United States v. Terrell Lewis, 844 F.3d 1007

In 2010 Lewis was indicted on three Hobbs Act robbery counts and three firearm counts; in 2012 he pled guilty to two firearm counts under a plea agreement that included a confidential cooperation clause requiring ongoing cooperation (including testifying for state prosecutions) and permitting the government to reinstate dismissed counts if Lewis failed to continue cooperating.
At sentencing the government moved for a downward departure; Lewis’s total sentence on the two convictions was reduced and the remaining four counts from the 2010 indictment were dismissed pursuant to the plea agreement.
In 2013 a Missouri prosecutor sought Lewis’s testimony in a state murder prosecution; Lewis refused to cooperate or testify, and the state dismissed its case.
The government concluded Lewis breached his plea agreement and a federal grand jury reindicted him on the three Hobbs Act robbery counts and one firearm count that had been previously dismissed.
Lewis moved to dismiss the new indictment arguing double jeopardy, collateral estoppel, and that he had fully performed under the plea agreement; a magistrate recommended denial, the district court adopted that recommendation, and Lewis filed an interlocutory appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the new indictment is barred by double jeopardy	Lewis: prior dismissal of counts terminated jeopardy; reindictment violates double jeopardy	Gov: prior counts were dismissed pretrial before jeopardy attached, so double jeopardy not implicated	Court: Jeopardy had not attached; double jeopardy claim is not colorable and fails
Whether collateral estoppel bars the new prosecution	Lewis: prior dismissal functions like acquittal on issues so government is precluded from relitigation	Gov: no prior jury acquittal existed because counts were dismissed pre-empaneling	Court: No prior jury decision existed; collateral estoppel inapplicable
Whether Lewis fully performed plea obligations and due process bars reprosecution	Lewis: he performed required obligations and reprosecution violates due process	Gov: Lewis breached by refusing to testify as required by the cooperation clause	Court: Denial of dismissal on plea-agreement breach is not immediately appealable; merits review must await final judgment
Whether the interlocutory appeal is jurisdictionally proper	Lewis: appeals denial now to resolve plea-agreement and due-process claims	Gov: only double jeopardy/collateral-estoppel pretrial claims are immediately appealable; other claims require final judgment	Court: Only double jeopardy/collateral estoppel claims are reviewable pretrial; other claims fail the Cohen collateral-order exception and appeal dismissed for lack of jurisdiction

United States v. Howe, 590 F.3d 552 (8th Cir. 2009) (jurisdiction to review colorable pretrial double jeopardy/collateral-estoppel claims)
United States v. Bailey, 34 F.3d 683 (8th Cir. 1994) (double jeopardy attachment rule and Cohen analysis for interlocutory appeals)
Serfass v. United States, 420 U.S. 377 (1975) (jeopardy attaches when trial begins before a trier of fact)
United States v. Lasater, 535 F.2d 1041 (8th Cir. 1976) (pretrial dismissal before conviction means jeopardy did not attach)
Yeager v. United States, 557 U.S. 110 (2009) (collateral estoppel requires a prior jury acquittal)
United States v. Ecker, 232 F.3d 348 (2d Cir. 2000) (orders denying dismissal for breached plea agreements are not appealable pre-judgment)
United States v. Ledon, 49 F.3d 457 (8th Cir. 1995) (same: plea-agreement breach dismissal orders are not final or appealable)
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (collateral-order doctrine requirements for interlocutory appeal)