United States Court of Appeals

For the First Circuit

No. 20-1073

UNITED STATES,

Appellee,

v.

RAYMOND ALEXANDER GARRAWAY,

Defendant, Appellant.

No. 20-1074

UNITED STATES,

Appellee,

v.

CORDWELL NATHANIEL BENNETT,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Lynch, Lipez, and Barron,

Circuit Judges.

José B. Vélez Goveo for appellants.

José B. Vélez Goveo, with whom Vélez & Vélez Law Office were

on brief, for appellant Raymond Alexander Garraway.
Jorge E. Rivera-Ortíz on brief for appellant Cordwell 

Nathaniel Bennett.

Javier Alberto Sinha, with whom W. Stephen Muldrow, United 

States Attorney, Mariana E. Bauzá-Almonte, Assistant United States 

Attorney, and Francisco A. Besosa-Martinez, Assistant United 

States Attorney, were on brief, for appellee.

November 15, 2021
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LYNCH, Circuit Judge. Raymond Alexander Garraway and 

Cordwell Nathaniel Bennett, convicted at trial for possession with 

intent to distribute marijuana, successfully moved for a mistrial 

on the basis of improper arguments made by the prosecution at 

closing. The government now seeks to retry them, and Garraway and 

Bennett moved to dismiss, arguing that retrial would violate the

Double Jeopardy Clause. The district court denied the motion to 

dismiss. United States v. Trapp, No. 16-159, 2019 WL 6974767, at 

*1 (D.P.R. Dec. 18, 2019). Because the district court did not

abuse its discretion in finding that the prosecution did not 

intentionally provoke a mistrial, we affirm.

I.

On March 1, 2016, a U.S. Coast Guard law enforcement 

detachment aboard a Dutch naval ship came across an eighty-foot 

fishing vessel while on routine patrol in the Caribbean. The Coast 

Guard team captured video of the crew of the fishing vessel 

jettisoning objects overboard.

The Coast Guard deployed two rigid-hulled inflatable 

boats, one to intercept the fishing vessel and one towards the 

debris. The boat dispatched in the direction of the jettisoned 

debris recovered nineteen bales of suspected narcotics. Samples 

from the bales were tested and found to be marijuana. In total, 

the marijuana bales weighed 399.4 kilograms. 
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The second team questioned the individuals aboard the 

fishing vessel. The Coast Guard team took samples from the fishing 

vessel which were tested using an Ion Scan 400B device, which 

detects the presence of narcotics. No narcotics were detected. 

The Coast Guard team found no contraband aboard the fishing vessel. 

Two of the bales that had been recovered preliminarily tested 

positive for marijuana, and the Coast Guard took the crew into 

custody. On March 16, 2016, Garraway and Bennett, along with the 

third man aboard the fishing vessel, Michael Anthony Trapp, were 

indicted on two counts of possession with intent to distribute 100 

kilograms or more of marijuana. 

Their jury trial began on September 4, 2018. The 

prosecution introduced into evidence the video taken by the Coast 

Guard of objects being thrown out of the fishing vessel, testimony 

of a Coast Guard officer that the marijuana bales were recovered 

near the fishing vessel and that there were no other vessels in 

the area, and testimony that rope was found on the fishing vessel 

which appeared identical to the rope used to bind the bales of 

marijuana. The defense theory was that the bales of marijuana 

recovered by the Coast Guard had never been aboard their fishing 

vessel. The defendants pointed to the Ion Scan results which 

showed that marijuana was not detected aboard the fishing vessel, 

as well as the fact that the bales of marijuana were found between 

five and seven nautical miles from the fishing vessel. They also 
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introduced testimony that the seas had been rough, and that they 

were throwing garbage and debris, not bales of marijuana, off the 

fishing vessel because it endangered them to have loose debris 

rolling around the deck.

The prosecution and defense entered into several factual 

stipulations concerning the chain of custody of the bales of 

marijuana and the details of the Ion Scan testing and results. 

The defense relied on these stipulations to establish the negative 

Ion Scan results and where the bales of marijuana were found. The 

stipulations contained no information about whether or how

wrapping the drugs would affect the accuracy of the Ion Scan 

results, and no evidence to that effect was presented. During the 

closing argument rebuttal, the prosecution argued to the jury that 

the wrappings on the bales of marijuana prevented the Ion Scan 

from detecting its presence on the fishing vessel. The jury 

convicted.

The defendants moved for an acquittal and for a mistrial. 

The district court denied the motion for acquittal. However, it

granted the motion for mistrial on the basis of the prosecution's 

statements about the Ion Scan results being affected by the 

wrapping on the marijuana. The district court found the statements 

were not a permissible inference to argue from the evidence 

introduced at trial. It found that the prosecution made the 

statement deliberately, though not in bad faith, and that the court
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could not be confident, given the totality of the circumstances, 

that the prosecution's argument did not affect the jury's decision 

to convict. The court did note in a footnote that there was no 

double jeopardy bar to retrial, finding that "there is no 

indication that in making the statement in question, the prosecutor 

had the intent to goad defendants into moving for a mistrial or to 

harass them out of fear of acquittal due to insufficient evidence 

in order to marshal a more favorable opportunity to convict the 

defendants in a subsequent trial."

Nevertheless, when the prosecution began to retry the 

defendants, the defendants filed a joint motion to dismiss for 

violation of the Double Jeopardy Clause. They argued that the 

prosecution deliberately made the improper statement at closing in 

order to goad the defendants into moving for a mistrial, so that 

the prosecution would have a better chance at convicting in a 

subsequent trial.

The district court denied the motion, finding that the 

prosecution did not intend to provoke a mistrial. In making its 

decision, the district court also concluded that "this is not a 

case where the evidence led a reasonable person to conclude that 

acquittal was likely at the time of the objected comment, and that 

misconduct had to be engaged in to prevent it."
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II.

The standard of review applicable to a motion to dismiss 

on double jeopardy grounds following a mistrial is abuse of 

discretion. United States v. Toribio-Lugo, 376 F.3d 33, 38 (1st 

Cir. 2004). The district court's findings of fact are reviewed 

for clear error, while conclusions of law are reviewed de novo.1 

Id.

The Double Jeopardy Clause, U.S. Const. amend. V, cl. 2, 

"protects not only against double punishment but also against being 

'twice put to trial for the same offense.'" United States v. Suazo, 

14 F.4th 70, 74 (1st Cir. 2021) (quoting Abney v. United States, 

431 U.S. 651, 661 (1977)). Not all reprosecution is barred, and 

mistrials are a common exception. See Toribio-Lugo, 376 F.3d at 

38. Retrial is, however, barred after a mistrial where "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); see also United States

v. Gary, 74 F.3d 304, 315 (1st Cir. 1996), abrogated on other 

grounds by Johnson v. United States, 576 U.S. 591 (2015). 

Garraway and Bennett argue that the district court erred 

in finding that the prosecution did not intend to provoke them to 

1 Because the defendants were tried together, raise the 

same issues, and make the same arguments in their briefs, we 

address their arguments together. The third co-defendant, Michael

Anthony Trapp, is not involved in this appeal. 
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move for a mistrial by making improper arguments at closing. They 

contend that this intent can be inferred from what they 

characterize as a pattern of overreaching with respect to the 

stipulations by the government and a weak response to the 

defendants' motion for mistrial, the timing of the improper 

statement at a point when the defendants could no longer rebut it, 

and what they consider the overall weakness of the government's 

case. They also point out that the government now seeks to 

introduce new expert testimony while also compelling the 

defendants to enter into the same stipulations as in the first 

trial, which they argue is evidence that the prosecution 

intentionally threw the first case in order to make a stronger 

case on retrial.

The defendants do not challenge the legal standard the 

district court used to decide their motion; rather, they challenge 

only the district court's finding that the prosecution did not 

intend to provoke a mistrial. This finding is not clearly 

erroneous.

The district court determined that, at the time of 

closing argument, an acquittal was not likely. Though defendants 

characterize the prosecution's case as "weak," the trial court's 

determination is supported by the record. The prosecution 

introduced video of the defendants throwing debris out of the 

fishing vessel. The prosecution showed that the Coast Guard had 
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recovered nineteen bales of marijuana from the water, and that

there were no other vessels in the vicinity. Perhaps most damning, 

the prosecution introduced testimony that the rope used to bind 

the bales was the same as rope found on the fishing vessel. The 

defendants introduced evidence to try to neutralize the 

prosecution's case, including offering an alternative explanation 

for why the crew was jettisoning debris from the fishing vessel 

and emphasizing the Ion Scan's negative findings. However, given

the substantial case mounted by the prosecution, the record 

supports the district court's assessment of the likelihood of 

acquittal. 

In light of the district court's supportable finding 

that acquittal was not likely, the defendants' arguments about the 

timing of the statement also fail. Nothing about the timing of 

the improper argument suggests that the district court's finding 

was clearly erroneous and nothing in Kennedy supports a rule that 

improper arguments made late in the trial are necessarily intended 

to provoke a mistrial. See United States v. Jozwiak, 954 F.2d 

458, 460 (7th Cir. 1992) ("Only a prosecutor who thinks the trial 

going sour -- or who seeks to get just far enough into the trial 

to preview the defense -- would want to precipitate a mistrial.").

The defendants' argument that the government has 

benefitted from previewing their arguments at trial and 

strengthening its own case on retrial ignores that the defendants 
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benefit similarly from the declaration of a mistrial. See United 

States v. Garske, 939 F.3d 321, 335 (1st Cir. 2019) (noting that 

"the purported advantage works both ways . . . . [as] the 

defendants have previewed the government's case and are now better 

positioned to defend against it"). The government, which bears 

the burden of proof, faces the risk at retrial that witnesses' 

memories may dull or witnesses may become unavailable, in addition 

to the need to expend limited resources to retry an entire case. 

See United States v. Lun, 944 F.2d 642, 646 (9th Cir. 1991) ("'If 

the defendant consents to a mistrial, the prosecutor must go to 

the time, trouble, and expense of starting all over with the 

criminal prosecution.' Witnesses may disappear or forget their 

testimony after the long delay." (citation omitted) (quoting 

Kennedy, 456 U.S. at 686 (Stevens, J., concurring))); see also

Jozwiak, 954 F.2d at 460 ("Trying one defendant twice means, for 

a prosecutor with limited resources, letting some other defendant 

go.").

The defendants also argue the prosecution "barely 

objected" to their motion for a mistrial. Again, this is not so. 

The trial court found that the government had made a "comprehensive 

response." This too is supported by our review of the government's 

response to the defendants' motion for mistrial and is not clearly 

erroneous. Though the district court ultimately disagreed, the 

government defended its statements at closing as reasonable 
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inferences from the evidence it presented at trial and did not 

make merely a pro forma response to the defendants' motion. After 

overseeing the entire trial and considering the defendants' motion 

for a mistrial and the prosecution's opposition, the district court 

specifically found that the prosecutor believed he was arguing a 

permissible inference from the evidence.

In all, the record supports the government's contention, 

and the district court's finding, that the government did not 

intentionally provoke a mistrial. The government presented a 

strong case at trial. At the point before the prosecution made 

its closing rebuttal argument, an acquittal was not likely. The 

prosecution vigorously opposed the defendants' motion for a 

mistrial. Any opportunity the prosecution will have to adjust its 

case in response to what occurred at the first trial will also be 

afforded to the defendants. 

As the district court pointed out in denying the 

defendants' double jeopardy motion, it "presided over the trial," 

affording it a better vantage point than ours to assess the intent 

of the prosecution. Absent clear evidence from the record that 

the district court's finding as to the intent to provoke a mistrial

is unsupported, we will not supplant its judgment with our own. 

No such evidence exists here; rather, the record amply supports 

the district court's decision.
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III.

The order of the district court is affirmed.