United States v. Wampler, 624 F.3d 1330

Government investigated McSha Properties and principals for inflated invoices to obtain loans and tax credits.
Plea negotiations led to a proposed plea: McSha would plead guilty to wire fraud and money laundering; individuals would be protected from prosecution.
District court declined to approve the plea, finding it unjust to let principals off the hook, and dismissed McSha's plea with prejudice.
Jones and McClure agreed to immunity from future prosecution to cause McSha to dismiss its appeal.
Indictment was filed against Shaver, Wampler, and Colbert; defendants moved to dismiss arguing the old plea barred prosecution and raised separation-of-powers and First Amendment retaliation theories.
District court denied the motion to dismiss, and defendants appealed to the Tenth Circuit seeking interlocutory review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal is reviewable on an interlocutory basis under Cohen	Cohen limits interlocutory review to collateral orders with statutory/constitutional guarantees against trial.	Right not to be tried arising from the plea agreement justifies immediate review.	No jurisdiction; Cohen not satisfied; appeal dismissed.
Whether the plea agreement breach claim can be reviewed interlocutorily	Plea terms do not create a statutory/constitutional right against trial that warrants immediate review.	Enforcing the plea would preempt improperly reinviting the defendants to trial.	No jurisdiction; not reviewable interlocutorily.
Whether the separation-of-powers challenge is subject to interlocutory review	Separation-of-powers intrusion by the district court affects the case pre-trial.	Should be reviewable to correct executive overreach.	Not reviewable; not a statutory/constitutional right precluding trial.
Whether First Amendment retaliation/retaliation-based defense supports interlocutory review	First Amendment concerns may preclude trial and warrant immediate review.	Such defenses are resolved post-trial, not pre-trial.	Not reviewable pre-trial; post-trial review available.
Whether double jeopardy claims are colorable and reviewable pre-trial	Double jeopardy bars future trial and should be reviewable now.	Waived/forfeited; not colorable; not reviewable pre-trial.	No colorable basis; not reviewable; dismissed for lack of jurisdiction.

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (Supreme Court, 1949) (interlocutory review limited to collateral orders with guaranteed rights not to be tried)
Midland Asphalt Corp. v. United States, 489 U.S. 794 (Supreme Court, 1989) (necessity of statutory/constitutional guarantees for early review; final judgment rule)
Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (Supreme Court, 1994) (stringent Cohen collateral-order test; limits on interlocutory review)
Mohawk Indus. v. Carpenter, 130 S. Ct. 599 (Supreme Court, 2009) (authority for rulemaking approach to finality; Cohen expansion via rules)
Eggert, 624 F.2d 973 (10th Cir., 1980) (plea agreements and interlocutory review not routinely reviewable; appellate respect for final judgments)
United States v. Ambort, 193 F.3d 1169 (10th Cir., 1999) (First Amendment defenses reviewed post-trial; no pre-trial collateral review)
United States v. Quaintance, 523 F.3d 1144 (10th Cir., 2008) (First Amendment and pre-trial review limitations; PHE context)
United States v. Bolden, 353 F.3d 870 (10th Cir., 2003) (separation-of-powers issues; post-trial relief considerations)