistrial and i think at least the reading my reading of lewis is that the court essentially looked at it in the alternative that even if we were consider wallace the wallach decision from the second circuit and followed that rationale it still doesn't matter to the defendant because so you're saying it was an alternative complied there's no basis here that structure even if wallach applied and therefore the successful motion for a mistrial was not required to trigger kennedy that still the defendant's claim lacks a merit because one there's been a finding by the district court of no intent to go to mistrial and second that there's no prosecutor does not somehow envelop the an agent when that's there's no collusion or  jurisdictional question requires a colorable claim and therefore there would have to be some analysis of the nature of the claim i think ultimately the cork of some of my there is no jurisdiction including because the argument that was made now was waived and there's no been no argument raised from