United States v. Ray Foster (6th Cir. December 2019)

The Federal Docket

January 15, 2020

Prosecutorial Misconduct – The Double Jeopardy Clause did not bar a defendant’s retrial since the prosecution did not “coax” the defendant into requesting a mistrial at the first trial, despite repeated and obvious violations of the defendant’s rights at that trial despite the district court’s admonitions.

Ray Foster was charged with drug offenses twice. His first trial ended in a mistrial after the prosecution repeatedly asked witnesses to relay out-of-court statements by unnamed informants regarding Foster’s involvement in drugs, despite repeated admonitions from the trial court to jeopardizing Foster’s constitutional right to confront witnesses against him. The Court noted that “the prosecution committed over a dozen similar violations on the first day of trial alone.”

When the district court advised the parties of its concerns regarding the repeated violations of Foster’s right to confrontation, it asked the parties to propose a curative jury instruction. Foster instead moved for a mistrial, which the prosecution objected to and promised to “assiduously avoid” further violations. The prosecutor conceded, however, that if a confrontation clause violation had already occurred, a jury instruction would not be sufficient to cure the harm. The court granted the mistrial.

After the initial mistrial, the Government charged Foster again. Foster moved to dismiss the indictment under the Double Jeopardy clause, arguing that the prosecution had acted deliberately to “coax” him into requesting a mistrial and subjecting himself to a second trial on the same charges. The district court denied his motion, but Foster eventually appealed the order pursuant to a conditional plea agreement with the Government.

On appeal, the Court affirmed the district court. Noting that a mistrial granted at the request of a defendant is “generally deemed a waiver” of a defendant’s double jeopardy rights, the Court concluded that this was not a case where a prosecutor retried a defendant after “goading” them into requesting a mistrial as seen in United States v. Dinitz, 424 U.S. 600, 611 (1976).

The Court noted that whether the prosecution intended to provoke a mistrial is a finding of fact by the district court and is entitled to deference unless clearly erroneous. Even if the behavior rose to the level of prosecutorial misconduct, “prosecutorial misconduct, standing alone, is insufficient to give rise to a double jeopardy violation. The touchstone, rather, is the prosecutor’s intent.”

The Court explained that, while the prosecution’s constitutional violations were obvious, there was insufficient evidence that the prosecution intended to cause a mistrial. The Court cited the strength of the Government’s case and the fact that the Government argued consistently that no confrontation clause violation occurred.

On Appeal from the Eastern District of Tennessee

Opinion by Readler, joined by Sutton and Nalbandian

Click here to read the opinion.


Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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