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Name: United States v. Mondragon
Case #: 12-30360
Court: US Court of Appeals
District 9 Cir
Opinion Date: 12/23/2013

Double jeopardy does not bar retrial after a jury is sworn where the defendant consents to a mistrial after entering a plea. Defendant was charged with federal gun and drug offenses. After the jury was empaneled, defendant entered a plea and consented to the trial court declaring a mistrial and discharging the jury. After defendant successfully moved to withdraw his plea, his motion to dismiss his case based on double jeopardy was denied and he appealed. Held: Affirmed. Jeopardy attached when the jury was sworn. Where a trial is terminated over the defendant’s objection, the test for application of the double jeopardy bar to a second trial is “manifest necessity.” However, where mistrial is granted at defendant’s request or consent, double jeopardy does not bar retrial except when the mistrial is caused by the misconduct of the prosecutor or judge and that misconduct is motivated by the intent to avoid application of double jeopardy, i.e., “whether the impropriety was an attempt to prevent the empaneled jury from reaching its verdict.” That did not occur here. Double jeopardy does not bar retrial.