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 inte nt to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 841(a)(1 ) and (b)(1)(A). His first tria l ended in a mistrial after the prosecutor improperly attempted to imp each Burciaga with an e-mail Burciaga’s attorney sent to the prosecut or regarding Bu rciaga’s willingness to plead guilty to the charge. Before his second trial, Burciaga m oved to dismiss the charge on double jeopardy

* This order and judgment is not binding pr ecedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 13, 2015

Elisabeth A. Shumaker Clerk of Court2 grounds. The district court denied the motion, concluding that a lthough the prosecutor had acted negligently and carelessly, he did not intentionally provoke the mistrial. After a jury convicted Burciaga, he appealed the de nial of his motion to dismiss. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.

F ACTUAL AND P ROCEDURAL B ACKGROUND This is the second appeal in this case. In the first, we reversed the district court’s order suppressing more than 17 kilogram s of heroin found in Burciaga’s car. See United States v. Burciaga , 687 F.3d 1229, 1 230 (10th Cir. 2012). On remand, toward the end of the firs t trial, Burciaga testified on direct examination that although he ha d pled guilty to previous crim es, 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 im peach this testimony, the prosecutor questioned Burciaga on cross-examination: Q: Okay. Yesterday, you stated on dire ct examination that you never wanted to plead guilty in this case, right? A: Correct. Never. Q: Why is it your attorney came to me w ith 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 oppo sed a mistrial and defended his question, arguing he was entitled to impeac h 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 mi strial, arguing the question was improper because the e-mail regarding plea ne gotiations was inadmissible under Fed. R.

Evid. 410. Seeking to salvage the tria l, the district court aske d the parties to propose a limiting instruction to cure any prejudice a ttributable to the prosecutor’s question. Although the prosecutor work ed with defense counsel in drafting the proposed instruction, the court eventually conc luded the prejudice to Burciaga from the prosecutor’s improper questio n could not be cured, an d declared a mistrial. Before Burciaga’s second trial, he m oved 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 dr ug 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 pr ior felony drug offense. 1 Burciaga appeals the district court’s

1 Burciaga challenges his 20-year sentence be cause 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 conced es he raises this issue only to preserve it for Supreme4 denial of his motion to dismiss.

D ISCUSSION 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. Ordinar ily, 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 defe ndant 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 ex ception 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 subjec tive intent; “[i]nferring the ex istence 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 fo llow 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 (a5 Here, Burciaga challenges the district c ourt’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 perm issible in light of the evidence.’” Id. (quoting Manning v. United States , 146 F.3d 808, 81 3 (10th Cir. 1998)). Burciaga first argues the prosecutor’s ques tion so clearly violated Federal Rule of Evidence 410 that the prosecutor, given his ye ars of experience, would necessarily have known it would cause a mistrial. In support, Bu rciaga compares the facts of this case to

those in Tafoya. There, the trial court granted a mi strial after a first-year federal prosecutor asked a government witness, “Wha t happened after that?” and thereby elicited a response that violated the distri ct court’s pretrial limine order. Id. at 1123-25. The district court denied Tafoya’s subsequent mo tion to dismiss the charge against him, and this court affirmed, relying on considerations that included the prosecutor’s inexperience, the prosecutor’s effort to craf t a curative instruction, and the open-ended nature of the question. Id. at 1124, 1127. As Burciaga points out, the prosecu tor’s question here clearly was more problematic than the seem ingly innocuous, “What ha ppened after that?” in Tafoya

. published decision of anothe r panel of this Court). See Tafoya , 557 F.3d at 1129.6 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 dist rict court found the prosecutor offered a sincere and researched (albe it incorrect) explanation for asking the question—to impeach Burciaga’s prior testimon y regarding plea negotiations —and the prosecutor worked diligently with defense counse l to propose a limiting instru ction 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 th e prosecutor intended to cause a mistrial. See Kennedy , 456 U.S. at 675-76 (prosecutorial condu ct that could be viewed as harassment or overreaching, even if suffici ent 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 or der 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 a nd observed his trial strategy, and after the prosecutor had time to reflect and strategi ze before asking the question. Burciaga also notes that after as king 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 statemen t indicates the prosecutor believed the government’s case was going poorly. But as the district court found, the gove rnment’s case was neither weak nor “going7 poorly,” and the prosecutor possessed an “obj ective basis for believi ng the government’s case was strong and the defense case was weak .” Specifically, the district court observed from Burciaga’s first trial that “the Go vernment’s case itself [was] not weak” and “Defendant’s own testimony did li ttle to rebut it.” It also noted that the motions in limine filed before Burciaga’s second trial reveal ed the parties believed Burciaga’s “testimony ultimately would have been favorable to the Governme nt.” The record supports the district court’s observations and its finding th at the government had no reason to sabotage

the first trial. Burciaga also suggests the prosecutor’s in tent to cause a mistrial can be inferred based on the fact that the government bolstered its case with new ev idence at Burciaga’s

second trial. But as the district court not ed, “the Government—like any reasonable attorney preparing for a tria l in our adversary system—has consulted the evidence it has

available to it and endeavored to use this evidence to its advant age.” The government’s effort to put on its strongest case does not und ermine the district court’s finding that the government had “no incentive to cause a mistri al” and its conclusion that the prosecutor did not subjectively intend to cause the mistrial here. Finally, Burciaga argues the district cour t gave the government too much credit for defending the prosecutor’s question and attemp ting to salvage the trial by assisting in drafting a proposed limiting inst ruction. However, as the distri ct court found, such efforts can suggest the government did no t 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 chance8 to try the case, professed that his question wa s 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 Burcia ga urges us to adopt another view. The

bottom line is that when we view the evidence in the light mo st 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 ha s failed to show that the di strict 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. C ONCLUSION The district court’s ju dgment is affirmed.

ENTERED FOR THE COURT Nancy L. Moritz, Circuit Judge