                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 11 2012

                                                                          MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 10-50276               U.S. COURT OF APPEALS



              Plaintiff - Appellant,             D.C. No. 2:09-cr-00466-R-1

  v.
                                                 MEMORANDUM*
JOSE ALFARO, AKA Shyboy; et al.,

              Defendants - Appellees,

  and

EDWIN ARIAS, AKA Enano; et al.,

              Defendants,

  v.

THE ASSOCIATED PRESS,

              Movant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                     Argued and Submitted December 5, 2011
                              Pasadena, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.

      The government appeals the district court’s order conditionally striking

portions of the indictment related to an alleged conspiracy by members and

associates of the Mara Salvatrucha (“MS-13”) gang to murder Los Angeles Police

Department Detective Frank Flores. We reverse.

      1. We have jurisdiction pursuant to 18 U.S.C. § 3731 over the government’s

interlocutory appeal of the district court’s pretrial order striking portions of the

indictment. Although the district court’s order is conditional, we have previously

found that § 3731 provides jurisdiction over conditional orders, such as those

suppressing evidence. See, e.g., United States v. Hoffman, 794 F.2d 1429, 1431

n.2 (9th Cir. 1986). Because the jurisdictional scope of § 3731 was broadly

intended to encompass “virtually all adverse rulings in criminal cases,” we may

properly hear this appeal. H.R. Rep. No. 107-685, at 165 (2002) (Conf. Rep.).

      2. The district court lacked authority to strike the portions of the RICO

charge involving an alleged conspiracy to murder Detective Flores, should the

government decide to call him as an expert witness on MS-13 at trial. Though we

recognize the district court’s concerns about expert witness testimony elicited from

witnesses in multiple capacities, see United States v. Freeman, 498 F.3d 893,

902–04 (9th Cir. 2007), as an incident of the constitutional separation of powers,

charging decisions are generally the prerogative of the prosecutor. United States v.
Armstrong, 517 U.S. 456, 464 (1996); United States v. Hall, 559 F.2d 1160, 1164

(9th Cir. 1977) (citing United States v. Real, 446 F.2d 40, 41 (9th Cir. 1971));

United States v. Olson, 504 F.2d 1222, 1225 (9th Cir. 1974).

      REVERSED.
