                                                             [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                APRIL 9, 2008
                               No. 07-14314
                                                              THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 06-20334-CR-PAS

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

TRUJILLO DARVILLE,

                                                        Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (April 9, 2008)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Trujillo Darville appeals the denial of his motion to dismiss the
indictment, of which he now stands convicted, charging him with conspiracy and

attempt to import and possess with intent to distribute cocaine, in violation of

21 U.S.C. §§ 846, 963. Darville had pled guilty and been sentenced for a

substantive cocaine charge arising out of an offense involving the importation of

cocaine in March 2006. The instant conspiracy and attempt charges arose out of a

prior offense, committed in January 2006. Citing United States v. Reed, 980 F.2d

1568 (11th Cir. 1993), and United States v. Boldin, 772 F.2d 719 (11th Cir. 1985),

Darville argues on appeal that, because the government allegedly was aware of the

facts behind the January offense forming the basis of the instant indictment when it

charged him for the March offense, it was now barred from prosecuting the instant

indictment “because of the due diligence requirement established as an outgrowth

of double jeopardy litigation.”

      Darville’s claim involves a pure question of law, and thus, is reviewed de

novo. Cf. United States v. Duarte-Acero, 208 F.3d 1282, 1284 (11th Cir. 2000).

“The due diligence exception was created to permit a second prosecution in those

cases in which the Double Jeopardy Clause would otherwise bar it.” United States

v. Maza, 983 F.2d 1004, 1008 (11th Cir. 1993). In Boldin, we stated that our

holding that the prosecution was not barred by double jeopardy from bringing a 21

U.S.C. § 848 Continuing Criminal Enterprise (“CCE”) charge “d[id] not preempt



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the appellants’ other argument that the government subject[ed] them to multiple

prosecutions because, in the exercise of due diligence, it knew or should have

known of the appellants’ participation in a continuing series of violations of

section 848.” Boldin, 772 F.2d at 732. However, in Maza, a case decided later

that also involved a § 848 charge subsequent to a conspiracy conviction, we noted

that Boldin’s discussion of a due diligence requirement was dicta. 983 F.2d at

1008 n.8. In Maza, we held that the district court’s finding that the prosecution

was not double-jeopardy barred, but was barred for lack of due diligence in

bringing charges, was erroneous. See id. at 1008. Further, we noted that the

district court:

       applied the due diligence concept to preclude a second prosecution
       which he had already decided was not barred by double jeopardy.
       This is precisely the reverse order of the correct application of the
       doctrine. The Double Jeopardy Clause does not preclude bringing in a
       second action any charge which might have been brought in the first
       action. Rather, it only precludes those which must have been brought
       in the first or be forever lost. The due diligence doctrine provides an
       exception in this latter situation. Thus, it follows, that if the
       government need not have brought all of its charges in the first action,
       there was nothing for it to be diligent about.

Id.

       Because Darville does not argue that the instant charges violate the Due

Process Clause, we conclude that the due diligence exception is inapplicable. By

conceding that there was no double-jeopardy bar applicable to either indictment, he

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cannot now argue that there was anything for the government “to be diligent

about,” and, thus, the due diligence exception to a double jeopardy bar is

inapplicable and his due diligence challenge is baseless. Accordingly, we affirm

the district court’s order denying Darville’s motion to dismiss the indictment and

thus affirm Darville’s conviction.

      AFFIRMED.




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