     Case: 12-10893       Document: 00512118159         Page: 1     Date Filed: 01/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 18, 2013
                                     No. 12-10893
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSHUA WAYNE BEVILL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CR-82-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Joshua Wayne Bevill has filed an interlocutory appeal of the district
court’s pretrial order denying his motion to dismiss the indictment on the
grounds of double jeopardy and collateral estoppel. Bevill asserts that the
instant fraud charges alleged against him involve the same offense as that
encompassed by his previous plea to securities fraud, as both cases involved
substantially the same scheme. He also contends that he would be punished
twice for the same offense because in creating a presentence report prior to the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-10893

withdrawal of Bevill’s guilty plea to money laundering in the instant case, the
probation officer considered as relevant conduct the same 101 victims that had
been considered as relevant conduct in the previous case.
      The denial of a motion to dismiss an indictment on double jeopardy
grounds is immediately appealable under the collateral order doctrine. United
States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997). However, Bevill must
present a colorable claim of double jeopardy to warrant this court’s jurisdiction.
Richardson v. United States, 468 U.S. 317, 322, 326 n.6 (1984); United States v.
Shelby, 604 F.3d 881, 885 (5th Cir. 2010). We review de novo the district court’s
order denying a motion to dismiss the indictment on double jeopardy grounds
and accept as true any underlying factual findings that are not clearly
erroneous. United States v. Mauskar, 557 F.3d 219, 227 (5th Cir. 2009).
      The Double Jeopardy Clause provides that no person shall “be subject for
the same offense to be twice put in jeopardy of life or limb.” U.S. CONST. amend.
V. “[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). If
application of the Blockburger test reveals that the offenses have identical
statutory elements or that one is a lesser included offense of the other, the
subsequent prosecution is barred. United States v. Deshaw, 974 F.2d 667, 670
(5th Cir. 1992). Even if the Blockburger test is not satisfied, the reviewing court
must also consider the complaint alleged here and whether a second prosecution
is barred under the doctrine of collateral estoppel. Id. (citing Ashe v. Swenson,
397 U.S. 436, 445 (1970)).       This doctrine may either “completely bar a
subsequent prosecution if one of the facts necessarily determined in the former
trial is an essential element of the subsequent prosecution,” or it may “bar the
introduction or argumentation of facts necessarily decided in the prior
proceeding.” Brackett, 113 F.3d at 1398.

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                                  No. 12-10893

      To the extent that Bevill is arguing that the two charging instruments
allege a violation of the same offense because he engaged in the same fraudulent
scheme on two occasions, “the precise acts involved are different,” and he is thus
unable to establish that “the two offenses are in law and in fact the same
offense” for double jeopardy purposes. United States v. Wayman, 510 F.2d 1020,
1029 (5th Cir. 1975). Additionally, Bevill is unable to show collateral estoppel,
because the Government must prove that Bevill made fraudulent statements to
the new victims relating to a scheme to sell securities and the use of interstate,
mail, or wire communications occurred, and these facts were not established in
the previous prosecution. See Brackett, 113 F.3d at 1398. To the extent that
Bevill’s assertion that he may be punished twice for the same offense by having
the same relevant conduct counted twice is ripe for review, given that Bevill has
not yet been convicted of any count in the second indictment, his assertions are
without merit. The “use of evidence of related criminal conduct to enhance a
defendant’s sentence for a separate crime within the authorized statutory limits
does not constitute punishment for that conduct within the meaning of the
Double Jeopardy Clause.” Witte v. United States, 515 U.S. 389, 399 (1995).
      Bevill thus has not made a colorable showing of a double jeopardy
violation, and this court thus lacks jurisdiction over this interlocutory appeal.
See Richardson, 468 U.S. at 322, 326 n.6; Shelby, 604 F.3d at 885. As a result,
the Government’s motion to dismiss the appeal is GRANTED, and the appeal is
DISMISSED AS FRIVOLOUS.            The Government’s alternative motions for
summary affirmance and for an extension of time to file an appellate brief are
DENIED. Bevill’s motions to amend his initial brief and to file a supplemental
response to the Government’s motion are GRANTED. The Government’s motion
to file Exhibit E of its motion under seal is also GRANTED. Bevill’s motion for
reconsideration of this court’s refusal to stay the district court proceedings is
DENIED.



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