951 F. 2d 1261 - United States v. B Wilkerson Db

Appellant challenges the district court's denial of his motion to dismiss on grounds of double jeopardy. In August 1988, a federal grand jury charged Appellant with conspiracy to defraud a savings and loan association insured by the Federal Savings and Loan Insurance Corporation, and with obtaining monies from such savings and loan by fraud, deceit and false representation. On October 12, 1988, the court dismissed the indictment based on the government's non-compliance with discovery orders. This court reversed that dismissal. The indictment was reinstated and trial was set for September 3, 1990.

On August 27, 1990, the district court granted the government's motion to dismiss without prejudice pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure. On April 17, 1991, a federal grand jury returned another indictment charging Appellant with essentially the same offenses. Appellant moved to dismiss the case with prejudice under Rule 48(b) or, in the alternative, to dismiss as a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The district court denied Appellant's motion. Appellant now appeals that portion of the district court's order denying his motion to dismiss on double jeopardy grounds.

After a through review of the briefs and the record, we AFFIRM the district court's disposition of Appellant's double jeopardy claim for substantially the reasons stated therein.

We further conclude that we are without jurisdiction to entertain an appeal with respect to Appellant's due process and speedy trial claims. The district court has not yet issued a final order in this case. Thus, we DISMISS the appeal of these issues as premature.

The district court's disposition of Appellant's double jeopardy claim is AFFIRMED. The appeals of speedy trial and due process claims are DISMISSED as premature.