                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 19a0297p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         >      No. 18-5673
        v.                                               │
                                                         │
 RAY FOSTER,                                             │
                                                         │
                                Defendant-Appellant.     │
                                                         ┘

                          Appeal from the United States District Court
                     for the Eastern District of Tennessee at Chattanooga.
                 No. 1:15-cr-00091-3—Travis R. McDonough, District Judge.

                           Decided and Filed: December 17, 2019

             Before: SUTTON, NALBANDIAN, and READLER, Circuit Judges.

                                     _________________

                                         COUNSEL

ON BRIEF: Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand
Rapids, Michigan, for Appellant. Terra L. Bay, UNITED STATES ATTORNEY’S OFFICE,
Chattanooga, Tennessee, for Appellee.
                                     _________________

                                          OPINION
                                     _________________

       CHAD A. READLER, Circuit Judge. At its core, the job of a prosecutor is “[to] do
justice.” Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate
Justice of the Supreme Court of the United States, Before the S. Comm. on the Judiciary, 111th
Cong. 359 (2009) (quoting famed prosecutor Hamilton Burger from the television show Perry
Mason). That is no small task. In honoring the trust placed upon them as public officials,
 No. 18-5673                            United States v. Foster                              Page 2


prosecutors pursue justice by prosecuting on the public’s behalf those accused of violating our
criminal laws. As they pursue those legal proceedings, prosecutors must exercise fairly their
tremendous discretion and weighty judgment. And they must act with appropriate respect for
prosecutorial norms, court rules, and constitutional limitations.

         Many of those principles seemingly were not honored during Ray Foster’s drug-
conspiracy trial. From the start, the prosecution asked witnesses to relay out-of-court statements
made by unnamed informants, in violation of Foster’s Confrontation Clause rights. Despite
being instructed to end the practice, the prosecution’s violations continued. When it eventually
granted a mistrial, the district court scolded the prosecution for jeopardizing Foster’s right to a
fair trial.

         But Foster wanted more. He claimed that the prosecutors had not simply made a mistake,
but instead had acted deliberately to coax Foster into requesting a mistrial. On that basis, Foster
moved to dismiss the indictment. To his mind, a second trial would violate yet another of his
constitutional rights, this time the right against duplicative prosecutions protected by the Double
Jeopardy Clause.      But Foster’s claim did not match the facts.           While regrettable, the
prosecution’s misconduct, the district court concluded, did not come in response to trial
adversities or otherwise suggest the prosecution acted with an eye to securing a mistrial.

         We agree with the district court in all respects.        The prosecution was undoubtedly
careless. But there is no evidence of intentional misconduct part and parcel of a scheme to
deprive Foster of his double jeopardy rights. Accordingly, we AFFIRM the judgment of the
district court.

                                       I. BACKGROUND

         Defendant Ray Foster was suspected of conspiring with at least a dozen others to illegally
distribute methamphetamine in southeastern Tennessee. Officers of the Tennessee Bureau of
Investigation thus turned their investigative eyes toward Foster. In searching garbage Foster had
left on the curb, the officers discovered materials indicating methamphetamine use and
distribution. Next, they approached Foster in his home, asking to search the residence. With
Foster’s consent, agents discovered a wave of incriminating evidence inside, including
 No. 18-5673                             United States v. Foster                             Page 3


methamphetamine, materials used for distributing methamphetamine, and $2,000 in twenties.
Making matters worse for Foster, during the search, he incriminated himself, admitting he had a
role in the methamphetamine-trafficking conspiracy, but deflecting leadership responsibility to
others.

          A grand jury issued a thirteen-count indictment against Foster and his co-conspirators.
Foster was included in two of those counts:

   •      Count one, which charged Foster with conspiring to distribute and possess with
          intent to distribute at least 50 grams of methamphetamine and at least 500 grams
          of methamphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1),
          841(b)(1)(A), & 846;
   •      Count thirteen, which charged Foster with possession with intent to distribute
          methamphetamine mixture, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C).

          At trial, Foster chose to represent himself, with counsel on standby. As its first witness,
the prosecution called Agent Bryan Freeman of the Tennessee Bureau of Investigation. In
response to questions during his direct examination, Freeman repeated informants’ out-of-court
statements on several occasions, largely without objection from Foster.

          After two particularly egregious exchanges, the district court intervened. In the first,
Freeman testified that he heard Foster’s name come up repeatedly in interviews with individuals
claiming to be Foster’s associates, which Freeman believed tied Foster to drug dealers. In the
second, Freeman relayed a story about an informant who drove a drug dealer to a church in
Foster’s neighborhood for an apparent drug transaction with Foster. Freeman subsequently
admitted during a sidebar that he had no personal knowledge of the events he had described.

          In all, the prosecution committed over a dozen similar violations on the first day of trial
alone. Time and again, the prosecution would solicit from Freeman informants’ out-of-court
statements about which Freeman admittedly had no personal knowledge. When confronted by
the district court, the prosecution repeatedly argued that the statements did not violate the
Confrontation Clause, citing our decision in United States v. Cromer, 389 F.3d 662 (6th Cir.
2004). The district court was unpersuaded.
 No. 18-5673                            United States v. Foster                            Page 4


       The next day, the district court advised the parties of its concern that Freeman’s
testimony contained numerous Sixth Amendment violations and asked the parties to propose a
curative jury instruction. Foster in turn moved for a mistrial, arguing that no jury instruction
would be sufficient to cure the error. The lead prosecutor requested that the court move forward
with the trial, noting his intention to “assiduously avoid having any of that kind of testimony
additionally come out unless [he] felt like it was absolutely necessary, at which point [he] would
highlight it for the Court before [he] did it.” But if the court believed a Confrontation Clause
violation had occurred, the prosecution conceded that a jury instruction likely would not cure the
harm. With that concession, the district court granted Foster’s request for a mistrial.

       Foster then moved to dismiss the indictment. In his motion, Foster asserted that another
trial would violate the Fifth Amendment’s Double Jeopardy Clause, as the prosecution had acted
deliberately to cause a mistrial. In response, the prosecution, in addition to defending the way in
which it elicited testimony, also noted its insistence at all stages that the trial continue as
evidence that it had not intended to provoke a mistrial. Agreeing with the government, the
district court denied Foster’s motion and set a new trial date.

       On the first day of the new trial, Foster pled guilty to count one. In exchange, the
prosecution agreed to dismiss count thirteen, to decline to seek certain enhancements against
Foster, and to allow Foster to appeal the district court’s double jeopardy ruling. The Presentence
Report subsequently set Foster’s offense level at 35 and criminal history category at VI—leading
to a Sentencing Guidelines range of 292 to 365 months’ imprisonment. But as part of Foster’s
plea agreement, the government agreed that 180 months of imprisonment and five years of
supervised release was an appropriate sentence. After the district court imposed the agreed-upon
sentence, Foster appealed.

                                          II. ANALYSIS

       The Fifth Amendment’s Double Jeopardy Clause commands that no criminal defendant
shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST.
amend. V. The “double jeopardy” bar forbids double punishment for the same offense. And as
relevant here, it also protects a criminal defendant from being retried by the same sovereign for
 No. 18-5673                           United States v. Foster                             Page 5


the same offense, where the defendant prevailed in an earlier proceeding. United States v.
Koubriti, 509 F.3d 746, 748–49 (6th Cir. 2007) (citing United States v. Cameron, 953 F.2d 240,
243 (6th Cir. 1992)); see also Gamble v. United States, 139 S. Ct. 1960, 1979 (2019).

       Where a prior proceeding ends in a mistral rather than an acquittal, the Double Jeopardy
Clause does not always bar retrying the defendant. See Oregon v. Kennedy, 456 U.S. 667, 672–
73 (1982). Whether a retrial would amount to “double jeopardy” oftentimes turns on who
requested the underlying mistrial. See id. Start with the government. Its request for a mistrial is
viewed with constitutional suspicion, and for good reason. After all, the point of the Double
Jeopardy Clause is to bar an unsuccessful prosecutor from a second bite at the prosecutorial
apple. See Saulsberry v. Lee, 937 F.3d 644, 648–49 (6th Cir. 2019). Retrials in that setting are
thus allowed only in cases of “manifest necessity”—for example, when the jury is unable to
reach a verdict at the initial trial. See id. (citing Arizona v. Washington, 434 U.S. 497, 503–05
(1978)).

       And now the defendant. Her decision to move for a mistrial is generally deemed a
waiver of her double jeopardy rights, meaning retrials are allowed. See Kennedy, 456 U.S. at
672–73. But what if the defendant is provoked into requesting a mistrial by a conspiring
prosecutor who fears an acquittal and prefers a new trial? That possibility for manipulation has
not been lost on the courts. We have long discouraged the practice by finding a double jeopardy
violation where a prosecutor retries a defendant after “goad[ing] the [defendant] into requesting a
mistrial.” United States v. Dinitz, 424 U.S. 600, 611 (1976). And that is essentially what Foster
contends happened here.

       Whether the prosecution intended to provoke a mistrial is a factual inquiry. As with other
factual determinations, we customarily defer to the district court’s assessment regarding intent,
unless that determination is clearly erroneous. Koubriti, 509 F.3d at 749. To our eye, the district
court fairly weighed the competing interests at play. On the one hand, the district court did not
mince words in describing the prosecution’s litany of “obvious constitutional violations.”
Indeed, the district court questioned whether the lead prosecutor was “serious” about preserving
constitutional rights and reminded him that it was not the court’s role to “wait for [the
prosecution] to violate somebody’s constitutional rights and then try to fix it for [them].” On the
 No. 18-5673                            United States v. Foster                             Page 6


other hand, the district court concluded that the prosecution, despite its shortcomings,
nonetheless did not intend to cause a mistrial. After all, the district court noted, there was simply
no good reason to do so at that point in the proceeding, as “[n]othing challenging or even mildly
unfavorable to the Government’s case occurred prior to the conduct in question.”

        We see no reason to disagree with that assessment. The prosecution’s case was strong.
And nothing in the trial to that point had caused a setback that might make a mistrial desirable.
We thus see no indication that the prosecution encouraged and abetted the “declaration of a
mistrial so as to afford the prosecution a more favorable opportunity to convict the defendant.”
Kennedy, 456 U.S. at 674 (citing Dinitz, 424 U.S. at 611) (internal quotation marks omitted).
This was not, in other words, an attempt by the government to seek a second bite at the apple; it
was just beginning its first.

        But, says Foster, the prosecution’s misconduct, viewed as a whole, and epitomized by its
repeated requests to elicit inadmissible testimony, plainly reflects malintent sufficient to carry
the day for double jeopardy purposes. Our precedents say otherwise. Even accepting Foster’s
allegations, prosecutorial misconduct, standing alone, is insufficient to give rise to a double
jeopardy violation. The touchstone, rather, is the prosecutor’s intent. And absent evidence of
prosecutorial intent to provoke a mistrial, there is no double jeopardy violation. Phillips v. Ct.
Com. Pl., Hamilton Cty., 668 F.3d 804, 811 (6th Cir. 2012) (quoting Kennedy, 456 U.S. at 675–
76 (“harassment or overreaching” by the prosecutor, “even if sufficient to justify a mistrial on
defendant’s motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert
the protections afforded by the Double Jeopardy Clause”) (ellipsis in original)). Here, Foster has
failed to demonstrate that kind of subversive intent. With respect to the instances of misconduct
Foster cites, the prosecution forcefully argued against finding that a Confrontation Clause
violation occurred. While those arguments were erroneous, they nonetheless undermine the idea
that the prosecution was in truth baiting a mistrial.

        We commend the district court on its handling of this challenging proceeding. By its
wanting performance, the prosecution fell well short of fulfilling its oath to respect Foster’s
constitutional rights. Yet Foster, in serving as his own counsel, was not well equipped to object
to the prosecution’s missteps. So the district court stepped in and declared a mistrial. At the
 No. 18-5673                           United States v. Foster                              Page 7


same time, because the prosecution did not intend to cause the mistrial, the district court rightly
concluded that initiating a second trial did not run afoul of the Double Jeopardy Clause.

                                      III. CONCLUSION

   For these reasons, we AFFIRM the judgment of the district court.
