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.
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
Before: SUTTON, NALBANDIAN, and READLER, Circuit Judges.
A. READLER, Circuit Judge.
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
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.
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.
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
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
jury issued a thirteen-count indictment against Foster and
his co-conspirators. Foster was included in two of those
• 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).
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' ...