                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   October 26, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-1476
                                               (D.C. No. 1:08-cr–00263-KHV-1)
    WILLIAM I. WILSON,                                     (D. Colo.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.



         Pursuant to Fed. R. App. P. 27(a) and 10th Cir. R. 27.2, the United States

has moved to dismiss this pro se appeal for lack of appellate jurisdiction. We

agree with the United States that this court lacks jurisdiction to hear an

interlocutory appeal of the part of the order entered by the district court on

October 14, 2010, denying Mr. Wilson’s motion to dismiss the initial and



*
       After examining the appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
superseding indictments based on his allegations of vindictive prosecution. See

Doc. 232 at 33-36. As the United States has explained, “[t]his court lacks

jurisdiction because the ruling below is not a final order under 28 U.S.C. § 1291

and the circumstances do not satisfy any of the narrow exceptions to § 1291’s

finality requirement.” Motion to Dismiss Appeal at 1.

      Mr. Wilson claims that the United States filed the subject criminal charges

against him in retaliation for his having filed two civil rights lawsuits. Relying

on this court’s decision in United States vs. P.H.E., Inc., 965 F.2d 848 (10th Cir.

1992), Mr. Wilson argues that he should therefore be able to pursue an immediate

interlocutory appeal to protect his First Amendment right to be free from

vindictive prosecution. We disagree. As explained by the district court in the

order it entered on October 14, 2010, denying Mr. Wilson’s motion to abate the

district court proceedings, “[w]hen vindictive or selective prosecution is alleged,

the claim is not subject to interlocutory appeal because it is effectively reviewable

on appeal from a final judgment.” Doc. 240 at 4 (citing United States v.

Hollywood Motor Car Co., 458 U.S. 263, 270 (1982) (additional citations

omitted)). Further, although we allowed an interlocutory appeal in P.H.E. to

review a claim of prosecutorial vindictiveness, this case does not contain the

exceptional circumstances that were present in P.H.E., and P.H.E. is easily

distinguishable.




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       To begin with, in contrast to the bank fraud and identity theft charges in

this case, P.H.E. involved a pornography prosecution that directly implicated the

First Amendment. In addition, as explained by the district court, “[the]

defendants in P.H.E. alleged that continued prosecution chilled the distribution of

materials which were protected by the First Amendment. Here, in contrast,

defendant has identified no ongoing impact on his First Amendment rights . . .

[or] explained how an immediate appeal would more fully protect his First

Amendment rights than an appeal after a final judgment.” Doc. 240 at 5

(underlining changed to italics). Indeed, Mr. Wilson has made no showing that

the government’s prosecution of this case is having any adverse impact on his

efforts to seek relief in his civil rights lawsuits. In fact, the district court has

dismissed one of the cases without prejudice at the request of Mr. Wilson and the

other case is presently on appeal in this court. Id. at 2-3.

       This appeal is DISMISSED for lack of appellate jurisdiction.

Mr. Wilson’s emergency motion to stay the district court proceedings is DENIED

as moot.



                                                        ENTERED FOR THE COURT
                                                        PER CURIAM




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