MEMORANDUM AND ORDER
James K. Bredar United States District Judge
Pending before the Court is Defendant’s Motion to Prohibit Retrial and Dismiss the Indictment (ECF No. 67), pursuant to the Double Jeopardy Clause. U.S. Const. amend. V. The Court has considered the Defendant’s submissions (ECF Nos. 67, 69), as well as the Government’s response (ECF No. 68), and concludes no hearing is necessary. For the reasons stated below, the motion will be DENIED.
Mr. Younger was charged in a two-count indictment with Interference with Commerce by Robber, 18 U.S.C. § 1951, and Use and Carry of a Firearm During and in Relation to a Crime of Violence, 18 U.S.C. § 924(c), in connection with the September 27, 2011 robbery of a Urtrecht Art Supply store in Baltimore, Maryland. (ECF No. 3). In the course of this robbery, $335 were stolen from the store. (ECF Nos. 67 ¶6; 68 at 1). As part of discovery, the Government provided Mr. Younger with a Report of Investigation, prepared by Officer Eubanks, which indicated that at the time of his arrest, Mr. Younger was carrying $185 in cash. (ECF No. 67-2). Based on this information, in opening arguments at Mr. Younger’s trial, defense counsel stated that the evidence would show that Mr. Younger was carrying a substantially different amount of money at the time of his arrest than the robber had stolen only hours before.
During Mr. Younger’s trial, as part of its case in chief, the Government called Baltimore County Detective Kelly Marsteller-Carroll, who had been present at Mr. Younger’s arrest, to testify. Government counsel asked Detective Marsteller-Carroll how much cash had been recovered fom Mr. Younger’s person at the time of his arrest. After refreshing her memory, Detective Marsteller-Caroll testified that Mr. Younger had been carrying $366.
Defense counsel requested a bench conference and, upon examintation, the Court discovered that Detective Marsteller-Carroll had used a Property Inventory Form to refresh her memory, which was different from Officer Eubank’s Report of Investigation that was provided to the defense. (ECF Nos. 67-2; 67-3). Government counsel represented that Detective Marsteller-Carroll’s testimony was a surprise and that the Government’s line of questioning was intended to elicit testimony that Mr. Younger possessed $185 at the time of his arrest. (See ECF No. 68 at 2). Government counsel further represented that the Government had not provided defense counsel with the Property Inventory Form because the Government itself had not received it from the Baltimore County Police Department.
Defense counsel argued that the Government’s failure to produce the Property Inventory Form constituted a violation of Fed. R. Crim. P. 16 and moved for a mistrial. The Court granted Defendant’s motion over the Government’s objection.
As a general rule, “the government is not barred from retrying cases when the first trial ends on the defendant’s motion for mistrial.” U.S. v. Johnson, 55 F.3d 976, 978 (4th Cir. 1995) (quoting U.S. v. Borromeo, 954 F.2d 245, 247 (4th Cir. 1992)). However, in Oregon v. Kennedy, the Supreme Court recognized a “narrow exception” to this rule: “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on its own motion.” 456 U.S. 667, 673, 676 (1982). The Supreme Court emphasized that “[p]rosecutorial conduct, . . . even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-76. In this context, as the Fourth Circuit has explained, the defense “bears the burden of proving that the prosecutor intentionally provoked the defense into moving for mistrial.” Borromeo, 954 F.2d at 247.
In U.S. v. Strickland, the Fourth Circuit found that “[t]he transcript reveals that the prosecutor herself was clearly surprised by her witness’s reference to reports . . . . This evidence alone supports the district court’s conclusion that the government did not act deliberately to goad the defendant by intentionally concealing discoverable materials.” 245 F.3d 368, 384 (4th Cir. 2001).
Here, the Court finds that the government was as surprised as the defendant by Detective Marsteller-Carroll’s testimony. Based on the events that unfolded in the courtroom, the Court finds that the Government did not intentionally fail to disclose the Property Inventory Form and that nothing close to “goading” occurred.
Therefore, this Court finds that the Fifth Amendment does not bar the Government from retrying this case. Accordingly, the motion is DENIED.
It is further ORDERED that this matter is set in for a telephone scheduling conference on October 8, 2013 at 9:30 a.m. Counsel for the Government is ...