Appeal from the United States District Court for the District of Hawaii. DC No. CR-91-00878-01-HM. Spencer M. Williams, District Judge, Presiding
Before: Choy, Sneed, and Skopil, Circuit Judges.
Appellant George Ancheta appeals the district court's denial of his motion to dismiss his indictment on the ground that a third trial would violate his right under the Double Jeopardy Clause of the U.S. Constitution. The issue is whether the trial Judge presiding in his second trial intentionally goaded the appellant into asking for a mistrial. We believe that he did not, and affirm.
FACTS AND PROCEEDINGS BELOW
Appellant George Ancheta was arrested during an effort to market about four ounces of crystal methamphetamine ("ice"). On the day of his arrest, Ancheta offered a D.E.A. informant a sample of the drugs; later, he drove his co-defendant to the park and was present when his co-defendant handed the cellophane envelope containing the drugs to the undercover police officer who was posing as a buyer.
Ancheta was charged with conspiring to distribute, possessing with intent to distribute, and aiding and abetting the distribution of over one hundred grams of crystal methamphetamine. Ancheta's first trial in the district court, before Judge Harold M. Fong, ended in a hung jury and a mistrial.
Ancheta's second jury trial began with the same attorneys and trial Judge. When the defense attorney, Mr. Ray Findlay, was cross-examining a government witness, Judge Fong objected to a certain line of questioning as irrelevant. Thus began an exchange between the Judge and Findlay that eventually led to the court granting both the defendant's request to dismiss his lawyer and, consequently, the defendant's motion for a mistrial. After this second mistrial was declared, the Federal Public Defender's office was appointed to represent Ancheta, who then filed a motion before a new district Judge to dismiss all charges on the ground that a third trial would violate the Double Jeopardy Clause of the U.S. Constitution. The motion was denied after oral argument. Ancheta has filed a timely interlocutory appeal of the denial of his motion to dismiss the indictment.
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction under 18 U.S.C. § 3231. This panel has jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291 and § 1294(1), and under Abney v. United States, 431 U.S. 651, 659 (1977) (holding that denial of motion to dismiss indictment on double jeopardy ground is immediately appealable). A district court's denial of a motion to dismiss on double jeopardy grounds is generally reviewed de novo. United States v. Lun, 944 F.2d 642, 644 (9th Cir. 1991). However, when the denial is based upon factual findings about governmental conduct, these fact findings are reviewed under the deferential, "clearly erroneous" standard. Id.