successful mistrial motion in order to secure several strategic advantages the double jeopardy clause therefore barred mr rodriguez is retrial there's substantial evidence in all three categories indicative of prosecutor intent recognized by this court in lieu far more than is necessary to warrant an evidentiary hearing under the parameters discussed and i guess the district court therefore erred both in not dismissing the indictment and the denying of hearing on the prosecutor subject of int it was an evidentiary hearing because counsel was there presumably telling the truth because he has an obligation to it every bit as much as he does if he stands up it's on the stand  of asking the prosecutor what was your intention do you intend to do this because now it appears the record as the government has been arjuna seems like the record is subject to some very different interpretations and i guess i guess the way i can look at this thing is just exactly the way the judge did at the end of the day while it was going on it's sort of seen the worst by this when you go back and you actually look at what was really said and done that may give you case and i'm thinking maybe i mean either mr miller i were a trial counsel and we're all in the same situation here same situation that the district court put itself in so we've always recognized that there's very big difference between what it appears like there at the time that's why we give deference to the district court who saw what was going on at the time the judge came back and looked at the cole record the same way that we're looking at a cold record so it is interesting that the judge did come to almost one hundred eighty degree differen things it wasn't very very big deal i think you have to agree with me well i think it was the consistency of the pattern it was something as started way before the trial started that this was going on that there was problems all through it in the district  court say that the and the clinton mistrial this has been a pretty rocky road and unnecessarily self and that that's probably substantiated by the record but it is that in this case counsel the standard i believe is abuse of discretion is it not for the hearing crack right and in this case what can you point to that or you believe that the that the district court truly abused its discretion i mean that medically reasonable minds can disagree about things but we're talking about an abuse of discretion here what did the district court do other than the fail to order the hearing the evidence for a hearing from your perspective what was happening levy i mean the government through i was going pretty the counsel for the government said he had no such intention there was no science or involved what happened that would constitute an abuse of discretion from your perspective just specifically about the hearing i think there's a couple of points first of all there was legal air and that by definition is abuse of discretion leave the court by applying this almost completely deferential standard that well since i was here and i thought there was never going to be any need for a hearing i think that's contrary to the view that was taken and i got because i believe that i gave in the court there did not specifically decide between the two different tests discuss it very clearly was a lin more on the second circuit test which i think i would argue is more consistent with what the supreme court said in tennessee the supreme court said we should treat this like any other issue of intent and we're not going to treat it in any other special fashion but the eighth of the sixth circuit or it's a highly deferential standard rank and i think and that as you point out are circuit did not adopt either of these tests i understand why you want to adopt the seventh circuit test but it is our court specifically did not adopt one and two circuits or so that's highly differential you believe that with that standard that we would have some basis to overturning this verdi based upon the the court's you're to order an evidentiary hearing on this matter i think so your honor because applying the test and insanity in the seventh circuit case there's two steps to it first of all are the explanations possible and second in the context of a case that was otherwise going well for the prosecution and the case was going well for the government i disagree and i believe the case was in a shambles and that's exactly what the district court felt i think that that was very much what the prosecutor the very least i certainly was an interesting question of what i mean what was the only the best evidence we have of what the prosecutor was thinking was what he told the district court he says we're floundering he says right now we don't know who he is we don't know how he's even related the case we're going to be scrambling in this box to find mr christie you know he said it's made very clear in opening statement about this person called harlem's christie or i believe we have zero information on that zero we have absolutely nothing about that and then he goes on later to say because right now let's face it he's in a car with a lot of drugs and it's his car that's all we have that's why we've ever had in the very beginning of this case he's admitting that his case was probably weaker release he subjectively felt it was weak and not to do it again in the second trial he did do it in the second trial a second time there was no objection but it didn't matter because this morales was acquitted in that case so there there's a clear pattern here and i would say this is precisely for poor be evidence hunter that there is a plan there's intent there's a lack of knowledge and a lack of mistake in this case showing that this is a consistent pattern and when the prosecutor told the district judge i'm demonstrably false he must know that was the case prosecuted out of his own office how could he not know that case and then he went on and said statements which made indicate he didn't even seem to be was assigned the strace i handled the this appeal i also handled the subsequent sentencing yeah and the the safety valve the briefing on the recommendation and the ultimately the sentencing so that's where he is and that's why i'm appearing but in this case judge leaders did not clearly error in making the factual finding that mr cheney did not have the intent to bring up to the ninth circuit given time no explanation as to whether or not it was or whether or not he was going to bring me into silence it's an actually a request to see whether or not he understood what was going on because you know we also have to prepare for the and they don't even know whether or not he understood what was going on because he was just scared so oh i don't want you don't quit my course line up because he didn't do it or the government didn't prove it but because he ought to punish the government for having responses was comments by the agent that he was expressionless but the answer to why did you do it i'm spanish the answer so i could know that he understood what was going on but it wasn't because i wasn't with any attempts to elicit that he was expressing he didn't have the time to prepare him to do that was really you mentioned earlier that mr chang was experienced how many years was he with your office ten ten ten and any idea how many trials he handled during that period of time too many to count he would have been at least over fifty possibly more whether it be fair to say that he would be expected to be familiar with ninth circuit law and the rules under which he's supposed to conduct the trial yes it would be but if you were to do this in evidence or hearing advance that he might be getting into one of these areas and that this was his practice so this is not something that he had to think of at the last minute and signal to the witness he could have prepared when this is an advance for this or prepared himself to elicit this kind of evidence and also like to point out th gave the court pointed out that the prosecutors there objected and sometimes the doc objected strenuously to the mistrial there was no objection here to the mistrial mr chang never said anything in opposition to the mistrial he merely tried to defend personally his actions the misconduct that he engaged in he never said mistrials inappropriate he never object to the mistrial once it was actually made the district court research and found the case law relevant  to the oil griffen air the bloody gomez there he even said that not only was this error but then he said specifically he thought that the government could not even prove it was harmless that his he has already convinced that it was beyond harmless  however the district court did this that these decisions to came to very different decisions once the motion to dismiss the indictment came up and the the view was so diametrically opposed that it seems unreasonable in fact the clearest indication of that is that when judge benita has ruled that the motion under double jeopardy was frivolous having looked at all that evidence and decided that there was a nothing here to stop a federal criminal trial in mid stride he looks at the same evidence and  exceeds that shown in any of the case file that's been cited to this court to show that there was an intentional provocation of a mistrial therefore the double jeopardy bar has been raised the district court here to making that decision this court like any district court  of course in the alternative hearing on this because there seems to be quite a bit of contention about what really went on here and different effort to protections at the very least what evidence or hearing was justified