United States Court of Appeals

For the First Circuit

No. 07-2066

UNITED STATES OF AMERICA,

Appellee,

v.

EDWIN AVILES-SIERRA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

 Lynch, Chief Judge, and

Lipez and Howard, Circuit Judges.

Vernon Benet Miles, Assistant United States Attorney, with

whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney, and Julia M.

Meconiates, Assistant United States Attorney, were on brief for

appellee.

Hector L. Ramos Vega, with whom Joseph C. Laws, Jr., Federal

Public Defender, and Hector E. Guzman-Silva, Assistant Federal

Public Defender, were on brief for appellant.

July 11, 2008
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LIPEZ, Circuit Judge. Defendant-appellant Edwin AvilesSierra was tried on charges of possessing and importing cocaine

with the intent to distribute it. His trial ended after he

requested and was granted a mistrial. He argues, in this

interlocutory appeal from a denial of his motion to dismiss on

double jeopardy grounds, that his reprosecution should be barred

because the government deliberately provoked the mistrial. The

district court concluded, as a factual matter, that the mistrial

was not deliberately provoked. Finding no clear error in that

conclusion, we affirm.

I.

On November 27, 2006, a canine alert led agents from

Immigration and Customs Enforcement (ICE) to find a plastic bag

containing cocaine hidden in Aviles's van when he arrived in Puerto

Rico aboard a car ferry from the Dominican Republic. Aviles was

questioned by ICE agents and arrested. He was indicted on charges

of possessing and importing cocaine into the United States with the

intent to distribute, in violation of 21 U.S.C. §§ 952(a) and

841(b)(1)(A)(ii).

On the second day of his trial, during the prosecution's

case-in-chief, ICE Agent Angelico Santiago-Rivera testified that

the defendant had been asked by agents "if he was going to take the

blame for it [the cocaine], and he said yes." Defense counsel

immediately objected on grounds that he had no prior knowledge of
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this inculpatory statement by the defendant and that it was not

part of the discovery provided by the government prior to trial.

He then moved for a mistrial. 

The court took the motion under advisement during the

lunch break. Upon returning from the recess, the court asked the

prosecutor whether he had knowledge of the inculpatory statement.

The prosecutor stated that, although he had talked with Agent

Santiago about the case, he "did not recall specifically that

information being indicated." The court noted that the inculpatory

statement did not appear in the agent's written report.

Defense counsel then questioned Agent Santiago, who

admitted that he had not included the inculpatory statement in his

written report and stated that he did not remember whether he had

told the prosecutor about the statement. Defense counsel moved for

a judgment of acquittal and renewed his motion for a mistrial on

the basis of the discovery violation by the government. In his

argument, counsel also cited several previous cases in which, he

alleged, the same prosecutor had committed discovery violations. 

The prosecutor responded by stating that, "in an effort

to protect [his] own credibility, [his] own reputation, as well as

that of the agency and the agent, [he was] not opposed to a

mistrial if that's what we have to do in order to protect

Defendant's interest." Although the court stated that it had "a

couple of cases" that would have supported a decision to deny the
On appeal, Aviles does not pursue the theory that dismissal 1

was warranted as a sanction for the discovery violation itself.

1 A single line in Aviles's memorandum states that "[i]f [the

2

2 prosecutor] asked and the agent withheld the information from him,

3 the government is chargeable with that conduct." However, Aviles

4 never asserted that the agent had, in fact, intentionally withheld

5 the information.

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defendant's motions, the court nevertheless agreed to grant the

mistrial motion because both parties had now requested a mistrial.

After the grand jury returned a superseding indictment,

Aviles moved for dismissal of the indictment on double jeopardy

grounds and because of the prosecution's discovery violation. The 1

memorandum of law accompanying his motion described what Aviles

perceived to be the gravity and inexplicability of the discovery

violation, and stated that once the agent had testified about the

inculpatory statement "a mistrial motion was guaranteed." However,

the memorandum stopped short of asserting that the discovery

violation was intentional or that the statement had been

intentionally withheld – by either the prosecutor or the case agent

– and then revealed at trial for the purpose of provoking a

mistrial. 

2

The district court denied the motion to dismiss. In its

written decision, the court explained:

The Court cannot find that the United States

acted to force Aviles into requesting a

mistrial deliberately. The Court asked the

Assistant U.S. Attorney in the case if he had

heard the statement before that day, and he

represented to the Court that he had not.
Aviles also moved to suppress the inculpatory statement he 3

allegedly made to Agent Santiago on the ground that he had not been

read his Miranda rights prior to making the statement. The court

found that Aviles had "not brought forth sufficient evidence to

controvert the testimony of Agent Santiago" that Aviles had been

given Miranda warnings in Spanish before the questioning began.

Aviles does not appeal this ruling.

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Furthermore, Agent Santiago had not included

the statement in his report and when answering

questions from defense counsel he testified

that he did not remember telling the Assistant

U.S. Attorney about the statement. Moreover,

even without the statement, the evidence

presented at trial was sufficient to support a

guilty verdict and any prejudice that Aviles

could have suffered because the jury heard the

statement would be negligible. Under the

circumstances, the Court does not find any bad

faith on the United States' part in not

disclosing the statement.3

Aviles then filed this appeal.

II.

Although a defendant cannot ordinarily pursue an

immediate appeal from an interlocutory order in a criminal case, we

permit interlocutory appeals from denials of motions to dismiss on

double jeopardy grounds. Abney v. United States, 431 U.S. 651, 662

(1977); United States v. Toribio-Lugo, 376 F.3d 33, 37 (1st Cir.

2004). We review the district court's denial of such a motion to

dismiss for abuse of discretion. Toribio-Lugo, 376 F.3d at 38. We

accept the district court's factual findings unless they are

clearly erroneous and review rulings of law de novo. Id.

The Double Jeopardy Clause provides that no person shall

be "subject for the same offense to be twice put in jeopardy of
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life or limb." U.S. Const. amend. V. However, when a defendant

consents to a mistrial, double jeopardy does not bar reprosecution

unless "the conduct giving rise to the successful motion for a

mistrial was intended to provoke the defendant into moving for a

mistrial." Oregon v. Kennedy, 456 U.S. 667, 679 (1982). As the

Supreme Court has explained, mere prosecutorial error is

insufficient:

Prosecutorial conduct that might be viewed as

harassment or overreaching, even if sufficient

to justify a mistrial on defendant's motion

. . . does not bar retrial absent intent on

the part of the prosecutor to subvert the

protections afforded by the Double Jeopardy

Clause. 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." United States v. Scott, 437 U.S. 82,

93 (1978). Where prosecutorial error even of a

degree sufficient to warrant a mistrial has

occurred, "[t]he important consideration, for

purposes of the Double Jeopardy Clause, is

that the defendant retain primary control over

the course to be followed in the event of such

error." United States v. Dinitz, 424 U.S.

600, 609 (1976). Only where the 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. at 675-76.

On appeal, Aviles argues that Agent Santiago's surprise

testimony regarding the alleged inculpatory statement "disrupted

the entire 'game plan' of the defense attorney." Aviles explains

that "the prosecutor knew that as soon as this statement/confession
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was uttered in court a motion for mistrial was forthcoming." He

then concludes that "[i]t was the government's intent to force the

defense into requesting a mistrial by placing into evidence the

aforementioned admission."

Aviles makes two circumstantial arguments aimed at

showing that the prosecutor intended to "goad" the defendant into

requesting a mistrial in this case. First, he details the

defense's theory of the case, which he claims had become evident to

the prosecution through the content of defense counsel's crossexamination of government witnesses. He claims that the

prosecution had not anticipated the strength of the defense case.

Thus, he concludes that "the case had become problematic to the

prosecution and stopping it until it could regroup was essential."

This argument is foreclosed by the district court's

finding that the prosecutor was unaware of the inculpatory

statement prior to Agent Santiago's testimony on the stand.

Nothing in the record prompts us to second-guess the district

court's factual finding that the prosecutor had no prior knowledge

of the statement. Because the prosecutor did not know of the

statement, he could not have intentionally elicited the testimony

for the purpose of goading the defendant into moving for a

mistrial, no matter what weaknesses he perceived in his case

against the defendant.
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Second, Aviles points to alleged discovery violations by

the same prosecutor in other cases. None of those cases involved

a mistrial. Moreover, the negligent conduct he describes in those

cases is not probative of whether the prosecutor intentionally

acted to provoke a mistrial in Aviles's case.

On appeal, Aviles argues for the first time that it was

the case agent who intentionally provoked the mistrial. Although

the intentional conduct of an agent could be relevant to an inquiry

into whether the government goaded the defense into moving for a

mistrial, see United States v. Perez Sanchez, 806 F.2d 7, 8-9 (1st

Cir. 1986), Aviles's failure to assert before the district court

that the case agent intentionally provoked the mistrial means that

this claim merits only plain error review, see United States v.

McIntosh, 380 F.3d 548, 555 (1st Cir. 2004). There is no error

here, plain or otherwise, because there is no evidence in the

record to suggest that Agent Santiago took it upon himself to

intentionally withhold the inculpatory statement and then spring it

on the defense at trial for the purpose of goading the defense into

requesting a mistrial.

On this record, the district court did not err in

concluding that the government had no intent to force Aviles into

requesting a mistrial. Accordingly, the denial of the motion to

dismiss is affirmed.

So ordered.