United States v. Mondragon, No. 12-30360 (12-23-13) (Graber with Tashima and Murguia).

On a double jeopardy issue, the 9th affirmed the denial of dismissal of a superseding indictment. The defendant faced drug and firearm charges. He requested a settlement conference with a specific judge. While waiting for the judge to become available, the trial court empaneled a jury and was ready to begin. A plea was reached; the guilty plea entered, and then, before sentencing, the defendant sought to withdraw. The court denied the motion and sentenced him. The defendant then appealed, despite a plea waiver. The gov't said, "okay, you want to withdraw, that's fine with us." The sentence was vacated and the matter remanded. There was a superseding indictment, and then the defendant said, "Wait! This is double jeopardy." "Not so," replied the court, and "not so" stated the 9th Cir. The defendant asked for (1) the settlement conference; and (2) it was with a judge not assigned to the case." The defendant moreover also moved for the mistrial after the jury was empaneled. The 9th sidestepped Kyle, and judge involvement, because even if there was improper judicial involvement (again, the trial judge was not involved), the defendant was not forced into asking for mistrial. This was not a case of the court or gov't "goading" the defendant into moving for a mistrial. The defendant was not prevented from having the jury decide the case because the defendant himself asked for a settlement conference, reached a plea, and moved for the mistrial. He has now been returned to where he started.