                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT


                          No. 01-51161
                        Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                             versus

                     OSCAR ARMANDO MIRANDA,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                         (MO-00-CR-141-15)
_________________________________________________________________
                           June 26, 2002


Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Oscar Armando Miranda appeals the denial of his motion to

dismiss, on double jeopardy grounds, two counts of an indictment

charging that he conspired to possess marijuana with intent to

distribute it, and that he conspired to import marijuana.    Miranda

also appeals the ruling that evidence introduced at his earlier

trial for possession of marijuana, which resulted in an acquittal,

will be admissible at his trial on the conspiracy charges.



     *
      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this opinion should not be published and is not precedent except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.
     The denial of a pre-trial motion to dismiss an indictment

based on double jeopardy grounds is immediately appealable under

the collateral order doctrine.     See United States v. Brackett, 113

F.3d 1396, 1398 (5th Cir.), cert. denied, 522 U.S. 934 (1997);

United States v. Coldwell, 898 F.2d 1005, 1008 (5th Cir. 1990).

Questions of law concerning the denial are reviewed de novo.

Brackett, 113 F.3d at 1398.

     Miranda is not entitled to dismissal of the conspiracy counts

because “a substantive crime and a conspiracy to commit that crime

are not the ‘same offence’ for double jeopardy purposes”.          United

States v. Felix, 503 U.S. 378, 389 (1992).

     Miranda also is not entitled to dismissal of the conspiracy

counts   on   a   collateral-estoppel   theory    of    double   jeopardy.

Collateral estoppel “will completely bar a subsequent prosecution

if one of the facts necessarily determined in the former trial is

an essential element of the subsequent prosecution”. Brackett, 113

F.3d at 1398. The district court properly refused to dismiss these

counts because “none of the essential elements of the offense of

conspiracy to possess with intent to distribute marihuana was

‘necessarily decided’ in [Miranda’s] prior possession trial”.           Id.

at 1399.

     Concerning    Miranda’s   assertion   that   the   evidence   of   the

marijuana seizure from his earlier possession trial should not be

admitted at the conspiracy trial, he maintains that his acquittal

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in the possession case conclusively established that he did not

possess marijuana on or about 19 November 1999, as alleged in the

possession indictment.            Accordingly, Miranda contends that the

doctrine    of    collateral      estoppel         prevents    the    Government       from

introducing that evidence.               See id. at 1398 (“This court has

consistently held that collateral estoppel may affect successive

criminal    prosecutions         in    one    of     two   ways.      First,     it    will

completely       bar    a   subsequent       prosecution      if   one     of   the    facts

necessarily determined in the former trial is an essential element

of the subsequent prosecution.                     Second, while the subsequent

prosecution       may       proceed,    collateral         estoppel      will    bar    the

introduction or augmentation of facts necessarily decided in the

prior proceeding.”)

      The district court’s order concerning this issue was an

evidentiary ruling and did not implicate the motion to dismiss the

indictment.        As Miranda made clear in his objections to the

magistrate judge’s report and recommendation, his request was that

his “Motion to Dismiss Indictment due to Double Jeopardy be granted

and   in   the    alternative,         that    the    Government      be    barred     from

introduction or augmentation of the facts determined against it in

a prior proceeding based on the doctrine of Collateral Estoppel”.

(Emphasis added.)

      Accordingly, for this interlocutory appeal, we do not have

jurisdiction over the evidentiary ruling. See, e.g., United States


                                              3
v. Deerman, 837 F.2d 684, 690 n.1 (5th Cir.) (stating, in the

context of an interlocutory appeal of the denial of a motion to

dismiss an indictment, that “[w]e decline to determine whether any

of the government’s evidence used in the earlier trial must be

excluded on retrial”), cert. denied, 488 U.S. 856 (1988). Although

the Government does not address this jurisdictional issue, “[i]t

goes without saying that, if necessary, we must examine sua sponte

the basis of our jurisdiction”.        United States v. West, 240 F.3d

456, 458 (5th Cir. 2001).

     We note that, in Brackett, an interlocutory appeal from the

denial of a motion to dismiss the indictment, our court considered

whether collateral estoppel prevented, in a subsequent conspiracy

trial, the admission of evidence from a prior drug possession trial

in which the defendant was acquitted.        In Brackett, however, the

district court had suppressed the evidence and our court had

jurisdiction, pursuant to 18 U.S.C. § 3731, over the Government’s

appeal of the suppression order.

                                                           AFFIRMED




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