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NOT FOR PUBLICATION
`
`FILED
`
`SEP 21 2022
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` FOR THE NINTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`
`No. 22-10000
`
`Plaintiff-Appellee,
`
` v.
`
`MICHAEL LACEY; JAMES LARKIN;
`SCOTT SPEAR; JOHN BRUNST;
`ANDREW PADILLA; JOYE VAUGHT,
`
`Defendants-Appellants.
`
`D.C. Nos.
`2:18-cr-00422-DJH-1
`2:18-cr-00422-DJH-2
`2:18-cr-00422-SMB-3
`2:18-cr-00422-SMB-4
`2:18-cr-00422-SMB-6
`2:18-cr-00422-SMB-7
`2:18-cr-00422-SMB
`
`MEMORANDUM*
`
`Appeal from the United States District Court
`for the District of Arizona
`Diane J. Humetewa, District Judge, Presiding
`
`Argued and Submitted September 2, 2022
`San Francisco, California
`
`Before: W. FLETCHER, BYBEE, and VANDYKE, Circuit Judges.
`
`The parties are familiar with the facts and proceedings, which will not be
`
`recited here except as necessary to explain our decision.
`
`This disposition is not appropriate for publication and is not precedent
` *
`except as provided by Ninth Circuit Rule 36-3.
`
`

`

`This is an interlocutory appeal of the district court’s denial of Defendants’
`
`motion to dismiss under the Double Jeopardy Clause. Defendants appeal the
`
`denial of the motion to dismiss and the motion judge’s denial of an evidentiary
`
`hearing. We have jurisdiction under 28 U.S.C. § 1291. See Abney v. United
`
`States, 431 U.S. 651, 662 (1977) (for the purposes of appellate review, denial of a
`
`motion to dismiss on double jeopardy grounds constitutes a final decision). We
`
`affirm.
`
`We review the denial of a motion to dismiss on double jeopardy
`
`grounds de novo. United States v. Zone, 403 F.3d 1101, 1104 (9th Cir. 2005).
`
`However, “factual findings, including those on which [the] denial may be based”
`
`are reviewed for clear error. United States v. Lopez-Avila, 678 F.3d 955, 961 (9th
`
`Cir. 2012) (quoting United States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003)).
`
`We afford such deference to the district court’s findings of fact even when they are
`
`based on deductions and inferences from a written record. See Anderson v. City of
`
`Bessemer City, 470 U.S. 564, 574 (1985). We review the denial of a motion for an
`
`evidentiary hearing for abuse of discretion. United States v. Hagege, 437 F.3d
`
`943, 951 (9th Cir. 2006).
`
`A defendant who moves for mistrial may only “raise the bar of double
`
`jeopardy to a second trial” if the mistrial was instigated by prosecutorial conduct
`
`2
`
`

`

`that was “intended to ‘goad’ the defendant into moving for a mistrial.” Oregon v.
`
`Kennedy, 456 U.S. 667, 676 (1982). “The only relevant intent is intent to
`
`terminate the trial, not intent to prevail at this trial by impermissible means.”
`
`United States v. Lopez-Uvula, 678 F.3d 955, 962 (9th Cir. 2012) (quoting United
`
`States v. Perlaza, 439 F.3d 1149, 1173 (9th Cir. 2006)).
`
`Defendants argue that the government sought a mistrial in order to regroup
`
`and reorganize its case in light of (1) Defendants’ compelling arguments regarding
`
`specific intent and the First Amendment, (2) the trial judge’s pretrial ruling that
`
`escort services are legal, and (3) the government’s poor showing at trial up to that
`
`point. We address each reason in turn.
`
`1.
`
`Defendants’ arguments regarding specific intent and the First
`
`Amendment were of no surprise to the government; Defendants briefed these
`
`issues extensively throughout the motion-to-dismiss stage. In response to these
`
`arguments, the trial judge had held that the indictment alleged facts that, “taken as
`
`true, establish [D]efendants had the specific intent to promote prostitution in
`
`violation of the Travel Act.” United States v. Lacey, 423 F. Supp. 3d 748, 764 (D.
`
`Ariz. 2019). Defendants have failed to show that their arguments in support of
`
`jury instructions on these issues were so convincing as to require the government
`
`to rethink its case.
`
`3
`
`

`

`2.
`
`The trial judge’s pretrial ruling that escort services are legal would not
`
`reasonably deter the government from trying its case. The indictment recognizes
`
`that escort services are lawful, but goes on to allege that the vast majority of
`
`advertisements for escort services on Backpage were thinly-veiled prostitution ads.
`
`3.
`
`As to Defendants’ argument that the government sought mistrial
`
`because the trial had been going poorly, the government’s case-in-chief was still in
`
`its infancy. Of seventy-six government witnesses, only four had testified. At
`
`minimum, the government still had a clear path to prevailing at trial.
`
`Accordingly, the record supports the motion judge’s conclusion that the
`
`government had no reason to sabotage its own trial.
`
`We also conclude that the government’s misconduct was not so egregious as
`
`to compel a finding of an intent to goad. Though the record shows that the
`
`government did elicit prejudicial evidence in violation of pretrial rulings, the
`
`record also shows that the government generally had good-faith reasons to believe
`
`its questions were within the contours of the trial judge’s rulings. On several
`
`occasions, the government asked questions within the parameters set by the trial
`
`judge, and a witness provided prejudicial testimony that went beyond the scope of
`
`the question. In the few instances where the government asked a question that
`
`clearly violated a pretrial ruling, the government had a cogent reason for doing so.
`
`4
`
`

`

`Lastly, we note that the government vigorously opposed Defendants’
`
`motions for mistrial. Though the government’s opposition is “not conclusive,” it
`
`does “support[] the district court’s finding of a lack of intent.” United States v.
`
`Fowlkes, 804 F.3d 954, 972 (9th Cir. 2015).
`
`For the foregoing reasons, we find that the motion judge did not clearly err
`
`by finding the government did not intend to goad Defendants into moving for a
`
`mistrial. We therefore affirm the motion judge’s denial of the motion to dismiss.
`
`Additionally, we find that the motion judge did not abuse her discretion by
`
`declining to hold an evidentiary hearing on Defendants’ motion to dismiss.
`
`Defendants claim that the motion judge should have held an evidentiary hearing to
`
`force the government to explain under oath its “repeated and brazen rule breaking
`
`at trial.” However, the record supports the motion judge’s finding that the
`
`government did not act with an intent to goad a mistrial. The motion judge did not
`
`abuse her discretion by refusing to make counsel for the government explain as
`
`much in an evidentiary hearing.
`
`AFFIRMED.
`
`5
`
`

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