United States v. Fernando Morales, 465 F. App'x 734

Interlocutory appeals arise from the 2009 indictment of 24 MS-13 members on racketeering and drug conspiracy charges, including a 16-count indictment with 158 overt acts.
Defendants challenge district court denial of motions to dismiss portions of the indictment as barred by double jeopardy and to compel specific performance of non-prosecution provisions from prior guilty pleas.
The government cross-appeals the district court’s sua sponte decision to strike certain overt-act allegations from the indictment.
The circuit court has collateral-order jurisdiction over certain double-jeopardy and plea-agreement related interlocutory issues and § 3731 appellate jurisdiction over portions struck from the indictment.
Several defendants (Morales, Cendejas, Melgar, Jovel, Fuentes) had 2007 prior indictments with guilty pleas, and the 2009 indictment tracks their prior drug transactions as overt acts.
The district court’s actions included striking overt acts from Counts tied to drug conspiracy, which the government contests on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy over drug distribution conspiracy counts	Morales, Cendejas, Melgar, Jovel, Fuentes show a single conspiracy; Arnold factors needed.	Separate conspiracies exist; the government failed to prove distinct conspiracies.	Remand to apply Arnold analysis; district court erred in denying dismissal.
Effect of non-prosecution provisions on 2009 charges	Non-prosecution agreements bar future prosecutions for related acts.	Certain overt acts fall within barred scope; charges may be dismissed.	Alfaro: no dismissal; Cendejas: overt act 103 struck; Jovel: overt act 158 struck; remand where appropriate.
RICO conspiracy versus predicate act double jeopardy	RICO conspiracy and predicate offenses may be barred by double jeopardy if same acts.	RICO conspiracy prosecutions may proceed separately from predicate offenses.	No double jeopardy bar to racketeering prosecutions; prior counts do not preclude 2009 RICO charges.
District court’s use of supervisory powers to strike indictment portions	District court may strike portions only with proper basis and no prejudice.	Courts may exercise supervisory powers to dismiss if necessary.	District court erred; supervisory power not justified; strikeings reversed on remand.
Reassignment on remand due to judge's prior views	Reassignment may be necessary to ensure fair proceedings.	No position on reassignment; extraordinary circumstances required.	Grant of reassignment to a different district judge on remand.

Abney v. United States, 431 F.3d 651 (9th Cir. 1977) (collateral-order doctrine applicability)
United States v. Guzman, 852 F.2d 1117 (9th Cir. 1988) (single conspiracy and multiple charges)
Braverman v. United States, 317 U.S. 49 (1942) (single agreement constitutes one conspiracy)
Arnold v. United States, 336 F.2d 347 (9th Cir. 1964) (five-factor test for conspiracy separation)
Ziskin, 360 F.3d 934 (9th Cir. 2003) (burden-shifting in double-jeopardy analysis for conspiracies)
Bendis, 681 F.2d 561 (9th Cir. 1981) (basis for Arnold factor analysis and conspiracy distinctions)
Saccoccia, 18 F.3d 795 (9th Cir. 1994) (substantive crime and conspiracy not the same offense for double jeopardy)
Felix, 503 U.S. 378 (1992) (double jeopardy surrounding conspiracy charges)
Luong, 393 F.3d 913 (9th Cir. 2004) (RICO conspiracy can be prosecuted after predicate acts)
Batchelder, 442 U.S. 114 (1979) (prosecutor’s discretion over charges)
Olson, 504 F.2d 1222 (9th Cir. 1974) (court should not interfere with prosecutorial charging decisions)
Chapman, 524 F.3d 1073 (9th Cir. 2008) (prejudice and remediable options in supervisory dismissals)
Living Designs, Inc. v. E.I. DuPont de Nemours, 431 F.3d 353 (9th Cir. 2005) (reassignment on remand where previous views may affect trial)