Opinion
Argued and Submitted November 15, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
USSD--Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Robert L. Swain, Esq., Swain & Vance, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-05-02068-TJW.
Before: B. FLETCHER, FERNANDEZ, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
The government filed an indictment against Defendant Diego Rodriguez-Martinez, charging him with one count of attempted entry after deportation in violation of 8 U.S.C. § 1326. The district court dismissed the indictment pursuant to Federal Rule of Criminal Procedure 48(b). The government filed a second indictment charging the same offense. Defendant moved to dismiss on grounds of double jeopardy, res judicata, and collateral estoppel. The district court denied the motion, and Defendant timely appeals.
Even though there is a disconnect between the November 14, 2005, order and the court's statement at the later motion hearing, the district court made no effort to correct or to amend its November 14, 2005, order. Therefore, we accept that the first indictment was dismissed pursuant to Rule 48(b), as the dismissal order stated.
We have jurisdiction to review pretrial orders rejecting claims of double jeopardy under the collateral order exception to the final judgment rule. United States v. Castiglione, 876 F.2d 73, 75 (9th Cir.1988). On de novo review, United States v. Schwartz, 785 F.2d 673, 676 (9th Cir.1986), we affirm.
When an indictment is dismissed on the merits, double jeopardy precludes reindictment for the same charge. United States v. Cejas, 817 F.2d 595, 600 (9th Cir.1987). Additionally, a dismissal with prejudice under Rule 48(b) bars further prosecution of the same offense. Castiglione, 876 F.2d at 76 n. 1. But "[n]ormally, the dismissal of an indictment has no preclusive effect on further proceedings." Cejas, 817 F.2d at 600. Here, the district court dismissed the initial indictment without prejudice and without an adjudication of the merits. Thus, neither double jeopardy principles nor res judicata barred reindictment of Defendant on the same charge.
Because no issue of ultimate fact was litigated, Defendant's claim of collateral estoppel is equally unpersuasive. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
AFFIRMED.