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United States v. Foster

United States Court of Appeals, Sixth Circuit

December 17, 2019

United States of America, Plaintiff-Appellee,
v.
Ray Foster, Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 1:15-cr-00091-3 Travis R. McDonough, District Judge.

          ON BRIEF: Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Terra L. Bay, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee.

          Before: SUTTON, NALBANDIAN, and READLER, Circuit Judges.

          OPINION

          CHAD A. READLER, Circuit Judge.

         At its core, the job of a prosecutor is "[to] do justice." Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate Justice of the Supreme Court of the United States, Before the S. Comm. on the Judiciary, 111th Cong. 359 (2009) (quoting famed prosecutor Hamilton Burger from the television show Perry Mason). That is no small task. In honoring the trust placed upon them as public officials, prosecutors pursue justice by prosecuting on the public's behalf those accused of violating our criminal laws. As they pursue those legal proceedings, prosecutors must exercise fairly their tremendous discretion and weighty judgment. And they must act with appropriate respect for prosecutorial norms, court rules, and constitutional limitations.

         Many of those principles seemingly were not honored during Ray Foster's drug-conspiracy trial. From the start, the prosecution asked witnesses to relay out-of-court statements made by unnamed informants, in violation of Foster's Confrontation Clause rights. Despite being instructed to end the practice, the prosecution's violations continued. When it eventually granted a mistrial, the district court scolded the prosecution for jeopardizing Foster's right to a fair trial.

         But Foster wanted more. He claimed that the prosecutors had not simply made a mistake, but instead had acted deliberately to coax Foster into requesting a mistrial. On that basis, Foster moved to dismiss the indictment. To his mind, a second trial would violate yet another of his constitutional rights, this time the right against duplicative prosecutions protected by the Double Jeopardy Clause. But Foster's claim did not match the facts. While regrettable, the prosecution's misconduct, the district court concluded, did not come in response to trial adversities or otherwise suggest the prosecution acted with an eye to securing a mistrial.

         We agree with the district court in all respects. The prosecution was undoubtedly careless. But there is no evidence of intentional misconduct part and parcel of a scheme to deprive Foster of his double jeopardy rights. Accordingly, we AFFIRM the judgment of the district court.

         I. BACKGROUND

         Defendant Ray Foster was suspected of conspiring with at least a dozen others to illegally distribute methamphetamine in southeastern Tennessee. Officers of the Tennessee Bureau of Investigation thus turned their investigative eyes toward Foster. In searching garbage Foster had left on the curb, the officers discovered materials indicating methamphetamine use and distribution. Next, they approached Foster in his home, asking to search the residence. With Foster's consent, agents discovered a wave of incriminating evidence inside, including methamphetamine, materials used for distributing methamphetamine, and $2, 000 in twenties. Making matters worse for Foster, during the search, he incriminated himself, admitting he had a role in the methamphetamine-trafficking conspiracy, but deflecting leadership responsibility to others.

         A grand jury issued a thirteen-count indictment against Foster and his co-conspirators. Foster was included in two of those counts:

• Count one, which charged Foster with conspiring to distribute and possess with intent to distribute at least 50 grams of methamphetamine and at least 500 grams of methamphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), & 846;
• Count thirteen, which charged Foster with possession with intent to distribute methamphetamine mixture, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C).

         At trial, Foster chose to represent himself, with counsel on standby. As its first witness, the prosecution called Agent Bryan Freeman of the Tennessee Bureau of Investigation. In response to questions during his direct examination, Freeman repeated informants' ...


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