                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                           March 27, 2017
                                     TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                            Clerk of Court


    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                        No. 16-3260
                                                   (D.C. No. 2:15-CR-20020-JAR-10)
    GUILLERMO MORALES,                                          (D. Kan.)

          Defendant - Appellant.


                                  ORDER AND JUDGMENT*


Before BRISCOE, McKAY and BALDOCK, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

         Defendant Guillermo Morales was charged in a superseding indictment with one

count of conspiring to manufacture, possess with the intent to distribute, and distribute

fifty grams or more of methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(viii), and 846; and one count of using a communication facility to


*
 This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
commit that conspiracy, in violation of 21 U.S.C. § 843(b). Morales moved to dismiss

the indictment on the basis that the State of Kansas had already charged and convicted

him of several narcotics crimes based on the same activity for which he presently faces

federal prosecution. The district court denied the motion, and Morales brings this

interlocutory appeal. Concluding that we lack jurisdiction, we dismiss the appeal.

                                              I

       Pending before us are the United States’s motion to dismiss the appeal for want of

jurisdiction and Morales’s motion for leave to file exhibits to his reply brief under seal.

Before we can address the merits of Morales’s claims or his pending motion, we must

determine whether we have jurisdiction over his appeal. Shepherd v. Holder, 678 F.3d

1171, 1180 (10th Cir. 2012); see also United States v. Ruiz, 536 U.S. 622, 628 (2002)

(explaining that “a federal court always has jurisdiction to determine its own

jurisdiction”).

       Morales’s prosecution “is still pending in the district court,” and normally this

court “cannot hear appeals in criminal cases before final judgment.” United States v.

Angilau, 717 F.3d 781, 785 (10th Cir. 2013). Specifically, our jurisdiction extends only

to “appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. However,

the collateral order doctrine allows us to “hear immediate appeals of decisions” 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

                                              2
adjudicated.” Angilau, 717 F.3d at 785 (alterations in original) (quoting Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).

       The Supreme Court has “interpreted the collateral order exception with the utmost

strictness in criminal cases.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798

(1989) (quotation marks and citation omitted). To “secure interlocutory review of a

collateral order based on a claimed ‘right not to be tried,’ some constitutional or statutory

provision must grant [a defendant] that right.” United States v. Wampler, 624 F.3d 1330,

1332 (10th Cir. 2010) (emphasis added). “[O]nly when a statutory or constitutional

provision itself contains a guarantee that a trial will not occur . . . may courts of appeals

intervene prior to a final judgment to review the defendant’s claimed ‘right not to be

tried.’” Id. at 1336 (quoting Midland Asphalt, 489 U.S. at 801) (collecting cases). Where

“no such provision is in play, we must, as usual, defer review of [a defendant’s]

arguments until after [her or his] trial, should it happen to result in a final judgment of

conviction.” Id. at 1332.

       Morales advances two arguments as to why we have jurisdiction over his

interlocutory appeal under the collateral order doctrine. First, he argues that his present

prosecution violates the Double Jeopardy Clause.1 See U.S. Const. amend. V. Second,


1
  The United States argues that Morales waived any claim that his prosecution violates the
Clause by failing to make that argument before the district court in his motion to dismiss,
and then foreclosed consideration of that waived claim on appeal by failing to argue that
the district court plainly erred. See Wampler, 624 F.3d at 1340. We need not decide that
issue because, in any event, Morales’s jurisdictional arguments regarding the Clause are
unavailing.

                                               3
he contends that his prosecution violates the Department of Justice’s Petite policy. We

reject each argument in turn.

                                A. The Double Jeopardy Clause

       “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.’”

Angilau, 717 F.3d at 787 (quoting U.S. Const. amend. V). The Clause prohibits both

“multiple prosecutions” and “multiple punishments” for “the same crime.” United States

v. Barrett, 496 F.3d 1079, 1118 (10th Cir. 2007) (quoting United States v. Long, 324 F.3d

475, 478 (7th Cir. 2003), and citing United States v. Dixon, 509 U.S. 688, 695–96

(1993)). Consequently, we can hear interlocutory appeals from “pretrial orders rejecting

claims of former jeopardy.” Angilau, 717 F.3d at 785 (quoting Abney v. United States,

431 U.S. 651, 662 (1977)).

       However, “mere recitation of the term ‘double jeopardy’ in the motion to dismiss

does not bring [a] defendant’s appeal within the” collateral order doctrine. United States

v. Ritter, 587 F.2d 41, 43 (10th Cir. 1978). Rather, a “claim of double jeopardy must be

at least ‘colorable’ to confer interlocutory jurisdiction on an appellate court.” Wampler,

624 F.3d at 1340 (citing Richardson v. United States, 468 U.S. 317, 322 & n.6 (1984);

United States v. McAleer, 138 F.3d 852, 857 (10th Cir. 1998)). “To be colorable, a claim

must have some possible validity.” McAleer, 138 F.3d at 857 (citing Richardson, 468

U.S. at 322 & n.6). Where we have previously “rejected the identical double jeopardy

claim” that the defendant “raises,” he “has failed to raise a colorable claim.” Id.

                                              4
       Morales argues that the Double Jeopardy Clause bars the United States from

prosecuting him for activities for which Kansas also convicted him. But it is well

established that the Clause does “not bar the federal prosecution of a criminal defendant

who ha[s] previously been tried and convicted in state court for the same underlying

conduct.” Barrett, 496 F.3d at 1118; see also Puerto Rico v. Sanchez Valle, __ U.S. __,

136 S. Ct. 1863 (2016) (explaining that “under what is known as the dual-sovereignty

doctrine, a single act gives rise to distinct offenses—and thus may subject a person to

successive prosecutions—if it violates the laws of separate sovereigns,” id. at 1867, and

that “States are separate sovereigns from the Federal Government (and from one

another),” id. at 1871). Therefore, Morales’s federal prosecution based on activities for

which Kansas previously convicted him does not establish a colorable claim of a violation

of the Double Jeopardy Clause. Wampler, 624 F.3d at 1340; McAleer, 138 F.3d at 857.

As a result, Morales’s invocation of the Clause does not vest us with jurisdiction over his

interlocutory appeal. Angilau, 717 F.3d at 785, 787–88.

                                    B. The Petite Policy

       Morales also contends that we have jurisdiction to hear his interlocutory appeal

because the United States violated its Petite policy, under which he claims to have a right

not to be tried for the charged offenses. “The Petite policy provides that after a state trial

a subsequent federal trial for the same conduct should not occur absent compelling

reasons and prior approval by the Justice Department.” United States v. Raymer, 941




                                              5
F.2d 1031, 1045 n.2 (10th Cir. 1991). But the policy is “not constitutionally mandated

. . . .” Rinaldi v. United States, 434 U.S. 22, 29 (1977) (per curiam).

       Specifically, in United States v. Thompson, we held that the Petite policy “is

merely a housekeeping provision of the” Department of Justice, “that it is at most a guide

for the use of the Attorney General and the United States Attorneys in the field,” and that

it is not “capable of giving rise to an enforceable right in favor of the defendant.” 579

F.2d 1184, 1189 (10th Cir. 1978) (en banc). We have repeatedly reiterated “that a

defendant is not entitled to dismissal of an indictment even if the government does not

comply with its Petite policy.” Raymer, 941 F.2d at 1037 (collecting cases); see Barrett,

496 F.3d at 1120–21 (same). And because that is so, “there is no merit whatsoever to” a

criminal defendant’s motion to dismiss an indictment premised on the United States’s

alleged violation of or refusal to implement the Petite policy. United States v.

Valenzuela, 584 F.2d 374, 378 (10th Cir. 1978). Therefore, “jurisdiction to entertain an

interlocutory appeal” from the denial of such a motion “does not exist.” Id.

       Morales has not argued that this precedent is inapposite here. See United States v.

White, 782 F.3d 1118, 1127 (10th Cir. 2015). He instead suggests that Thompson should

be reconsidered because several jurists—in concurrences and dissents—have expressed

reservations about the Petite policy. See e.g., Sanchez Valle, 136 S. Ct. at 1877

(Ginsburg, J., concurring). But Morales points to no authority holding that the Petite

policy confers a substantive right on a defendant not to stand trial, let alone a right that




                                               6
may be vindicated on interlocutory appeal. See Wampler, 624 F.3d at 1332, 1335–36.

Indeed, no such authority exists.

       Morales’s argument that Thompson should be reconsidered in this interlocutory

context does not derive from any intervening change in the law or Supreme Court

precedent. And it is axiomatic that a “panel of this court cannot overrule the judgment of

another panel absent en banc consideration or an intervening Supreme Court decision that

is contrary to or invalidates our previous analysis.” White, 782 F.3d at 1127 (quoting

United States v. Nichols, 775 F.3d 1225, 1230 (10th Cir. 2014)). Morales has therefore

failed to establish that he has any colorable claim to have the indictment dismissed based

on the Petite policy. Consequently, we have no jurisdiction to hear his interlocutory

appeal. See Valenzuela, 584 F.2d at 378.

                                             II

       We lack jurisdiction to hear Morales’s interlocutory appeal. Therefore, the United

States’s motion to dismiss is GRANTED, Morales’s motion for leave to file exhibits to

his reply brief under seal is denied as MOOT, the Clerk of Court is directed not to file the

exhibits, and the appeal is DISMISSED.

                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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