United States v. Gallien , 168 F. App'x 12 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 9, 2006
Charles R. Fulbruge III
Clerk
No. 04-31072
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TELLY GALLIEN,
Defendant-Appellant
(Consolidated with)
No. 04-31075
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
TRAVIS GALLIEN,
Defendant-Appellant
(Consolidated with)
No. 04-31077
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
SIDNEY GALLIEN,
Defendant-Appellant
(Consolidated with)
No. 04-31083
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
GEORGE CELESTINE,
Defendant-Appellant
--------------------
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 6:01-CR-60127-5
--------------------
Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, George Celestine, Telly Gallien,
Travis Gallien, and Sidney Gallien appeal the denial of their
motion to dismiss the case against them, which was based on double
jeopardy grounds, following a mistrial. The defendants argue that
the prosecution intentionally provoked them into moving for a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
2
mistrial and that the district court erred by misapplying the
principles given in Oregon v. Kennedy, 456 U.S. 667 (1982).
The appellants have not shown that the district court’s denial
of their motion to dismiss was erroneous. The district court’s
finding that the prosecution did not intentionally provoke the
defendants into moving for a mistrial was not clearly erroneous.
See Kennedy, 456 U.S. at 675-76; United States v. Gonzalez, 76 F.3d
1339, 1342 (5th Cir. 1996). To the contrary, the record strongly
supports the district court’s findings concerning the inadvertence
of the error that led to the mistrial and the parties’ desires, or
lack thereof, for the mistrial. Our review of the record and the
district court’s detailed reasons for judgment also refutes the
appellants’ contention that the denial of their motion was grounded
in a misapplication of Kennedy.
The appellants have shown no error in the judgment of the
district court. Accordingly, that judgment is AFFIRMED.
3