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9th Circuit Denies Double-Jeopardy Based Dismissal of Arizona Drug Case

In a case featuring especially egregious prosecutorial misconduct by Assistant U.S. Attorney Jerry Albert in prosecution of Defendant-Appellant Aurora Lopez-Avila, the 9th Circuit has refused defense efforts to dismiss the indictment on double-jeopardy grounds. The defense had consented to a mistrial in the original proceeding where Albert was found to intentionally mislead the court and the empaneled jury over whether or not Lopez-Avila had contradicted her previous testimony to a federal magistrate who had presided at a previous hearing.

The misrepresentation stemmed from an exchange between the defendant and the magistrate, who in inquiring as to the voluntariness of her guilty plea, asked, "Has anyone threatened you or forced you to plead guilty?" The defendant later noted that she had been forced to commit the drug offense, so that "the whole issue in (the) case (was) whether (Lopez-Avila) was under duress, or threatened, or forced to commit this crime," according to the district court. The prosecution at trial then attempted to make it appear that the answer to whether or not she had been forced to plead guilty into an admission that she had not been coerced into committing the crime.

The defense immediately moved for a mistrial, which was granted. Following the mistrial order, the defense moved to dismiss the entire case on double-jeopardy grounds. The district court, in denying the motion, cited Oregon v. Kennedy, 456 U.S. 667 (1982), "that the Double Jeopardy Clause bars retrial after a defendant requests a mistrial 'only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial.'" An interlocutory appeal followed. Defendant argued on appeal that the aforementioned "goading" exception to the Oregon v. Kennedy case, as well as Arizona Supreme Court interpretation of its state protection against double jeopardy.

The Appellate court, however, found that the "goading" exception did not apply, noting Oregon v. Kennedy held that, "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."

The court reserved special criticism for the conduct of Albert, and along with affirming the district court denial of defendant's dismissal motion, remanded the cause for determination as to whether the holding in U.S. v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) should apply. That case suggested that the district court might determine "whether to retry the defendant or dismiss the indictment with prejudice as a sanction for the government's misbehavior," or for "reckless disregard for the prosecution's constitutional obligations." United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008). See: United States v. Lopez-Avila, 678 F.3d 955 (9th Cir. 2012).

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Related legal case

United States v. Lopez-Avila