IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20360

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JUAN GUTIERREZ; JUAN GUTIERREZ ALVAREZ,

Defendants-Appellants

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CR-261-3

USDC No. 4:12-CR-261-4

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

A second superseding indictment charged Juan Gutierrez (Gutierrez) 

and Juan Gutierrez Alvarez (Alvarez) with possession with intent to distribute 

500 grams or more of a mixture or substance containing a detectable amount 

of methamphetamine and conspiracy to do the same. On the third day of trial, 

after the prosecutor cross-examined Alvarez, the district court granted

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 27, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-20360 Document: 00513021393 Page: 1 Date Filed: 04/27/2015
No. 14-20360

defendants’ request for a mistrial. In granting the mistrial, the district court 

cited instances where it believed the prosecutor tried to circumvent the court’s 

order that the prosecutor not delve into matters of immigration status. 

Thereafter, Gutierrez and Alvarez filed a joint motion to dismiss, arguing that 

the prosecutor had provoked a mistrial in violation of the Double Jeopardy 

Clause. The district court denied the motion to dismiss, finding that the 

prosecutor did not intend to provoke a mistrial.

This court reviews the denial of a motion to dismiss on double jeopardy 

grounds de novo, and accepts as true the district court’s underlying factual 

findings unless clearly erroneous. United States v. Dugue, 690 F.3d 636, 637-

38 (5th Cir. 2012). A defendant generally waives double jeopardy protection 

by consenting to a mistrial. United States v. Botello, 991 F.2d 189, 192 (5th 

Cir. 1993). Nevertheless, the Supreme Court has recognized a narrow 

exception to this general rule; a defendant who was goaded into seeking a 

mistrial may invoke double jeopardy protections to avoid a retrial. See Oregon 

v. Kennedy, 456 U.S. 667, 676 (1982). Although the prosecutor in this case 

acted improperly, prosecutorial misconduct alone—even harassment or 

overreaching—is not enough for a retrial to result in a double jeopardy 

violation. Id. at 675-76. Gross negligence by the prosecutor, or even 

intentional conduct that seriously prejudices the defendant, is insufficient by 

itself to apply the double jeopardy bar. United States v. Wharton, 320 F.3d 

526, 531-32 (5th Cir. 2003). Instead, there must be intent on the part of the 

prosecutor to subvert the protections afforded by the Double Jeopardy Clause. 

Kennedy, 456 U.S. at 676. Under this narrow standard, the court must 

examine the “objective facts and circumstances” to determine the prosecutor’s 

intent. Kennedy, 456 U.S. at 675. 

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No. 14-20360

Considering the facts and circumstances of the instant case, the district 

court’s finding that the prosecutor did not intend to provoke a mistrial in 

violation of the Double Jeopardy Clause was not clearly erroneous. In the face 

of the district court’s factual finding that the prosecutor’s improper actions 

were not intended to cause a mistrial, Gutierrez and Alvarez are unable to cite 

to any concrete evidence, beyond mere speculation, of the prosecutor’s “clear 

intent” to provoke a mistrial. See Dugue, 690 F.3d at 638. Moreover, the 

prosecutor in this case vigorously opposed a mistrial when the defendants 

requested it, which militates against a finding that the prosecutor intended to 

cause a mistrial. See Wharton, 320 F.3d at 532. Finally, the manner in which 

the prosecutor tried to elicit information about Alvarez’s immigration status 

suggests the he did not intend to provoke a mistrial. “Had the prosecutor 

actually intended to provoke a mistrial, he could have violated the court’s 

limitation by expressly [asking Alvarez about his immigration status]. But he 

did not do so.” See United States v. Singleterry, 683 F.2d 122, 125 (5th Cir. 

1982). 

In view of the foregoing, the district court’s judgment is AFFIRMED.

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 Case: 14-20360 Document: 00513021393 Page: 3 Date Filed: 04/27/2015