UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

FRANCISCO BURCIAGA,

Defendant - Appellant.

No. 13-2212

(D.C. No. 1:08-CR-01541-MV-1)

(D.N.M.)

ORDER AND JUDGMENT*

Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges. 

 

The government charged and twice tried Francisco Burciaga for knowingly and 

intentionally possessing with intent to distribute one kilogram or more of heroin in 

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). His first trial ended in a mistrial after 

the prosecutor improperly attempted to impeach Burciaga with an e-mail Burciaga’s 

attorney sent to the prosecutor regarding Burciaga’s willingness to plead guilty to the 

charge. Before his second trial, Burciaga moved to dismiss the charge on double jeopardy 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 13, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

grounds. The district court denied the motion, concluding that although the prosecutor 

had acted negligently and carelessly, he did not intentionally provoke the mistrial. After a 

jury convicted Burciaga, he appealed the denial of his motion to dismiss. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal in this case. In the first, we reversed the district court’s 

order suppressing more than 17 kilograms of heroin found in Burciaga’s car. See United 

States v. Burciaga, 687 F.3d 1229, 1230 (10th Cir. 2012). 

On remand, toward the end of the first trial, Burciaga testified on direct 

examination that although he had pled guilty to previous crimes, he had not pled guilty to 

this crime because he was not guilty: 

Q: And why did you plead [guilty to other, previously charged crimes]? 

A: Because I was guilty. 

* * * 

Q: Okay. Have you ever considered accepting a plea and pleading guilty in 

this case? 

A: No. 

Q: Why is that? 

A: Because I’m not guilty. 

The following day, in an attempt to impeach this testimony, the prosecutor 

questioned Burciaga on cross-examination: 

Q: Okay. Yesterday, you stated on direct examination that you never wanted to 

plead guilty in this case, right? 

A: Correct. Never. 

Q: Why is it your attorney came to me with a proposed plea in this case last 

spring? 

Defense counsel objected, and the district court immediately dismissed the jury. 
3 

The district court advised the parties it was considering declaring a mistrial and heard 

argument from both sides. The prosecutor opposed a mistrial and defended his question, 

arguing he was entitled to impeach Burciaga’s testimony with an e-mail from Burciaga’s 

attorney advising the prosecutor that if the government offered Burciaga five years “he’d 

take it in a heartbeat.” But defense counsel requested a mistrial, arguing the question was 

improper because the e-mail regarding plea negotiations was inadmissible under Fed. R. 

Evid. 410. 

Seeking to salvage the trial, the district court asked the parties to propose a 

limiting instruction to cure any prejudice attributable to the prosecutor’s question. 

Although the prosecutor worked with defense counsel in drafting the proposed 

instruction, the court eventually concluded the prejudice to Burciaga from the 

prosecutor’s improper question could not be cured, and declared a mistrial. 

Before Burciaga’s second trial, he moved to dismiss the charge against him on 

double jeopardy grounds. The district court denied the motion, finding the prosecutor did 

not subjectively intend to force Burciaga to request a mistrial. Following his second trial, 

a jury convicted Burciaga of the single drug possession charge, and the district court 

sentenced him to a 20-year mandatory minimum sentence under 21 U.S.C. 

§ 841(b)(1)(A) based on a prior felony drug offense.1

 Burciaga appeals the district court’s 

 1

 Burciaga challenges his 20-year sentence because the jury did not find the fact of 

his prior conviction beyond a reasonable doubt. Burciaga concedes this issue is controlled 

by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that that a prior 

felony conviction is a sentencing factor that need not be pleaded in the indictment or 

decided by a jury. See also United States v. Apperson, 441 F.3d 1162, 1213 (10th Cir. 

2006). Indeed, Burciaga concedes he raises this issue only to preserve it for Supreme 
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denial of his motion to dismiss. 

DISCUSSION

The Double Jeopardy Clause “protects a criminal defendant from repeated 

prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671 (1982). It 

provides that no person “shall . . . for the same offence . . . be twice put in jeopardy of life 

or limb.” U.S. Const. amend. V. Ordinarily, the Double Jeopardy Clause does not bar 

reprosecution when, as here, the first trial ended in a mistrial at the defendant’s request, 

even if the mistrial was due to prosecutorial error. United States v. Jorn, 400 U.S. 470, 

485 (1971). The government cannot, however, retry a defendant if it intentionally 

provoked the defendant to request a mistrial. United States v. Valadez-Camarena, 163 

F.3d 1160, 1163 (10th Cir. 1998). 

 The standard for satisfying this exception to the general rule permitting 

reprosecution is “extremely exacting.” Earnest v. Dorsey, 87 F.3d 1123, 1130 (10th Cir. 

1996). The Double Jeopardy Clause bars retrial only “‘where the prosecution 

intentionally goads the defense, not where the prosecution is mistaken, careless, or even 

harassing.’” United States v. Tafoya, 557 F.3d 1121, 1126 (10th Cir. 2009) (quoting 

Valadez-Camarena, 163 F.3d at 1163). Thus, it requires a court to make a finding of fact 

regarding the prosecutor’s subjective intent; “[i]nferring the existence or nonexistence of 

intent from objective facts and circumstances.” Kennedy, 456 U.S. at 675.2

 

 

Court review. 

2

 Burciaga argues this Court should not follow the subjective intent test adopted in 

Kennedy, which this Court applied in Tafoya, Valadez-Camarena, and other cases. This 

Court, however, is bound to follow Kennedy (a U.S. Supreme Court case) and Tafoya (a 
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Here, Burciaga challenges the district court’s finding that the prosecutor did not 

intend to force a mistrial by mentioning Burciaga’s attorney’s attempt to engage in plea 

negotiations. We review this finding for clear error. Tafoya, 557 F.3d at 1126; ValadezCamarena, 163 F.3d at 1163. A factual finding is clearly erroneous if it is without factual 

support in the record, or if, upon reviewing the record, we have “a definite and firm 

conviction” that the district court made a mistake. Tafoya, 557 F.3d at 1126. “‘[W]e view 

the evidence in the light most favorable to the district court’s ruling and must uphold any 

district court finding that is permissible in light of the evidence.’” Id. (quoting Manning 

v. United States, 146 F.3d 808, 813 (10th Cir. 1998)). 

 Burciaga first argues the prosecutor’s question so clearly violated Federal Rule of 

Evidence 410 that the prosecutor, given his years of experience, would necessarily have 

known it would cause a mistrial. In support, Burciaga compares the facts of this case to 

those in Tafoya. There, the trial court granted a mistrial after a first-year federal 

prosecutor asked a government witness, “What happened after that?” and thereby elicited 

a response that violated the district court’s pretrial limine order. Id. at 1123-25. The 

district court denied Tafoya’s subsequent motion to dismiss the charge against him, and 

this court affirmed, relying on considerations that included the prosecutor’s inexperience, 

the prosecutor’s effort to craft a curative instruction, and the open-ended nature of the 

question. Id. at 1124, 1127. 

 As Burciaga points out, the prosecutor’s question here clearly was more 

problematic than the seemingly innocuous, “What happened after that?” in Tafoya. 

 

published decision of another panel of this Court). See Tafoya, 557 F.3d at 1129. 
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Compare id. at 1124. Indeed, the district court here described the prosecutor’s question as 

“highly improper” and “careless,” revealing “poor judgment” and “negligent disregard” 

for Burciaga’s rights. Nevertheless, the district court found the prosecutor offered a 

sincere and researched (albeit incorrect) explanation for asking the question—to impeach 

Burciaga’s prior testimony regarding plea negotiations—and the prosecutor worked 

diligently with defense counsel to propose a limiting instruction that would minimize any 

prejudice to Burciaga. We conclude the record supports the district court’s finding that 

the nature of the question does not show the prosecutor intended to cause a mistrial. See

Kennedy, 456 U.S. at 675-76 (prosecutorial conduct that could be viewed as harassment 

or overreaching, even if sufficient to justify mistrial, does not bar retrial absent intent by 

prosecutor to subvert the Double Jeopardy Clause’s protections). 

 Next, Burciaga contends the timing of the prosecutor’s question indicates the 

prosecutor intended to cause a mistrial in order to create a second opportunity to try the 

case. Specifically, Burciaga points out that the prosecutor’s improper question came at 

the end of trial, after the prosecutor had seen Burciaga’s evidence and observed his trial 

strategy, and after the prosecutor had time to reflect and strategize before asking the 

question. Burciaga also notes that after asking the question at issue, the prosecutor 

advised the district court, “I feel like I’m having to fight and claw to get my case 

presented in a way that is fair and so that it’s—so that the right thing is in front of the 

jury.” Burciaga contends this statement indicates the prosecutor believed the 

government’s case was going poorly. 

But as the district court found, the government’s case was neither weak nor “going 
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poorly,” and the prosecutor possessed an “objective basis for believing the government’s 

case was strong and the defense case was weak.” Specifically, the district court observed 

from Burciaga’s first trial that “the Government’s case itself [was] not weak” and 

“Defendant’s own testimony did little to rebut it.” It also noted that the motions in limine 

filed before Burciaga’s second trial revealed the parties believed Burciaga’s “testimony 

ultimately would have been favorable to the Government.” The record supports the 

district court’s observations and its finding that the government had no reason to sabotage 

the first trial. 

Burciaga also suggests the prosecutor’s intent to cause a mistrial can be inferred 

based on the fact that the government bolstered its case with new evidence at Burciaga’s 

second trial. But as the district court noted, “the Government—like any reasonable 

attorney preparing for a trial in our adversary system—has consulted the evidence it has 

available to it and endeavored to use this evidence to its advantage.” The government’s 

effort to put on its strongest case does not undermine the district court’s finding that the 

government had “no incentive to cause a mistrial” and its conclusion that the prosecutor 

did not subjectively intend to cause the mistrial here. 

Finally, Burciaga argues the district court gave the government too much credit for 

defending the prosecutor’s question and attempting to salvage the trial by assisting in 

drafting a proposed limiting instruction. However, as the district court found, such efforts 

can suggest the government did not intend to cause a mistrial. See Tafoya, 557 F.3d at 

1127; Valadez-Camarena, 163 F.3d at 1163. Nevertheless, Burciaga urges this Court to 

speculate that the prosecutor, in a Machiavellian scheme to manufacture a second chance 
8 

to try the case, professed that his question was an innocent mistake and feigned interest in 

avoiding a mistrial, all to avoid a finding that he provoked the mistrial. Significantly, 

Burciaga provides us with no record citations to substantiate his conspiracy theory, 

stating only “[w]here the court saw efforts to salvage the trial, [Burciaga] sees further 

manipulation.” 

And therein lies the problem. The district court adopted one view of the facts—a 

view supported by the record—while Burciaga urges us to adopt another view. The 

bottom line is that when we view the evidence in the light most favorable to the district 

court’s ruling, as we must, we find the district’s view permissible in light of the evidence. 

Because we conclude Burciaga has failed to show that the district court clearly erred in 

finding the prosecutor did not intend to cause a mistrial, we affirm the district court’s 

denial of Burciaga’s motion to dismiss. 

CONCLUSION

The district court’s judgment is affirmed. 

ENTERED FOR THE COURT 

Nancy L. Moritz, 

Circuit Judge