FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 11-10013

Plaintiff-Appellee, D.C. No.

v. 4:10-cr-00035-  CKJ-JCG-1 AURORA LOPEZ-AVILA,

Defendant-Appellant. ORDER AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

November 14, 2011—San Francisco, California

Filed January 12, 2012

Amended February 14, 2012

Before: John T. Noonan and Carlos T. Bea, Circuit Judges,

and Donald E. Walter, Senior District Judge.*

Opinion by Judge Bea

*The Honorable Donald E. Walter, Senior District Judge for the U.S.

District Court for Western Louisiana, sitting by designation. 

1743
COUNSEL

Robert L. Miskell, Office of the United States Attorney, Tucson, Arizona for the plaintiff-appellee.

Mark F. Williman, Tucson, Arizona, for the defendantappellant.

UNITED STATES v. LOPEZ-AVILA 1745
ORDER

The opinion in this case was filed on January 12, 2012 and

was published at Slip Op. 259. The government has filed a

motion requesting that we amend the opinion to remove the

name of Assistant U.S. Attorney Jerry Albert from the Federal

Reporter. The government’s motion is DENIED.

However, the opinion is hereby amended as follows.

1. At Slip Op. 274, after the paragraph ending Berger v.

United States, 295 U.S. 78, 88 (1935), insert the following,

beginning with a new paragraph:

<The mistake in judgment does not lie with AUSA Albert

alone. We are also troubled by the government’s continuing

failure to acknowledge and take responsibility for Albert’s

error. 

The Department of Justice has an obligation to its lawyers

and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and

responsibilities that do not apply to other lawyers; they must

serve truth and justice first. United States v. Kojayan, 8 F.3d

1315, 1323 (9th Cir. 1993). Their job is not just to win, but

to win fairly, staying within the rules. Berger, 295 U.S. at 88.

That did not happen here, and the district court swiftly and

correctly declared a mistrial when Albert’s misquotation was

revealed. 

When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to

own up to it and to give assurances that it will not happen

again. Yet, we cannot find a single hint of appreciation of the

seriousness of the misconduct within the pages of the government’s brief on appeal. Instead, the government attempts to

shift blame by stating that “the prosecutor gave the defense

counsel an opportunity to stop the offending question before

1746 UNITED STATES v. LOPEZ-AVILA
the prosecutor asked it,” but “defense counsel did not realize,

or even inquire about, how the question from the change of

plea transcript had been redacted.” Gov’t Br. 26-27. Of

course, as we have explained, Albert told the district court

what he intended to say. Albert did not tell the court or opposing counsel that what he intended to say was not a full nor fair

recitation of the magistrate’s question to Lopez-Avila. 

Finally, upon initial release of this opinion, the government

filed a motion requesting that we remove Albert’s name and

replace it with references to “the prosecutor.” The motion

contended that naming Albert publicly is inappropriate given

that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the

government’s suggestion and denied its motion. We have

noticed that the U.S. Attorney’s Office in Arizona regularly

makes public the names of prosecutors who do good work and

win important victories. E.g., Press Release, U.S. Attorney’s

Office for the District of Arizona, “Northern Arizona Man

Sentenced to Federal Prison for Arson,” (January 31, 2012)

(“The prosecution was handled by Christina J. Reid-Moore,

Assistant U.S. Attorney, District of Arizona, Phoenix”), available at http://www.justice.gov/usao/az/press_releases/2012/

PR_01312012_Nez.html. If federal prosecutors receive public

credit for their good works—as they should—they should not

be able to hide behind the shield of anonymity when they

make serious mistakes.>

2. At Slip Op. 274-75, replace the entire paragraph beginning with the sentence <We recognize that this court is not the

proper venue for direct discipline of Albert, so we will not

state here that the blow struck by Albert necessarily was one

so foul as to require some form of sanction.> with <We recognize that this court is not the proper venue for direct discipline of Albert, so we will not state here that the blow struck

by him necessarily was one so foul as to require some form

of official sanction. We were not in district court to see what

occurred; Albert has not appeared before us to explain himUNITED STATES v. LOPEZ-AVILA 1747
self; and this appeal is not directly about his misconduct, but

rather about the question whether the Double Jeopardy Clause

bars a new prosecution. However, we do not need a record

greater or different than we have here to determine that Albert

should not have misrepresented the transcript’s question.

Accordingly, we are in a position to do three things to ensure

that this matter is handled properly following this disposition:

we remand the case to allow the district court to consider dismissal with prejudice of the indictment as an exercise of its

supervisory powers and to prevent other misconduct in the

future; we instruct the district court to consider disciplinary

options also pursuant to its supervisory powers; and we note

that the Office of Professional Responsibility within the

Department of Justice has the responsibility of investigating

allegations of misconduct by federal prosecutors. Whether the

circumstances attendant to Albert’s misrepresentation attenuate or aggravate the misconduct is a matter as to which the

trial judge or officials in the Office of Professional Responsibility are in a better position to determine.>

3. At Slip Op. 275, replace: <United States v. Kojayan, 8

F.3d 1315, 1324 (9th Cir. 1993)> with <Kojayan, 8 F.3d at

1324>.

4. At Slip Op. 267, replace: <But, of course, the prosecutor had not read the question magistrate’s question “exactly

the way it was.”> with <But, of course, the prosecutor had not

read the magistrate’s question “exactly the way it was.”>

The time for filing a petition for rehearing or rehearing en

banc has expired, and neither party filed a petition. No subsequent petitions for rehearing or rehearing en banc shall be

filed. The mandate shall issue in due course.

SO ORDERED.

1748 UNITED STATES v. LOPEZ-AVILA
OPINION

BEA, Circuit Judge:

On the second day of trial in this drug trafficking prosecution, during the cross-examination of Defendant-Appellant

Aurora Lopez-Avila, the prosecutor read back supposed testimony of Lopez-Avila from her earlier change of plea hearing.

What he read back seemed to contradict Lopez-Avila’s earlier

statements on direct examination. Using this supposed prior

testimony, the prosecutor—Assistant U.S. Attorney (AUSA)

Jerry R. Albert, of the U.S. Attorney’s Office for the District

of Arizona—accused Lopez-Avila of having lied to the federal magistrate presiding at an earlier hearing. 

But the prosecutor’s quotation was only part of what he

represented was a question asked the defendant under oath by

the magistrate judge. It was a half-truth. Without telling the

court or defense counsel, the prosecutor presented to court

and counsel an altered version of the prior hearing’s question

and answer, and the altered version of such dialogue made it

appear as though Lopez-Avila had contradicted herself on a

material point, when she plainly had not. The district court

naturally assumed the prosecutor had read the question and

answer whole, and allowed the questioning to proceed. When

the prosecutor’s misrepresentation was discovered by defense

counsel, he moved for a mistrial, which the court swiftly

granted. The defense then moved to dismiss the indictment

with prejudice, on double jeopardy grounds, but the district

court denied that motion. Lopez-Avila’s appeal from the

denial of that motion is the legal issue before us.

We affirm the district court’s denial of the motion to dismiss the indictment on double jeopardy grounds. In addition,

we take several steps to ensure that AUSA Jerry Albert’s

actions are properly investigated, and that he is disciplined if

the relevant authorities deem it proper. In so doing, we bear

in mind that AUSA Albert’s conduct is not directly before us,

UNITED STATES v. LOPEZ-AVILA 1749
and we express no judgment as to what sanctions, if any, are

proper.

 I.

Defendant Aurora Lopez-Avila attempted to enter the

United States from Mexico at the Nogales Port of Entry in

Arizona. Upon a tip from an informant, customs officials

searched her car and found 9.7 kilograms of cocaine behind

the back seat cushion. Lopez-Avila was charged by indictment with possession with intent to distribute over 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 21

U.S.C. § 841(b)(1)(A)(ii)(II).

Lopez-Avila initially pleaded guilty. At the guilty plea

hearing, Lopez-Avila was asked a standard set of questions by

a magistrate judge, including questions put to ascertain

whether Lopez-Avila was knowingly and voluntarily entering

a plea of guilty to the charges against her. The questioning

included the following colloquy:

COURT: In the last 48 hours have you had any

drugs, prescription medication, or alcoholic beverage?

DEFENDANT: No.

COURT: Have you ever been treated for a mental

condition?

DEFENDANT: No.

COURT: Ms. Lopez, has anyone threatened you or

forced you to plead guilty?

DEFENDANT: No.

COURT: Has anyone made any promises to you as

to what would happen in your case?

1750 UNITED STATES v. LOPEZ-AVILA
DEFENDANT: No.1

One month later, during a presentence interview, LopezAvila stated that she had been “ ‘forced’ to commit this

offense, or she would face dire consequences.” Lopez-Avila

had not earlier mentioned to defense counsel that she had

been threatened to transport the contraband. Her counsel

forthwith moved to withdraw the guilty plea in light of this

new information. Following a hearing, the court granted the

motion to withdraw the guilty plea.

The case proceeded to trial. Lopez-Avila conceded that she

had been transporting contraband and therefore, as the district

court later stated, “the whole issue in [the] case [was] whether

[Lopez-Avila] was under duress, or threatened, or forced to

commit this crime.”

2

 The government’s case-in-chief took

approximately one-and-a-half days. During that time, according to the district court, there were “no big surprises” during

the testimony of the government’s three witnesses. Rather,

“the government . . . was moving forward as it had expected

as the evidence was being presented.”

1As is clear from this exchange, the only relevance of questions as to

whether Lopez-Avila had been “threatened” was as to the voluntariness of

the upcoming guilty plea. The proper place to raise her claim that she was

“threatened” to commit the drug trafficking crime was as a defense to her

guilt. See, e.g., United States v. Navarro, 608 F.3d 529, 532 (9th Cir.

2010) (quoting model jury instructions regarding the duress defense). She

later did just that. Lopez-Avila could also have made a duress argument

to mitigate her sentence. See U.S.S.G. § 5K2.12 (allowing for downward

departure where defendant “committed the offense because of serious

coercion, blackmail or duress, under circumstances not amounting to a

complete defense”). But not at the change of plea hearing. 

2Lopez-Avila contends that she thought that she was transporting pills

called “Hoodia,” a weight loss drug. However, Lopez-Avila conceded that

she knew she was transporting some banned substance, and “[a] defendant

charged with importing or possessing a drug is not required to know the

type and amount of drug” in her possession to be found guilty of possessing contraband. United States v. Carranza, 289 F.3d 634, 644 (9th Cir.

2002). 

UNITED STATES v. LOPEZ-AVILA 1751
On the afternoon of the second day of trial, Lopez-Avila

took the stand in her own defense. She testified she had been

coerced to transport the drugs found in her car. During crossexamination, the prosecutor—Jerry Albert of the U.S. Attorney’s office in Tucson—attempted to impeach Lopez-Avila’s

testimony regarding such coercion by asking questions

regarding what Lopez-Avila had said during her initial guilty

plea hearing. Defense counsel objected, and at sidebar defense

counsel argued that there was “an agreement that this change

of plea and her admitting guilt was not going to be a part of

this record.” The prosecutor stated that he wanted to use certain questions and answers from that hearing to impeach

Lopez-Avila but that, pursuant to counsels’ agreement, he

would not “bring out [that] she pled guilty.” In particular, the

prosecutor requested that he be allowed to recite to LopezAvila the following question and answer from the initial

guilty plea hearing:

COURT: Ms. Lopez, has anybody threatened you?

DEFENDANT: No.

The court overruled the objection and allowed the prosecution

to proceed.

The prosecution then asked Lopez-Avila about that

exchange:

Q: Do you recall testifying under oath on February

24th, 2010, and being asked this question by the

Court—by the Magistrate Judge: 

Ms. Lopez, has anyone threatened you? 

And you gave—did you give the following answer:

No. 

1752 UNITED STATES v. LOPEZ-AVILA
Did you tell that under oath to Magistrate Judge

Guerin?

DEFENDANT: Yes.

Q: Was that a lie?

DEFENDANT: How is that? I don’t understand.

Q: Well, are you—you’ve now admitted that you in

fact told the judge that you were not threatened in

this case. And I’m asking you was your testimony on

February 24th, 2010, while you were under oath,

was that a lie? Did you lie to the judge about not

being threatened?

DEFENDANT: Yes.

(Emphasis added.)

Cross-examination proceeded for approximately forty more

minutes, when the court took a brief recess. At the recess,

defense counsel asked the prosecution for a copy of the transcript from the guilty plea hearing. Immediately upon reviewing the transcript, defense counsel noticed that the prosecutor

had misquoted the magistrate judge’s question to LopezAvila, without notifying the court or defense counsel of his

alteration. At the guilty plea hearing, Lopez-Avila was asked

the following question:

COURT: Ms. Lopez, has anyone threatened you or

forced you to plead guilty?

DEFENDANT: No.

(Emphasis added.)

At trial, however, the prosecutor omitted the latter clause of

the magistrate’s question—“or forced you to plead guilty”—

UNITED STATES v. LOPEZ-AVILA 1753
when he purported to quote from the transcript of the prior

proceeding. The prosecutor represented to court and counsel

the exchange was:

COURT: Ms. Lopez, has anybody threatened you?

DEFENDANT: No.

The defense immediately moved for a mistrial. Defense

counsel contended that the prosecutor had made it seem as

though Lopez-Avila had been asked whether she had been

threatened to commit the offense, when the magistrate judge

in fact had asked Lopez-Avila a different question: whether

she had been threatened to plead guilty. The prosecutor admitted that his misquoting of the transcript had been intentional

but claimed that his reading was a fair one: the transcript

“didn’t say threaten you to plead guilty. So I wasn’t going to

mention force you to plead guilty. That’s not—I read exactly

the way it was. And it’s—to me, that says anyone threatened

you? Period.” But, of course, the prosecutor had not read the

magistrate’s question “exactly the way it was.” AUSA Albert

omitted an important ellipsis between the words “threatened

you” and the end of the magistrate’s question, which ellipsis

would reveal that words were missing. Here, that missing

phrase made all the difference.

The court agreed that the defense had the better reading of

the real question and answer: that Lopez-Avila was answering

whether she been threatened or forced to plead guilty and not

whether she had been threatened or forced to commit any

other act. The court told the prosecutor that “it would have

been helpful to bring this to the court’s attention at sidebar in

advance.” After a brief recess to consider the matter, the court

concluded that it could not cure the error by giving a jury

instruction. The court then declared a mistrial.

Following the mistrial order, defense counsel moved to dismiss the case on double jeopardy grounds. At the hearing on

1754 UNITED STATES v. LOPEZ-AVILA
that motion, the court said that it was “very surprised the

[prosecution] had attempted to present . . . that evidence in

that way to this jury.” However, the court denied the motion.

It correctly stated that under Oregon v. Kennedy, 456 U.S.

667 (1982), the Double Jeopardy Clause bars retrial after a

defendant requests a mistrial “only where the governmental

conduct in question is intended to ‘goad’ the defendant into

moving for a mistrial.” Kennedy, 456 U.S. at 676. Considering what had occurred at trial up to that point, the court found

no evidence “that this was a strategy decision on [the prosecution’s] part to abort the trial.” Instead, the government “was

moving forward as it had expected as the evidence was being

presented,” and the prosecutor’s presentation of the edited

transcript “was a deliberate strategy . . . to attempt to convict

the defendant, or present evidence that [the prosecution] felt

was supporting guilt rather than presenting evidence in order

to go to a mistrial.”

Lopez-Avila took an interlocutory appeal challenging the

district court’s denial of her double jeopardy motion. The district court divested itself of jurisdiction over the case and

allowed the appeal to proceed because of its conclusion that

the claim presented by this interlocutory appeal is “colorable.”

II.

As a preliminary matter, this court has jurisdiction to hear

this interlocutory appeal. Even though a denial of a motion to

dismiss the indictment on double jeopardy grounds is not a

“final decision” of a district court, “[d]enials of a motion to

dismiss on double jeopardy grounds have long been considered immediately appealable under the collateral order doctrine so long as the double jeopardy claim is at least

colorable.” United States v. Alvarez-Moreno, 657 F.3d 896,

899 (9th Cir. 2011) (internal quotations and citations omitted).

“A ‘colorable’ claim in this context is one for which there is

‘some possible validity.’ ” Id. (quoting Richardson v. United

UNITED STATES v. LOPEZ-AVILA 1755
States, 468 U.S. 317, 326 n.6 (1984)). The district court held

that Lopez-Avila’s claim is colorable, and the government

does not object to this court exercising jurisdiction. As

explained below, although Lopez-Avila’s claim fails, it is not

a “frivolous” double jeopardy claim that this court could dismiss on jurisdictional grounds. See Alvarez-Moreno, 657 F.3d

at 899.

III.

When reviewing a denial of a motion to dismiss on double

jeopardy grounds before trial, this court “review[s] de novo

legal questions” but “review[s] factual findings, including

those on which denial may be based, for clear error.” United

States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003).

IV.

Lopez-Avila makes two arguments for why double jeopardy should bar retrial in this case: (1) retrial is barred under

Oregon v. Kennedy’s “goading” exception to the usual rule

that double jeopardy does not bar retrial where a mistrial is

granted with the defendant’s consent, and (2) retrial is barred

by the Arizona Supreme Court’s interpretation of its state

constitutional protection against double jeopardy, which interpretation is incorporated into federal proceedings in Arizona

through 28 U.S.C. § 530B. Both contentions fail. The Double

Jeopardy Clause provides no bar to Lopez-Avila’s retrial.

A.

[1] Because “[a] defendant’s motion for a mistrial constitutes a deliberate election on his part to forgo his valued right

to have his guilt or innocence determined before the first trier

of fact,” Oregon v. Kennedy, 456 U.S. 667, 676 (1982) (internal quotations and citation omitted), the Double Jeopardy

Clause usually does not bar retrial when a mistrial is declared

with the consent of the defendant. Instead, “[o]nly where the

1756 UNITED STATES v. LOPEZ-AVILA
governmental conduct in question is intended to ‘goad’ the

defendant into moving for a mistrial may a defendant raise the

bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. In adopting this standard, the Supreme Court expressly rejected the

idea that double jeopardy would bar retrial when mere “ ‘bad

faith conduct’ or ‘harassment’ on the part of the judge or

prosecutor” provoked the defense to ask for a mistrial. Id. at

674. In other words, in the language of veteran trial lawyers,

the Double Jeopardy Clause bars retrial when a prosecutor’s

misconduct aims to “burn” the jury, but not when he merely

aims to convict the defendant by methods foul.

In practice, the Kennedy standard is rarely met. That is

because “ ‘[i]t doesn’t even matter that [the prosecutor]

knows he is acting improperly, provided that his aim is to get

a conviction. The only relevant intent is intent to terminate the

trial, not intent to prevail at this trial by impermissible

means.’ ” United States v. Perlaza, 439 F.3d 1149, 1173 (9th

Cir. 2006) (quoting United States v. Oseni, 996 F.2d 186, 188

(7th Cir. 1993)). Lopez-Avila cites no published Ninth Circuit

case since Kennedy that has held that retrial was barred after

the defense consented to a mistrial motion. Nationwide, such

cases are few and far between. See, e.g., Sheldon Shapiro,

Double Jeopardy As Bar To Retrial After Grant Of Defendant’s Motion For Mistrial, 98 A.L.R.3d 997 (1980 & Supplements) (collecting cases from state and federal courts).

Lopez-Avila points to a single fact in the record that supposedly shows why the government may have been unhappy

with the way the trial was proceeding and therefore attempted

to sink its case: the fact that the border patrol agent who

searched Lopez-Avila’s car testified that there was no evidence that Lopez-Avila knew she was transporting cocaine. In

particular, Agent Lozania testified that Lopez-Avila consistently maintained during questioning that she did not know

the vehicle contained cocaine. But this fact would provide no

reason for the prosecution to subvert its case, since it did not

UNITED STATES v. LOPEZ-AVILA 1757
affect any element needed for conviction. While Lopez-Avila

said that she thought she was importing diet pills, she admitted that she knew such importation would be unlawful. That

admission is enough to satisfy the statute’s intent requirement

under Ninth Circuit law. See United States v. Carranza, 289

F.3d 634, 644 (9th Cir. 2002).3 Notably, Agent Lozania gave

no testimony to bolster Lopez-Avila’s claim that she had been

coerced to carry the diet pills she admitted she was smuggling.

[2] As the district court found, all of the evidence led to the

conclusion that the prosecutor’s conduct was “deliberate,” a

“trial strategy” used to “attempt to convict the defendant.”

These are all findings of fact, made by the trial judge, who

heard the evidence and observed the conduct of AUSA

Albert. We review such findings for clear error. United States

v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003). Of course, there

was abundant evidence to support the district court’s quoted

findings. There was no error, much less clear error. Retrial is

not barred by the Double Jeopardy Clause based on Oregon

v. Kennedy’s “goading” exception.

B.

[3] Lopez-Avila’s second argument is that the Double

Jeopardy Clause bars retrial in light of 28 U.S.C. § 530B,

which governs ethical standards for government lawyers. 28

U.S.C. § 530B states that “an attorney for the Government

shall be subject to State laws and rules, and local Federal

court rules, governing attorneys in each State where such

attorney engages in that attorney’s duties, to the same extent

and in the same manner as other attorneys in that State.”

3Even if it is possible that some juror might use Lopez-Avila’s lack of

knowledge of the identity of the contraband to acquit, doing so would be

contrary to our settled law, as noted above in footnote 2. The court cannot

presume that a prosecutor would want to sabotage his case because he

thought that a jury would fail to follow the law. 

1758 UNITED STATES v. LOPEZ-AVILA
(Emphasis added). Lopez-Avila contends that this statute,

which by its terms applies to “rules . . . governing attorneys,”

also means that the Arizona Supreme Court’s interpretation of

the Arizona Constitution’s Double Jeopardy Clause applies in

federal criminal proceedings in Arizona. Therefore, LopezAvila contends, an Arizona state Double Jeopardy case, Pool

v. Superior Court, 677 P.2d 261 (Ariz. 1984), applies in this

proceeding. As a final step, Lopez-Avila contends that under

Pool, which is more defendant-friendly than Kennedy, her

retrial should be barred. 

To begin with, Lopez-Avila admits that she did not raise

this argument below, so we can review only for plain error.

United States v. Olano, 507 U.S. 725, 731 (1993). But LopezAvila’s contention on § 530B fails under any standard of

review. 

[4] First, her argument is contradicted by the plain text of

§ 530B, which states that “an attorney for the Government

shall be subject to State laws and rules . . . governing attorneys.” 28 U.S.C. § 530B(a) (emphasis added). The Supreme

Court has said that the Constitution’s protection against double jeopardy in the Fifth Amendment “affords a criminal

defendant a valued right to have his trial completed by a particular tribunal.” Kennedy, 456 U.S. at 671 (emphasis added)

(internal quotations omitted). Even if one of the purposes of

the Double Jeopardy Clause is to protect against prosecutorial

overreaching, the right itself is plainly a right held by a criminal defendant, not one that directly governs the conduct of

prosecutors. There is simply no language in § 530B that

would allow this court to apply Arizona’s substantive interpretation of the double jeopardy clause in its own state constitution to this case, on the basis of a federal statutory provision

governing ethical standards of conduct for government lawyers. 

Second, regulations promulgated by the Department of Justice pursuant to § 530B(b) confirm that § 530B(a) “should not

UNITED STATES v. LOPEZ-AVILA 1759
be construed in any way to alter federal substantive, procedural, or evidentiary law.” 28 C.F.R. § 77.1(b). Lopez-Avila

gives no reason why this regulation is invalid or does not

apply to this case. Its application makes clear that the content

of the federal Double Jeopardy Clause is not to be transmuted

into Arizona’s, by reference to § 530B.

[5] Finally, although no decision in our circuit has

responded to this precise argument, other courts that have

examined whether § 530B changes other substantive legal

rules have unanimously rejected the claim. See, e.g., U.S. v.

Lowery, 166 F.3d 1119 (11th Cir. 1999) (violation of Florida

state rules of professional conduct does not require exclusion

of otherwise admissible evidence in federal court even if evidence is obtained in violation of state professional conduct

rules); United States v. Syling, 553 F. Supp. 2d 1187, 1192

(D. Haw. 2008) (Section 530B does not compel the government to provide exculpatory evidence to a grand jury where

defendant contended Hawaii state ethical rules required government lawyer to do so). We agree with the reasoning of

those courts. Section 530B requires federal attorneys to

behave within a state’s rules for attorney conduct. It does not

amend the Fifth Amendment to the U.S. Constitution to

include a state’s notions of what constitutes double jeopardy

as used in that state’s constitution.

[6] In sum, we conclude that the Double Jeopardy Clause

does not bar a retrial of Lopez-Avila under these circumstances. We therefore affirm the district court’s denial of her

motion to dismiss based on the Double Jeopardy Clause.

V.

We must note, however, that our conclusion on the double

jeopardy question may not be the end of this matter. AUSA

Jerry Albert represented to the trial court an altered version of

the dialogue between the court and a witness at a hearing

which had taken place in that same federal court. He pre1760 UNITED STATES v. LOPEZ-AVILA
sented a falsified version of an exchange as the true recitation

of the transcript, until caught out by defense counsel. He did

so to make it seem to the jury as if Lopez-Avila had lied

under oath about being threatened to commit the cocaine possession crime, when she had plainly responded to a magistrate

judge’s question about whether she had been threatened to

enter a plea of guilty. It is hard to see—and, from our vantage

point as an appellate tribunal, we do not see—how a prosecutor could interpret a magistrate’s question, “Has anyone

threatened you or forced you to plead guilty?”, asked at a runof-the-mill guilty plea hearing, to mean “Has anyone threatened you to commit this offense or forced you to plead

guilty?” 

After the mistrial was granted, AUSA Albert maintained

that his reading was plausible. Perhaps Albert truly thought

this, or perhaps he thought that consistently maintaining this

position would minimize the possibility of any potential sanctions against him. We have no way of knowing, as it is not

our task to conduct a thorough investigation of Albert’s conduct for disciplinary purposes. We do note that Albert’s name

does not appear on the prosecution’s brief in our court, and he

did not appear at oral argument before us. But whatever

Albert’s motivation, it is worth reminding him and all federal

prosecutors of Justice Sutherland’s famous statement that the

dual obligation of a federal prosecutor in our justice system

is to strike hard blows but to refrain from striking foul ones;

to use legitimate means to attempt to secure a conviction

without employing improper methods to do so. Berger v.

United States, 295 U.S. 78, 88 (1935).

The mistake in judgment does not lie with AUSA Albert

alone. We are also troubled by the government’s continuing

failure to acknowledge and take responsibility for Albert’s

error. 

The Department of Justice has an obligation to its lawyers

and to the public to prevent prosecutorial misconduct. ProseUNITED STATES v. LOPEZ-AVILA 1761
cutors, as servants of the law, are subject to constraints and

responsibilities that do not apply to other lawyers; they must

serve truth and justice first. United States v. Kojayan, 8 F.3d

1315, 1323 (9th Cir. 1993). Their job is not just to win, but

to win fairly, staying within the rules. Berger, 295 U.S. at 88.

That did not happen here, and the district court swiftly and

correctly declared a mistrial when Albert’s misquotation was

revealed. 

When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to

own up to it and to give assurances that it will not happen

again. Yet, we cannot find a single hint of appreciation of the

seriousness of the misconduct within the pages of the government’s brief on appeal. Instead, the government attempts to

shift blame by stating that “the prosecutor gave the defense

counsel an opportunity to stop the offending question before

the prosecutor asked it,” but “defense counsel did not realize,

or even inquire about, how the question from the change of

plea transcript had been redacted.” Gov’t Br. 26-27. Of

course, as we have explained, Albert told the district court

what he intended to say. Albert did not tell the court or opposing counsel that what he intended to say was not a full nor fair

recitation of the magistrate’s question to Lopez-Avila. 

Finally, upon initial release of this opinion, the government

filed a motion requesting that we remove Albert’s name and

replace it with references to “the prosecutor.” The motion

contended that naming Albert publicly is inappropriate given

that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the

government’s suggestion and denied its motion. We have

noticed that the U.S. Attorney’s Office in Arizona regularly

makes public the names of prosecutors who do good work and

win important victories. E.g., Press Release, U.S. Attorney’s

Office for the District of Arizona, “Northern Arizona Man

Sentenced to Federal Prison for Arson,” (January 31, 2012)

(“The prosecution was handled by Christina J. Reid-Moore,

1762 UNITED STATES v. LOPEZ-AVILA
Assistant U.S. Attorney, District of Arizona, Phoenix”), available at http://www.justice.gov/usao/az/press_releases/2012/

PR_01312012_Nez.html. If federal prosecutors receive public

credit for their good works—as they should—they should not

be able to hide behind the shield of anonymity when they

make serious mistakes.

We recognize that this court is not the proper venue for

direct discipline of Albert, so we will not state here that the

blow struck by him necessarily was one so foul as to require

some form of official sanction. We were not in district court

to see what occurred; Albert has not appeared before us to

explain himself; and this appeal is not directly about his misconduct, but rather about the question whether the Double

Jeopardy Clause bars a new prosecution. However, we do not

need a record greater or different than we have here to determine that Albert should not have misrepresented the transcript’s question. Accordingly, we are in a position to do three

things to ensure that this matter is handled properly following

this disposition: we remand the case to allow the district court

to consider dismissal with prejudice of the indictment as an

exercise of its supervisory powers and to prevent other misconduct in the future; we instruct the district court to consider

disciplinary options also pursuant to its supervisory powers;

and we note that the Office of Professional Responsibility

within the Department of Justice has the responsibility of

investigating allegations of misconduct by federal prosecutors. Whether the circumstances attendant to Albert’s misrepresentation attenuate or aggravate the misconduct is a matter

as to which the trial judge or officials in the Office of Professional Responsibility are in a better position to determine. 

[7] First, we remand to the district court to consider two

different courses of action that would deter future misconduct

like this since “[q]uite as important as assuring a fair trial . . .

is assuring that the circumstances that gave rise to the misconduct won’t be repeated in other cases.”

4 Kojayan, 8 F.3d at

4Lopez-Avila argued in her motion to dismiss in district court that the

indictment should be dismissed with prejudice pursuant to the Double

UNITED STATES v. LOPEZ-AVILA 1763
1324. If a request by the defense is made, one option on

remand may be for “the district court to determine whether to

retry the defendant[ ] or dismiss the indictment with prejudice

as a sanction for the government’s misbehavior.” Id. at 1325.

The remedy of dismissal with prejudice, which is strong medicine for the entire prosecutorial group, is available pursuant

to a district court’s supervisory powers over the attorneys who

practice before it. Id.; see also United States v. Chapman, 524

F.3d 1073, 1085 (9th Cir. 2008) (holding that the district court

did not abuse its discretion in dismissing an indictment with

prejudice where the prosecutor showed “reckless disregard for

the prosecution’s constitutional obligations”). 

[8] Second, the district court may want to discipline the

prosecutor directly. If it thinks it appropriate, the district court

has the power to issue an order to show cause why Albert

should not be disciplined. United States v. Hasting, 461 U.S.

499, 506 n.5 (1983). We state here once again that we express

no opinion on whether Albert in fact should be disciplined.

[9] Third and finally, we note that the district court is not

the sole institution with the authority to investigate and discipline prosecutorial misconduct. Within the Department of Justice, the Office of Professional Responsibility (OPR) is

required to “[r]eceive, review, investigate and refer for appropriate action allegations of misconduct involving Department

Jeopardy Clause, but she did not argue for a dismissal pursuant to the

court’s supervisory powers. Thus, that issue is not before us and we

express no opinion whether this case should be dismissed with prejudice

pursuant to the court’s supervisory powers. The fact that we affirm the

denial of Lopez-Avila’s motion to dismiss on double jeopardy grounds

does not preclude the district court from considering a motion to dismiss

on other grounds if a motion is made. See United States v. Simpson, 927

F.2d 1088, 1089 (9th Cir. 1991) (considering an appeal from a dismissal

with prejudice pursuant to the district court’s supervisory powers after the

Ninth Circuit had, in the same case, previously reversed a dismissal with

prejudice under the Due Process Clause). 

1764 UNITED STATES v. LOPEZ-AVILA
attorneys that relate to the exercise of their authority to . . .

litigate.” 28 C.F.R. § 0.39a(a)(1). If a complaint is filed, OPR

would therefore be required to review the conduct of the

Department attorney. Anyone may file a complaint with the

Office by sending a letter to the address listed on OPR’s website at http://www.justice.gov/opr/process.htm (last visited

January 4, 2012).5

* * *

The defense consented to a mistrial, and there is no evidence that the prosecution was attempting to “goad” the

defense into making the mistrial request—rather, the evidence

reveals that this is a case of a prosecutor crossing the line in

an attempt to “win at all costs.” Thus, the Double Jeopardy

Clause does not bar Lopez-Avila’s retrial. The district court’s

denial of that motion is therefore AFFIRMED. The case is

REMANDED for further proceedings.

5The website also includes the specific information that any letter of

complaint should include. 

UNITED STATES v. LOPEZ-AVILA 1765