FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        January 13, 2015

                                                                           Elisabeth A. Shumaker
                                    TENTH CIRCUIT                              Clerk of Court



 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                               No. 13-2212
 v.                                                  (D.C. No. 1:08-CR-01541-MV-1)
                                                                 (D.N.M.)
 FRANCISCO BURCIAGA,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.



       The government charged and twice tried Francisco Burciaga for knowingly and

intentionally possessing with intent to distribute one kilogram or more of heroin in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). His first trial ended in a mistrial after

the prosecutor improperly attempted to impeach Burciaga with an e-mail Burciaga’s

attorney sent to the prosecutor regarding Burciaga’s willingness to plead guilty to the

charge. Before his second trial, Burciaga moved to dismiss the charge on double jeopardy


*      This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
grounds. The district court denied the motion, concluding that although the prosecutor

had acted negligently and carelessly, he did not intentionally provoke the mistrial. After a

jury convicted Burciaga, he appealed the denial of his motion to dismiss. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                       FACTUAL AND PROCEDURAL BACKGROUND

       This is the second appeal in this case. In the first, we reversed the district court’s

order suppressing more than 17 kilograms of heroin found in Burciaga’s car. See United

States v. Burciaga, 

, 1230 (10th Cir. 2012).

       On remand, toward the end of the first trial, Burciaga testified on direct

examination that although he had pled guilty to previous crimes, he had not pled guilty to

this crime because he was not guilty:

       Q: And why did you plead [guilty to other, previously charged crimes]?
       A: Because I was guilty.
       ***
       Q: Okay. Have you ever considered accepting a plea and pleading guilty in
       this case?
       A: No.
       Q: Why is that?
       A: Because I’m not guilty.

       The following day, in an attempt to impeach this testimony, the prosecutor

questioned Burciaga on cross-examination:

       Q: Okay. Yesterday, you stated on direct examination that you never wanted to
       plead guilty in this case, right?
       A: Correct. Never.
       Q: Why is it your attorney came to me with a proposed plea in this case last
       spring?

       Defense counsel objected, and the district court immediately dismissed the jury.


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The district court advised the parties it was considering declaring a mistrial and heard

argument from both sides. The prosecutor opposed a mistrial and defended his question,

arguing he was entitled to impeach Burciaga’s testimony with an e-mail from Burciaga’s

attorney advising the prosecutor that if the government offered Burciaga five years “he’d

take it in a heartbeat.” But defense counsel requested a mistrial, arguing the question was

improper because the e-mail regarding plea negotiations was inadmissible under Fed. R.

Evid. 410.

       Seeking to salvage the trial, the district court asked the parties to propose a

limiting instruction to cure any prejudice attributable to the prosecutor’s question.

Although the prosecutor worked with defense counsel in drafting the proposed

instruction, the court eventually concluded the prejudice to Burciaga from the

prosecutor’s improper question could not be cured, and declared a mistrial.

       Before Burciaga’s second trial, he moved to dismiss the charge against him on

double jeopardy grounds. The district court denied the motion, finding the prosecutor did

not subjectively intend to force Burciaga to request a mistrial. Following his second trial,

a jury convicted Burciaga of the single drug possession charge, and the district court

sentenced him to a 20-year mandatory minimum sentence under 21 U.S.C.

§ 841(b)(1)(A) based on a prior felony drug offense.1 Burciaga appeals the district court’s


       1
         Burciaga challenges his 20-year sentence because the jury did not find the fact of
his prior conviction beyond a reasonable doubt. Burciaga concedes this issue is controlled
by Almendarez-Torres v. United States, 

(1998), which held that that a prior
felony conviction is a sentencing factor that need not be pleaded in the indictment or
decided by a jury. See also United States v. Apperson, 

, 1213 (10th Cir.
2006). Indeed, Burciaga concedes he raises this issue only to preserve it for Supreme
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denial of his motion to dismiss.

                                         DISCUSSION

       The Double Jeopardy Clause “protects a criminal defendant from repeated

prosecutions for the same offense.” Oregon v. Kennedy, 

, 671 (1982). It

provides that no person “shall . . . for the same offence . . . be twice put in jeopardy of life

or limb.” U.S. Const. amend. V. Ordinarily, the Double Jeopardy Clause does not bar

reprosecution when, as here, the first trial ended in a mistrial at the defendant’s request,

even if the mistrial was due to prosecutorial error. United States v. Jorn, 

,

485 (1971). The government cannot, however, retry a defendant if it intentionally

provoked the defendant to request a mistrial. United States v. Valadez-Camarena, 

, 1163 (10th Cir. 1998).

        The standard for satisfying this exception to the general rule permitting

reprosecution is “extremely exacting.” Earnest v. Dorsey, 

, 1130 (10th Cir.

1996). The Double Jeopardy Clause bars retrial only “‘where the prosecution

intentionally goads the defense, not where the prosecution is mistaken, careless, or even

harassing.’” United States v. Tafoya, 

, 1126 (10th Cir. 2009) (quoting

). Thus, it requires a court to make a finding of fact

regarding the prosecutor’s subjective intent; “[i]nferring the existence or nonexistence of

intent from objective facts and circumstances.” 

.2


Court review.
       2
         Burciaga argues this Court should not follow the subjective intent test adopted in
Kennedy, which this Court applied in Tafoya, Valadez-Camarena, and other cases. This
Court, however, is bound to follow Kennedy (a U.S. Supreme Court case) and Tafoya (a
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       Here, Burciaga challenges the district court’s finding that the prosecutor did not

intend to force a mistrial by mentioning Burciaga’s attorney’s attempt to engage in plea

negotiations. We review this finding for clear error. 

; Valadez-

. A factual finding is clearly erroneous if it is without factual

support in the record, or if, upon reviewing the record, we have “a definite and firm

conviction” that the district court made a mistake. 

. “‘[W]e view

the evidence in the light most favorable to the district court’s ruling and must uphold any

district court finding that is permissible in light of the evidence.’” 

v. United States, 

, 813 (10th Cir. 1998)).

        Burciaga first argues the prosecutor’s question so clearly violated Federal Rule of

Evidence 410 that the prosecutor, given his years of experience, would necessarily have

known it would cause a mistrial. In support, Burciaga compares the facts of this case to

those in Tafoya. There, the trial court granted a mistrial after a first-year federal

prosecutor asked a government witness, “What happened after that?” and thereby elicited

a response that violated the district court’s pretrial limine order. 

The

district court denied Tafoya’s subsequent motion to dismiss the charge against him, and

this court affirmed, relying on considerations that included the prosecutor’s inexperience,

the prosecutor’s effort to craft a curative instruction, and the open-ended nature of the

question. 

1127.

        As Burciaga points out, the prosecutor’s question here clearly was more

problematic than the seemingly innocuous, “What happened after that?” in Tafoya.

published decision of another panel of this Court). See 

.
                                               5
Compare 

Indeed, the district court here described the prosecutor’s question as

“highly improper” and “careless,” revealing “poor judgment” and “negligent disregard”

for Burciaga’s rights. Nevertheless, the district court found the prosecutor offered a

sincere and researched (albeit incorrect) explanation for asking the question—to impeach

Burciaga’s prior testimony regarding plea negotiations—and the prosecutor worked

diligently with defense counsel to propose a limiting instruction that would minimize any

prejudice to Burciaga. We conclude the record supports the district court’s finding that

the nature of the question does not show the prosecutor intended to cause a mistrial. See

-76 (prosecutorial conduct that could be viewed as harassment

or overreaching, even if sufficient to justify mistrial, does not bar retrial absent intent by

prosecutor to subvert the Double Jeopardy Clause’s protections).

        Next, Burciaga contends the timing of the prosecutor’s question indicates the

prosecutor intended to cause a mistrial in order to create a second opportunity to try the

case. Specifically, Burciaga points out that the prosecutor’s improper question came at

the end of trial, after the prosecutor had seen Burciaga’s evidence and observed his trial

strategy, and after the prosecutor had time to reflect and strategize before asking the

question. Burciaga also notes that after asking the question at issue, the prosecutor

advised the district court, “I feel like I’m having to fight and claw to get my case

presented in a way that is fair and so that it’s—so that the right thing is in front of the

jury.” Burciaga contends this statement indicates the prosecutor believed the

government’s case was going poorly.

       But as the district court found, the government’s case was neither weak nor “going

                                               6
poorly,” and the prosecutor possessed an “objective basis for believing the government’s

case was strong and the defense case was weak.” Specifically, the district court observed

from Burciaga’s first trial that “the Government’s case itself [was] not weak” and

“Defendant’s own testimony did little to rebut it.” It also noted that the motions in limine

filed before Burciaga’s second trial revealed the parties believed Burciaga’s “testimony

ultimately would have been favorable to the Government.” The record supports the

district court’s observations and its finding that the government had no reason to sabotage

the first trial.

        Burciaga also suggests the prosecutor’s intent to cause a mistrial can be inferred

based on the fact that the government bolstered its case with new evidence at Burciaga’s

second trial. But as the district court noted, “the Government—like any reasonable

attorney preparing for a trial in our adversary system—has consulted the evidence it has

available to it and endeavored to use this evidence to its advantage.” The government’s

effort to put on its strongest case does not undermine the district court’s finding that the

government had “no incentive to cause a mistrial” and its conclusion that the prosecutor

did not subjectively intend to cause the mistrial here.

        Finally, Burciaga argues the district court gave the government too much credit for

defending the prosecutor’s question and attempting to salvage the trial by assisting in

drafting a proposed limiting instruction. However, as the district court found, such efforts

can suggest the government did not intend to cause a mistrial. See 

; 

. Nevertheless, Burciaga urges this Court to

speculate that the prosecutor, in a Machiavellian scheme to manufacture a second chance

                                              7
to try the case, professed that his question was an innocent mistake and feigned interest in

avoiding a mistrial, all to avoid a finding that he provoked the mistrial. Significantly,

Burciaga provides us with no record citations to substantiate his conspiracy theory,

stating only “[w]here the court saw efforts to salvage the trial, [Burciaga] sees further

manipulation.”

       And therein lies the problem. The district court adopted one view of the facts—a

view supported by the record—while Burciaga urges us to adopt another view. The

bottom line is that when we view the evidence in the light most favorable to the district

court’s ruling, as we must, we find the district’s view permissible in light of the evidence.

Because we conclude Burciaga has failed to show that the district court clearly erred in

finding the prosecutor did not intend to cause a mistrial, we affirm the district court’s

denial of Burciaga’s motion to dismiss.

                                       CONCLUSION

       The district court’s judgment is affirmed.



                                           ENTERED FOR THE COURT

                                           Nancy L. Moritz,
                                           Circuit Judge




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