## Facts

- Aurora Lopez-Avila attempted to enter the United States from Mexico at the Nogales Port of Entry in Arizona.
- Customs officers, acting on an informant’s tip, searched her vehicle and found 9.7 kilograms of cocaine behind the back seat cushion.
- She was charged with possession with intent to distribute cocaine.
- Lopez-Avila initially pleaded guilty and, during the Rule 11 plea colloquy, answered “No” when asked whether anyone had threatened or forced her to plead guilty.
- She later withdrew her guilty plea and went to trial, testifying that she transported the drugs under threat.
- To impeach her, the prosecutor used the plea-hearing transcript but intentionally truncated the plea-colloquy question to omit the clause tying threats to the decision to plead guilty, then presented the shortened version as if it were the full question.
- The truncated question made it appear she had previously denied being threatened “in this case,” undermining her coercion defense.
- After the discrepancy was discovered, the defense moved for a mistrial; the prosecutor admitted intentionally misquoting the transcript while asserting it was “fair.”
- The district court granted a mistrial based on prosecutorial misconduct.
- After mistrial, Lopez-Avila moved to dismiss the indictment with prejudice on Double Jeopardy grounds; the district court denied the motion.

## Issues

1. Whether the Double Jeopardy Clause barred retrial after a defense-requested mistrial granted for prosecutorial misconduct.
2. Whether the prosecutor’s intentional misquotation of prior testimony showed the specific intent to provoke a mistrial required to bar retrial under Oregon v. Kennedy.
3. Whether a broader rule barring retrial for egregious misconduct applied absent proof of intent to provoke a mistrial.

## Decision

- The Ninth Circuit affirmed the denial of the motion to dismiss the indictment.
- The court held the prosecutor committed serious misconduct by intentionally misrepresenting the plea-colloquy exchange.
- The court found the record did not show the prosecutor acted with the specific intent to “goad” the defendant into moving for a mistrial.
- Because the Kennedy intent requirement was not met, the Double Jeopardy Clause did not bar retrial.

## Legal Principles

- When a mistrial is granted at the defendant’s request, retrial is barred by double jeopardy only if the prosecutor’s conduct was intended to provoke the defendant into moving for a mistrial. (Oregon v. Kennedy)
- Even deliberate and serious prosecutorial misconduct warranting a mistrial does not, by itself, bar retrial without proof of the prosecutor’s specific mistrial-provoking intent.
- Misconduct aimed at gaining an advantage at trial (even improperly) is distinct from misconduct undertaken to terminate the trial; only the latter can trigger the double-jeopardy bar under Kennedy.

## Conclusion

The court allowed retrial because, although the prosecutor intentionally misquoted the plea-hearing transcript and caused a mistrial, the evidence did not establish the specific intent to provoke a mistrial required to bar a second prosecution under the Double Jeopardy Clause.


United States v. Lopez-Avila, 678 F.3d 955 (9th Cir. 2012)