In United States v. Rios, 637 F.2d 728, 729 (10th Cir. 1980), cert. denied, 452 U.S. 918 (1981), the defense moved for mistrial when the prosecutor made improper remarks in closing argument.
The motion was denied and the defendant was convicted.
After the Tenth Circuit reversed the conviction because of prosecutorial misconduct, the defendant unsuccessfully moved to bar retrial on double jeopardy grounds, prompting a second appeal to the Tenth Circuit. That court concluded "that double jeopardy considerations applicable after a mistrial has been granted are indeed applicable in the same manner when prosecutorial misconduct requires reversal of a conviction for lack of a fair trial after a mistrial motion has been denied." Rios, 637 F.2d at 729 .