UNITED STATES of America, Plaintiff-Appellee, v. Siale ANGILAU, Defendant-Appellant.
No. 12-4025.
United States Court of Appeals, Tenth Circuit.
June 14, 2013.
717 F.3d 781
Diana Hagen, Assistant United States Attorney (David B. Barlow, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.
Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
HARTZ, Circuit Judge.
This appeal arises from the latest in a series of four prosecutions by Utah and federal authorities of Defendant Siale Angilau on charges stemming from the shooting of two deputy United States marshals in August 2007. In the case now before us, Defendant was indicted on four counts by a grand jury for the United States District Court for the District of Utah. One count charged racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO). See
Defendant moved to dismiss the three shooting-related charges as barred by double jeopardy. He founded his argument on events in the first case brought against him by the federal government (the First Federal Case), in which prosecutors dismissed charges of assaulting the marshals, see
Defendant appeals while his case is pending trial. He continues to press his due-process challenge to both the firearm and VICAR charges. He also maintains that the Double Jeopardy Clause compels dismissal of the firearm count, because it is the same offense as the firearm charge dismissed with prejudice in the First Federal Case. And he adds the new argument that the double-jeopardy doctrine of collateral estoppel bars the government from prosecuting the VICAR and firearm charges because facts necessary to convict him on these charges were found in his favor when the charges in the First Federal Case were dismissed with prejudice.
I. BACKGROUND
A. Prior Prosecutions
The first charges against Defendant arising out of the August 2007 shooting of the marshals were brought in Utah state court in March 2008. He pleaded guilty to obstruction of justice and failure to stop at the command of police. At his change-of-plea and sentencing hearing in state court, both the prosecutor and a representative of the United States Marshals Service agreed to recommend against federal charges in connection with the shooting, although the court explained to Defendant that this was merely a recommendation.
Shortly thereafter, in July 2008, Defendant was indicted in the First Federal Case on charges arising from the July 2007 robbery of a 7-Eleven store, which predated (and is apparently unrelated to) the shooting of the marshals. One count alleged a violation of the Hobbs Act,
B. The Present Case
But that was not the end of the government‘s attempts to prosecute Defendant for the marshals shooting. Apparently desiring to charge the shooting as part of a broader RICO case against additional defendants, the government filed a second superseding indictment in May 2010 in the case now before us. It included numerous charges against members of the Tongan Crip Gang, a criminal organization to which Defendant is alleged to belong. As previously noted, four counts name Defendant. The racketeering-conspiracy charge makes no mention of the marshals shooting in the overt acts it sets forth. The other three counts—the assault count, the VICAR count, and the firearm count—arise out of the marshals shooting.
Defendant moved to dismiss all four counts. He argued that the government‘s dismissal in the First Federal Case of the
The district court granted Defendant partial relief. It held that Federal Rule of Criminal Procedure 48(a) and our decision in United States v. Derr, 726 F.2d 617 (10th Cir.1984), require the government to provide reasons for seeking a dismissal without prejudice, found that the government had failed to provide adequate reasons, and therefore ruled that the dismissal of the assault and firearm counts in the First Federal Case must be with prejudice. The court also granted Defendant‘s double-jeopardy motion in part, dismissing the identical assault charge in this case; but it otherwise denied Defendant‘s motions to dismiss.
Defendant appeals. He argues (1) that the district court should have dismissed the VICAR and firearm counts on the ground that the government, by repeatedly charging and dismissing counts arising from the marshals shooting, engaged in prosecutorial harassment so severe as to constitute a violation of his due-process rights (he no longer challenges the conspiracy count on this ground); (2) that the Double Jeopardy Clause compels dismissal of the firearm count because it is the same offense as the firearm count dismissed with prejudice in the First Federal Case; and (3) that the court should have dismissed both the firearm and VICAR counts under the Double Jeopardy Clause‘s collateral-estoppel doctrine because they contain factual elements that were determined in his favor by the dismissal with prejudice of the assault and firearm counts. We begin our analysis by addressing our jurisdiction. We hold that we have jurisdiction to consider Defendant‘s second and third arguments but not the first. We then reject the second and third arguments on the merits.
II. DISCUSSION
A. Jurisdiction
The prosecution of Defendant is still pending in the district court. Ordinarily, we cannot hear appeals in criminal cases before final judgment. Under
But there are exceptions. Under the collateral-order doctrine, we can hear immediate appeals of decisions before final judgment that “[1] finally determine claims of right [2] separable from, and collateral to, rights asserted in the action, [and] [3] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Among such orders are “pretrial orders rejecting claims of former jeopardy.” Abney, 431 U.S. at 662, 97 S.Ct. 2034. Such an order satisfies the collateral-order doctrine because (1) the district court‘s order finally determines the double-jeopardy issue, (2) the issue is separable from the principal issue at trial—the
We cannot, however, review Defendant‘s due-process challenge. Our jurisdiction to hear the double-jeopardy claims does not extend to other issues. “[W]e have no ‘pendent’ appellate jurisdiction.” United States v. Wittig, 575 F.3d 1085, 1095 (10th Cir.2009). We can review the due-process claim only if it independently “fall[s] within Cohen‘s collateral-order exception to the final-judgment rule.” Abney, 431 U.S. at 663, 97 S.Ct. 2034. In our view, it does not.
To support jurisdiction, Defendant relies on our opinion in United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir.1992). That reliance is misplaced. P.H.E. was a very narrow decision. We held that we had jurisdiction to review the pretrial denial of the defendants’ claim that their prosecution was motivated by the government‘s desire to “burden [defendants] with massive costs of defending themselves so as to drive them out of business” and prevent them from disseminating materials protected by the First Amendment. Id. at 854. We said that the case
present[ed] an unusual, perhaps unique confluence of factors: substantial evidence of an extensive government campaign, of which this indictment is only a part, designed to use the burden of repeated criminal prosecutions to chill the exercise of First Amendment rights. Under these circumstances we are persuaded that the district court‘s order implicates important rights which would be lost, probably irrevocably, if review had to await final judgment.
Id. at 855 (emphasis added) (brackets, ellipsis, and internal quotation marks omitted).
Whatever the merits of P.H.E. under current Supreme Court law, Defendant‘s issue is quite different. No First Amendment claim is at play. Defendant asks us to dismiss the VICAR and firearm counts simply “based on prosecutorial harassment,” contending that he has been subjected to “the continual and undue burden of defending four prosecutions for the same alleged criminal act.” Aplt. Br. at 17.
In our view, the issue raised by Defendant is like one that the Supreme Court has already found not to satisfy the Cohen requirements. In United States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982) (per curiam), the Supreme Court considered an attempted appeal of the denial of a motion to dismiss an indictment on the ground that prosecutorial vindictiveness denied the defendants due process. See id. at 264, 102 S.Ct. 3081. The defendants alleged that the government had secured a superseding indictment with additional charges against them in retaliation for their obtaining a change of venue. See id. The Court held that such an appeal did not satisfy Cohen‘s third requirement because the order was not effectively unreviewable on appeal from a final judgment. See id. at 267, 102 S.Ct. 3081. The Court wrote that “[o]bviously, it is wholly desirable to correct prior to trial any substantive er-
As in Hollywood, Defendant cannot point to authority that protects him from being subjected to a trial caused by the alleged prosecutorial misconduct. In contrast to the Double Jeopardy Clause, which does preclude the government from subjecting the defendant to a second trial, the prohibition on prosecutorial misconduct guarantees only (at least absent a “unique confluence of factors,” as in P.H.E., 965 F.2d at 855) that any conviction from an improper prosecution will be set aside. Particularly in light of what appears to be the Supreme Court‘s increasing reluctance to expand the collateral-order doctrine, see United States v. Wampler, 624 F.3d 1330, 1334 (10th Cir.2010), we hold that we lack jurisdiction to review Defendant‘s due-process claim.
We now turn to Defendant‘s arguments founded on the Double Jeopardy Clause.
B. Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
Defendant asserts that the current firearm charge against him under
As relevant,
[A]ny person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm ... shall, in addition to the punishment provided for such crime of violence ... [, be imprisoned].
(If the use or carrying involves brandishing or discharging a firearm, the penalty is increased. See
The
In this case, in contrast, the crime of violence alleged in support of the
Comparing the elements of the two firearm offenses, we see that the fourth and fifth elements of the
This conclusion finds support in our precedents applying the Blockburger test to charges under
Defendant argues that “[t]he factual event” underlying these two
C. Collateral Estoppel
The Supreme Court has construed the Double Jeopardy Clause to encompass aspects of collateral-estoppel doctrine. See Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Under this doctrine, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. 1189. We assess the record “with realism and rationality,” looking to what was “actually determined in the prior prosecution.” United States v. Addington, 471 F.2d 560, 567 (10th Cir.1973).
Because Defendant failed to make a collateral-estoppel argument to the district court, we review only for plain error. “Under the plain error standard, a defendant must show clear or obvious error that affected his substantial rights and seriously affected the integrity of the judicial proceedings.” United States v. Frierson, 698 F.3d 1267, 1269 (10th Cir.2012) (brackets and internal quotation marks omitted).
Defendant contends that “the facts upon which [the firearm count in this case] are based are exactly the same as those upon which the dismissed counts in [the First Federal Case] were based. These facts are the August 11, 2007 incident [the marshals shooting].” Aplt. Br. at 14. In his view, this means that “the government is barred from bringing any charges based on the facts of the August 11, 2007 assault incident.” Id. Similarly, he contends that because “the facts of [the marshals shooting]” were determined by the dismissal with prejudice, the VICAR count “cannot be proved at trial and must fail.” Id. at 15.
III. CONCLUSION
We AFFIRM the district court‘s denial of Defendant‘s motion to dismiss the charges against him on double-jeopardy grounds. We DISMISS Defendant‘s appeal from the denial of his motion to dismiss the charges on the ground of prosecutorial harassment.