UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51161
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR ARMANDO MIRANDA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(MO-00-CR-141-15)
_________________________________________________________________
June 26, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Oscar Armando Miranda appeals the denial of his motion to
dismiss, on double jeopardy grounds, two counts of an indictment
charging that he conspired to possess marijuana with intent to
distribute it, and that he conspired to import marijuana. Miranda
also appeals the ruling that evidence introduced at his earlier
trial for possession of marijuana, which resulted in an acquittal,
will be admissible at his trial on the conspiracy charges.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The denial of a pre-trial motion to dismiss an indictment
based on double jeopardy grounds is immediately appealable under
the collateral order doctrine. See United States v. Brackett, 113
F.3d 1396, 1398 (5th Cir.), cert. denied, 522 U.S. 934 (1997);
United States v. Coldwell, 898 F.2d 1005, 1008 (5th Cir. 1990).
Questions of law concerning the denial are reviewed de novo.
Brackett, 113 F.3d at 1398.
Miranda is not entitled to dismissal of the conspiracy counts
because “a substantive crime and a conspiracy to commit that crime
are not the ‘same offence’ for double jeopardy purposes”. United
States v. Felix, 503 U.S. 378, 389 (1992).
Miranda also is not entitled to dismissal of the conspiracy
counts on a collateral-estoppel theory of double jeopardy.
Collateral estoppel “will completely bar a subsequent prosecution
if one of the facts necessarily determined in the former trial is
an essential element of the subsequent prosecution”. Brackett, 113
F.3d at 1398. The district court properly refused to dismiss these
counts because “none of the essential elements of the offense of
conspiracy to possess with intent to distribute marihuana was
‘necessarily decided’ in [Miranda’s] prior possession trial”. Id.
at 1399.
Concerning Miranda’s assertion that the evidence of the
marijuana seizure from his earlier possession trial should not be
admitted at the conspiracy trial, he maintains that his acquittal
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in the possession case conclusively established that he did not
possess marijuana on or about 19 November 1999, as alleged in the
possession indictment. Accordingly, Miranda contends that the
doctrine of collateral estoppel prevents the Government from
introducing that evidence. See id. at 1398 (“This court has
consistently held that collateral estoppel may affect successive
criminal prosecutions in one of two ways. First, it will
completely bar a subsequent prosecution if one of the facts
necessarily determined in the former trial is an essential element
of the subsequent prosecution. Second, while the subsequent
prosecution may proceed, collateral estoppel will bar the
introduction or augmentation of facts necessarily decided in the
prior proceeding.”)
The district court’s order concerning this issue was an
evidentiary ruling and did not implicate the motion to dismiss the
indictment. As Miranda made clear in his objections to the
magistrate judge’s report and recommendation, his request was that
his “Motion to Dismiss Indictment due to Double Jeopardy be granted
and in the alternative, that the Government be barred from
introduction or augmentation of the facts determined against it in
a prior proceeding based on the doctrine of Collateral Estoppel”.
(Emphasis added.)
Accordingly, for this interlocutory appeal, we do not have
jurisdiction over the evidentiary ruling. See, e.g., United States
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v. Deerman, 837 F.2d 684, 690 n.1 (5th Cir.) (stating, in the
context of an interlocutory appeal of the denial of a motion to
dismiss an indictment, that “[w]e decline to determine whether any
of the government’s evidence used in the earlier trial must be
excluded on retrial”), cert. denied, 488 U.S. 856 (1988). Although
the Government does not address this jurisdictional issue, “[i]t
goes without saying that, if necessary, we must examine sua sponte
the basis of our jurisdiction”. United States v. West, 240 F.3d
456, 458 (5th Cir. 2001).
We note that, in Brackett, an interlocutory appeal from the
denial of a motion to dismiss the indictment, our court considered
whether collateral estoppel prevented, in a subsequent conspiracy
trial, the admission of evidence from a prior drug possession trial
in which the defendant was acquitted. In Brackett, however, the
district court had suppressed the evidence and our court had
jurisdiction, pursuant to 18 U.S.C. § 3731, over the Government’s
appeal of the suppression order.
AFFIRMED
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