United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2013 Decided July 5, 2013

No. 12-3070

UNITED STATES OF AMERICA,

APPELLEE

v.

WINSTON MCCALLUM,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cr-00234-1)

Lisa B. Wright, Assistant Federal Public Defender, 

argued the cause for appellant. With her on the briefs was 

A.J. Kramer, Federal Public Defender. Tony Axam Jr., 

Assistant Federal Public Defender, entered an appearance. 

Kristina L. Ament, Assistant U.S. Attorney, argued the 

cause for appellee. On the brief were Ronald C. Machen, Jr., 

U.S. Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, 

Kenneth F. Whitted, and Kathryn L. Rakoczy, Assistant U.S. 

Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney, 

entered an appearance.
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Before: HENDERSON and GRIFFITH, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge 

GINSBURG.

GINSBURG, Senior Circuit Judge: After the prosecutor 

repeatedly failed to meet his disclosure obligations, Winston 

McCallum moved for and obtained a mistrial. Shortly before 

retrial the prosecutor belatedly disclosed yet more information 

that McCallum had subpoenaed before the first trial. Arguing 

that he would have seen the first trial through to a verdict but 

for the Government’s latest disclosure violation, McCallum 

moved to dismiss the indictment under the Double Jeopardy 

Clause of the Fifth Amendment to the Constitution of the 

United States. The district court denied the motion because 

the prosecutor’s misconduct was not intended to goad 

McCallum into seeking a mistrial. We affirm that decision. 

I. Background

Shortly after midnight on July 28, 2010, Officers Alfonso 

Matos and Ismael Chapa of the Metropolitan Police 

Department (MPD) noticed McCallum sitting in front of his

apartment building. According to Officer Matos’s pre-trial 

testimony, McCallum was “leaning forward as if he was 

asleep or intoxicated.” The officers approached, but upon 

seeing them, Officer Matos testified, McCallum “got up and 

tried to run towards the door.” Officer Matos testified the

officers caught McCallum and placed him in handcuffs, using 

“two handcuffs linked together” because McCallum “was a 

larger individual.” Officer Matos asked McCallum whether 

he had anything illegal and McCallum replied, according to 

the officer, “I got cocaine on me.” Officer Matos testified 

that McCallum then somehow moved his hands, which were 
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handcuffed behind his back, towards the front right pocket of 

his pants whereupon, improbable as it may seem, a “bag of 

cocaine fell out.” The officers arrested McCallum and 

recovered more cocaine from his person. 

Some months later a grand jury charged McCallum with 

unlawful possession with intent to distribute 28 grams or 

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(iii), and with unlawful possession with intent to 

distribute 28 grams or more of cocaine base within 1,000 feet 

of a school, in violation of 21 U.S.C. § 860(a). As 

McCallum’s case inched toward trial, the Government 

committed a series of disclosure violations leading to, and 

then extending beyond, the district court’s declaration of a

mistrial based upon such violations. 

In February 2011 the district court held a hearing on 

McCallum’s motion to suppress physical evidence and 

statements. After cross-examining Officer Matos, 

McCallum’s counsel noticed a transcript of Matos’s grand 

jury testimony on the prosecutor’s desk; only then did the 

prosecutor provide the transcript to the defense. Because 

Officer Matos’s testimony before the grand jury was 

potentially inconsistent with his testimony at the suppression 

hearing, the district court permitted McCallum to recall 

Officer Matos for further cross-examination. The district 

court granted McCallum’s motion to suppress with respect to

physical evidence recovered from a search of his apartment 

after his arrest, but denied McCallum’s motion to suppress 

with respect to the drugs taken from his person at the time of 

arrest and the statements he made at the scene. 

After the suppression hearing McCallum’s counsel asked

the prosecutor whether Officer Chapa’s grand jury testimony 

contained exculpatory information. The prosecutor then
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turned over a transcript of Officer Chapa’s testimony. 

Because Officer Chapa’s testimony before the grand jury was 

inconsistent with Officer Matos’s testimony at the 

suppression hearing, the district granted McCallum’s request 

to reopen the suppression hearing. The court thereafter 

reaffirmed its denial of McCallum’s motion to suppress the 

drugs taken from his person and his statements at the scene. 

Before trial McCallum subpoenaed from the MPD all 

documents pertaining to complaints against Officers Chapa 

and Matos. The prosecutor, reporting there were no 

complaints against Officer Chapa and only two traffic-related 

complaints against Officer Matos, moved to quash the 

subpoena. The district court, however, instructed him to 

inquire further with the MPD. Soon thereafter the prosecutor

produced for the district court’s in camera inspection written 

summaries of statements Officers Chapa and Matos had made 

to MPD Internal Affairs Bureau in response to McCallum’s 

complaint about his arrest. The district court warned the 

prosecutor that the statements made by the officers were 

“probable Jencks [Act] material because ... the complaint filed 

by Mr. McCallum ... [was] about this very arrest that’s the 

subject of this case.” See 18 U.S.C. § 3500(b) (requiring the 

United States to produce, upon motion of the defendant, any 

relevant prior statement of a witness who has testified for the 

Government). Despite having promised to provide all Jencks 

Act material to the defense at least 10 days before trial, it was 

not until the morning trial was to begin that the Government 

gave defense counsel the summaries of the statements 

Officers Chapa and Matos had made to Internal Affairs, along 

with a “property book receipt” listing evidence recovered 

from the scene of the arrest. 

At trial McCallum’s counsel attempted to impeach 

Officer Matos with the summary of his statement to the 
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Internal Affairs Bureau. Officer Chapa testified that the 

summary did not accurately reflect his statement, which he 

said had been “audibly recorded.” The prosecutor told the 

district court “[t]his is the first I’ve learned ... there was an 

audio recording made” but he obtained and gave the recording

to the defense that evening. After listening to the recording, 

McCallum’s counsel moved to strike the testimony of 

Officers Chapa and Matos or, in the alternative, for a mistrial. 

The district court held the Government’s failure to give the 

recording to the defense prior to trial was “a violation under 

the Jencks Act” and therefore declared a mistrial, adding that

the second trial would be fair because “[p]resumably all of the 

Jencks material, as well as any other [required disclosures 

under] Brady, Giglio, Lewis and so on, will have been finally 

produced.” 

The district court’s presumption proved overly 

optimistic: Shortly before McCallum’s second trial, the 

Government submitted 17 more complaints against Officers 

Chapa and Matos for in camera review by the district court. 

The court ordered three of those complaints disclosed to the 

defense because they included allegations that the officers had 

falsely accused other individuals of possessing drugs. United 

States v. McCallum, 885 F. Supp. 2d 105, 110 (D.D.C. 2012). 

McCallum then moved to dismiss the indictment on the 

ground that his retrial would subject him to double jeopardy. 

McCallum claimed he would not have requested a mistrial 

had he been informed, as he should have been, of the 

complaints against Officers Chapa and Matos; accordingly, he 

argued, the district court should treat the case as if the mistrial 

had been declared not at the request of the defense but rather,

at the request of the Government and “over the objection of 

the defense.” The district court denied that motion; because 

McCallum had sought the mistrial, it held, double jeopardy 
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would bar his retrial only if “the prosecutor [had] goaded 

McCallum into requesting a mistrial.” 885 F. Supp. 2d at 114 

(citing Oregon v. Kennedy, 456 U.S. 667, 676 (1982)). On 

the contrary, the district court found, “the prosecutor’s 

conduct was neither intentional nor intended to provoke a 

mistrial,” and therefore McCallum lawfully could be retried. 

Id. at 115. 

II. Analysis

We have jurisdiction over this interlocutory appeal 

because “a pretrial order denying a motion to dismiss an 

indictment on double jeopardy grounds” comes within the 

collateral order doctrine and is therefore a “final decision”

within the scope of 28 U.S.C. § 1291. Abney v. United States, 

431 U.S. 651, 659 (1977); see generally Digital Equipment 

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867–68 (1994). 

McCallum does not challenge the factual findings underlying 

the court’s order, including the finding that the prosecutor’s 

conduct was not intended to provoke a mistrial. McCallum 

argues only that the order violates his right under the Double 

Jeopardy Clause, a question of law, which we review de novo. 

See United States v. Coughlin, 610 F.3d 89, 96 (D.C. Cir. 

2010).

The constitutional protection against double jeopardy

comprises not only the defendant’s right to be secure in a 

judgment of conviction or acquittal but also his “‘valued right 

to have his trial completed by a particular tribunal.’” Arizona 

v. Washington, 434 U.S. 497, 503 (1978) (emphasis added) 

(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). 

Although “retrial is not automatically barred when a criminal 

proceeding is terminated [prematurely] ..., the prosecutor 

must shoulder the burden of justifying the mistrial if he is to 

avoid the double jeopardy bar.” Id. at 505. It follows that 
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when a mistrial is declared over the objection of the 

defendant, retrial is permissible only if declaring a mistrial is 

manifestly necessary and no fault of the prosecution. 

Kennedy, 456 U.S. at 672. “[T]he hung jury [is] the 

prototypical example of manifest necessity.” United States v. 

Glover, 731 F.2d 41, 46 (D.C. Cir. 1984) (internal quotation 

marks omitted).

A different rule applies when a mistrial is declared at the 

instance of the defendant: 

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). ... 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. 

Kennedy, 456 U.S. at 676 (emphasis added). 

Because the mistrial in this case was declared upon

McCallum’s own motion, the district court applied the intent 

to goad standard announced in Oregon v. Kennedy. 

McCallum objects, however, that Kennedy “did not address a 

case ... where there was a second (hidden) layer of 

misconduct,” referring here to the Government’s failure to 

disclose the 17 complaints to the district court before his first 

trial. Being unaware of that misconduct, McCallum “could 

not have incorporated it into any ‘deliberate election’ to seek 

a mistrial.” “In this situation,” he argues, “the ‘goading’ 

standard just makes no sense: The [G]overnment cannot goad 

the defense into doing anything — let alone moving for a 
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mistrial — by engaging in misconduct the defense does not 

know about.” 

McCallum has identified a genuine puzzle. As a 

linguistic matter the word “goad” suggests action — the thrust 

of a stick, say, to drive a reluctant herd, or the taunts of a 

schoolyard bully to incite fisticuffs. A prosecutor’s failure to 

meet his disclosure obligations, the nature of which is inaction

and the existence of which is unknown, cannot goad a 

defendant into moving for a mistrial. If goading were 

essential, therefore, no disclosure violation by a prosecutor

could ever trigger the bar of double jeopardy. Perhaps that is 

the rule and the remedy is not that the defendant go free but 

that the prosecutor be sanctioned. Rather than be led to that 

broad conclusion by making a talisman of a single word, 

however, we focus not upon the search for a “goad” but 

instead upon the Supreme Court’s underlying concern, which 

is “the intent of the prosecutor.” Id. at 675. When a 

prosecutor deliberately causes the defendant to move for a 

mistrial, presumably because he believes the odds of getting a 

conviction will be better if he can get a fresh start, his intent is 

to “subvert the protections afforded by the Double Jeopardy 

Clause.” Id. at 676. Whether the prosecutor intends to obtain 

the mistrial by malfeasance or nonfeasance, action or inaction,

is irrelevant. 

Suppose a defendant moves for a mistrial on the ground 

that the jury has been tainted; meanwhile, the prosecutor has 

learned of exculpatory information that, if revealed, would 

cause the defendant to withdraw his motion and complete the 

trial, which is otherwise going well for the defendant; the 

prosecutor therefore decides to withhold the information with 

the express purpose of obtaining a mistrial. In this 

hypothetical case the defendant was not “goaded” by the 

prosecutor into seeking the mistrial but the prosecutor
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nonetheless, by his knowing inaction, intentionally caused the 

mistrial to be declared in order to gain a strategic advantage. 

In such a case, double jeopardy surely bars a second trial 

because the prosecutor “intended to provoke the defendant 

into moving,” or more precisely, adhering to his motion “for a 

mistrial.” Id. at 679. That the prosecutor did not, strictly 

speaking, “goad” the defendant into seeking a mistrial is 

immaterial. 

Even assuming, as we do, that a prosecutor’s failure to 

meet his disclosure obligations bars retrial under the Double 

Jeopardy Clause if and only if the failure was intended to and 

did cause the defendant to move for and obtain a mistrial, the 

intent of the prosecutor is a question of fact to be decided by 

the district court in the first instance. Id. at 675. Here the 

district court specifically found “the prosecutor’s conduct was 

neither intentional nor intended to provoke a mistrial.” 885 F. 

Supp. 2d at 115. We would review that finding for clear 

error, see Robinson v. Wade, 686 F.2d 298, 309 (5th Cir. 

1982) (“A finding that the Government’s acts do not amount 

to intentional misconduct ... will not be set aside unless shown 

to have been clearly erroneous”); cf. United States v. Meyer, 

810 F.2d 1242, 1244 (D.C. Cir. 1987) (“The clearly erroneous 

standard ordinarily governs review of a judge’s findings in a 

criminal case on issues other than the defendant’s guilt”), but 

the appellant here does not challenge it. Nor is the district 

court’s finding that the prosecutor’s conduct was 

unintentional infected by plain error. See United States v. 

Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1989) (“[E]ven though 

an issue was not raised ... on appeal, the issue would not be 

deemed [forfeit] had it been ‘a case of plain error in which we 

should reverse on our own motion’” (quoting United States v. 

Greschner, 802 F.2d 373, 380 (10th Cir. 1986))); see also

FED. R. CRIM. P. 52(b). 
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III. Conclusion

We do not condone the conduct of the prosecution in this 

case; far from it. The Government’s dereliction of its duty to 

disclose information deprived the defendant of the 

opportunity to plan and to execute his trial strategy — which 

the Government can now more fully anticipate when the case 

is retried. Because the prosecutor’s several violations were 

unintentional, however, retrial of McCallum is not barred by 

the Double Jeopardy Clause. The order of the district court 

denying the motion to dismiss the indictment is therefore 

Affirmed.