* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________________________

No. 98-40475

______________________________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

LARRY SAMUEL,

Defendant-Appellant.

_____________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(1:97-CR-120-2)

_____________________________________________

March 5, 1999

Before JOLLY, WIENER, and PARKER, Circuit Judges. 

PER CURIAM:*

In this direct criminal appeal, Defendant-Appellant Larry

Samuel insists that the district court erred in ordering a new

trial rather than entering a judgment of acquittal on grounds of

double jeopardy as the proper remedy for the mistrial caused by

prosecutorial misconduct during course of Samuel’s jury trial. The

foundation of Samuel’s double jeopardy argument in support of
 

1 456 U.S. 667 (1982)

 

2 Id. at 678-79. See also United States v. Botello, 991

F.2d 189, 192-93 (5th Cir. 1993); United States v. Landerman, 109

F.3d 1053, 1068 (5th Cir. 1997).

 

3 See Kennedy, 456 U.S. at 675; United States v. Barcelona,

814 F.2d 165, 167-68 (5th Cir. 1987).

 

4 Barcelona, 814 F.2d at 168.

2

acquittal is the rule articulated by the Supreme Court in Oregon v.

Kennedy,

1 that when a defendant’s well-taken motion for a mistrial

is based on prosecutorial misconduct that was intended to “goad”

the defendant to make such a motion, double jeopardy will bar a

second prosecution.2 When, during the course of a jury trial, some

conduct of the prosecution essentially leaves the defendant no

choice but to move for a mistrial, and leaves the trial court no

choice but to grant one, a contention by the defendant that such

conduct was intended by the prosecution to goad the defendant into

making a mistrial motion requires the trial court to review all the

objective facts and circumstances and make a finding of fact as to

whether the prosecution had such an intent.3 We will uphold the

district court’s factual finding on intent unless it is clearly

erroneous.4 In reviewing a finding by the district court whether

the prosecution’s misconduct that clearly entitles the defense to

a mistrial was undertaken with the intention of goading the defense

into making such a motion, we too examine that conduct in light of

the entire record to determine whether the trial court clearly

erred in its finding regarding intent to goad.

We have now completed such a record review and have considered
3

the district court’s finding in light thereof and in light of the

applicable law and the arguments set forth by opposing counsel in

their respective appellate briefs and in their oral argument to

this court. As a result of that consideration we are not left with

the distinct impression that the district court was wrong in

finding that the prosecution did not intend to goad the defense

into moving for a mistrial, that is, we do not conclude that the

court was clearly erroneous. It follows that this non-clearly

erroneous district court finding that the government’s misconduct

was not taken with the intent to goad the defense to move for a

mistrial obviates the need for a double-jeopardy judgment of

acquittal pursuant to the rule of Kennedy and its progeny.

Consequently, the rulings of the district court in declaring a

mistrial, rejecting acquittal, and ordering a new trial, are, in

all respects,

AFFIRMED.