Even if there were, the Defendant did not move for mistrial, which the Seventh Circuit has indicated is a requirement for the invocation of Kennedy. United States v. Doyle, 121 F.3d 1078, 1086 (7th Cir. 1997) ("[A] defendant who did not move for a mistrial on the basis of intentional prosecutorial misconduct cannot invoke the double jeopardy clause to bar the state from retrying him after his conviction is reversed on that ground." (quoting Beringer v. Sheahan, 934 F.2d 110, 114 (7th Cir. 1991))).

We review de novo a district court's denial of a motion to dismiss an indictment based on double jeopardy. See United States v. Doyle, 121 F.3d 1078, 1083 (7th Cir.1997). The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. The Clause “applies both to successive punishments and to successive prosecutions for the same criminal offense.”

. . . [Ordinarily,] if a defendant requests a mistrial, he gives up his right to a verdict by the jury then empaneled, and double jeopardy does not bar his retrial.United States v. Doyle, 121 F.3d 1078, 1083-84 (7th Cir. 1997) (citations and internal quotation marks omitted). The Supreme Court has created a limited exception to the "motion for mistrial" rule.

"One of the main and most-frequently cited rationales behind the protections in the Double Jeopardy Clause is that a defendant has the right to have his trial completed by the first jury empaneled to try him." United States v. Doyle, 121 F.3d 1078, 1083-84 (7th Cir. 1997). The Double Jeopardy Clause generally does not bar retrial, however, when a mistrial has been granted at the request of the defendant.

That does not mean, however, that Hills will necessarily walk free. Because Hills's convictions are being vacated due to the government's improper references to the invocation of the Fifth Amendment right against self-incrimination, there is no double jeopardy bar to her retrial. United States v. Doyle, 121 F.3d 1078, 1083-86 (7th Cir. 1997). In Doyle, we squarely addressed whether the prosecution's reference to the Fifth Amendment in closing arguments amounts to misconduct that would bar retrial.

Beringer v. Sheahan, 934 F.2d 110, 114 (7th Cir. 1991). See also, United States v. Doyle, 121 F.3d 1078 (7th Cir. 1997). Where the prosecutor's actions are engaged in with the intent to persuade the factfinder to convict, instead of acquit, there is no double jeopardy violation under the Fifth Amendment.

For example, if a conviction is reversed because the evidence is legally insufficient to convict, retrial is barred because, for double jeopardy purposes, this is equivalent to a judgment of acquittal. See United States v. Doyle, 121 F.3d 1078, 1083 (7th Cir. 1997), citing Lockhart v. Nelson, 488 U.S. at 39, 109 S.Ct. at 290. It is clear applicant's retrial is not barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution.

His conviction was affirmed on appeal. United States v. Doyle, 121 F.3d 1078 (7th Cir. 1997).

The Seventh Circuit likewise held that "a defendant who did not move for a mistrial on the basis of intentional prosecutorial misconduct cannot invoke the double jeopardy clause to bar the state from retrying him after his conviction is reversed on that ground." Beringer v. Sheahan , 934 F.2d 110, 114 (7th Cir. 1991) ; cf. United States v. Doyle , 121 F.3d 1078, 1085 (7th Cir. 1997) (observing that Seventh Circuit case law "impliedly suggests" the court does not subscribe to an expansion of the Kennedy exception beyond mistrials). No circuit court has held that the Kennedy exception applies outside of a mistrial, though some have discussed the idea in dicta.

A defendant ordinarily need only "set out a prima facie case that the second indictment charges him with the same offense for which he has already been convicted," at which point "the burden switches to the government to demonstrate, by a preponderance of the evidence, that the two indictments charged separate offenses." United States v. Doyle , 121 F.3d 1078, 1089 (7th Cir. 1997) ; see also United States v. Jones , 733 F.3d 574, 580 (5th Cir. 2013) ; United States v. Jurado–Rodriguez , 907 F.Supp. 568, 579–80 (E.D.N.Y. 1995) (Weinstein, J.) (remarking in the context of an extradition challenge that a treaty-based prior-prosecution bar "relates so closely to our double jeopardy concept that double jeopardy burdens of proof should apply"). The district court itself acknowledged uncertainty about whether U.S. Count IV and Belgian Charge Q actually allege distinct offenses, noting that "both underlying statutes criminalize providing support to banned organizations."