                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1524
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Terrell E. Lewis

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 14, 2016
                              Filed: January 4, 2017
                                  ____________

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
                              ____________

RILEY, Chief Judge.

      Terrell E. Lewis seeks to appeal the district court’s1 order denying his motion
to dismiss an indictment charging him with three counts of Hobbs Act robberies, in


      1
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable
Robert E. Larsen, United States Magistrate Judge.
violation of 18 U.S.C. § 1951, and one count of aiding and abetting the use of a
firearm during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A); see also id. § 2 (accomplice liability). These four counts were
originally brought against Lewis in a 2010 indictment, but were dismissed as part of
a plea agreement in which Lewis agreed to cooperate with law enforcement. Lewis
asserts the new indictment is barred by double jeopardy and collateral estoppel and
by the terms of the plea agreement. We dismiss Lewis’s interlocutory appeal for lack
of jurisdiction.

I.    BACKGROUND
      On December 7, 2010, Lewis was indicted and charged with three Hobbs Act
robberies and three counts of using a firearm in connection with a crime of violence.
On April 18, 2012, Lewis pled guilty to two of the firearms counts pursuant to a plea
agreement. In the confidential supplement to the plea agreement, Lewis agreed:

      f.     I understand that my cooperation shall be provided to any local,
      state, and federal law enforcement agency deemed appropriate by the
      United States and that I may be called upon as a witness by any
      authority that has been provided my cooperation.
      g.     I agree and understand that this cooperation agreement requires
      that my cooperation continues even after the time I am sentenced.
      Failure to continue to cooperate after a sentence is imposed constitutes
      a basis to void this agreement by the United States and will allow the
      Government to re-institute charges that were previously dismissed
      pursuant to this agreement[.]

       In September 2012, the district court sentenced Lewis. Pursuant to a motion
for a downward departure filed by the government, Lewis’s consecutive sentences on
the two firearms counts were reduced from 384 months to 144 months. The other
four counts of the 2010 indictment were dismissed.



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       In approximately late August 2013, a Missouri state prosecutor determined
Lewis’s testimony was necessary for a state murder prosecution. When the
prosecutor called Lewis to her office to prepare him for his pretrial deposition, Lewis
refused to talk to the prosecutor. At the government’s request, Lewis’s federal public
defender visited Lewis in jail and reviewed the implications of Lewis’s refusal to
testify in the state murder prosecution, including that the United States could move
to re-sentence him or re-indict him on the four counts previously dismissed pursuant
to the plea agreement. Lewis continued his refusal to cooperate, and the state
dismissed the murder prosecution in December.

       As a result of Lewis’s refusal to cooperate in the state murder prosecution, the
government considered Lewis had breached his plea agreement. A federal grand jury
indicted Lewis, charging him with the original three Hobbs Act robberies and the one
firearms count that had been dismissed pursuant to the plea agreement from the 2010
indictment.

      Lewis moved to dismiss the instant indictment, arguing he had performed all
that was required of him in the previous federal case and this indictment was barred
by double jeopardy. The government filed a response contending Lewis breached the
plea agreement by refusing to testify in the state murder prosecution.

      In January 2016, a United States magistrate judge heard evidence on Lewis’s
motion to dismiss. The magistrate judge recommended that Lewis’s motion to
dismiss the indictment be denied because:

      (1) [Lewis] knew at the time of his guilty plea and at the time of his
      sentencing that he was required to continue cooperating with the State
      including testifying [in the state murder prosecution], regardless of when
      that trial took place, (2) [Lewis]’s refusal to cooperate and testify [in the
      state case] constituted a breach of the plea agreement, (3) the
      government was entitled to re-indict [Lewis] on the four previously

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      dismissed charges, and (4) [Lewis]’s Constitutional rights were not
      violated when he entered a plea agreement without the benefit of a grant
      of immunity from the State of Missouri.

       Lewis filed objections to the magistrate’s report and recommendation. The
district court adopted the report and recommendation and denied Lewis’s motion to
dismiss the indictment. Lewis filed this interlocutory appeal.

II.    DISCUSSION
       Lewis first argues the indictment should be dismissed because it is barred as
a matter of double jeopardy and collateral estoppel. “We have jurisdiction to review
a pretrial order denying a defendant’s motion to dismiss an indictment on double
jeopardy and collateral estoppel grounds where the defendant has raised a colorable
claim.” United States v. Howe, 590 F.3d 552, 555 (8th Cir. 2009). We review a
district court’s denial of a motion to dismiss an indictment de novo. See id.

       “The Double Jeopardy Clause of the Fifth Amendment . . . bars a second
prosecution for the same offense or a lesser included offense.” United States v.
Bailey, 34 F.3d 683, 687 (8th Cir. 1994), abrogated in part by United States v.
Gaudin, 515 U.S. 506, 523 (1995). “Where the record clearly shows that jeopardy
had not attached when the first indictment was dismissed, the defendant has failed to
state a colorable double jeopardy claim.” Id. Double jeopardy “does not come into
play until a proceeding begins before a trier having jurisdiction to try the question of
the guilt or innocence of the accused.” Serfass v. United States, 420 U.S. 377, 391
(1975) (omitting internal citation). This court has held that “[j]eopardy attaches to
a prosecution when the jury is empaneled and sworn or, in a nonjury case, when the
court begins to hear evidence.” Bailey, 34 F.3d at 687.

     The four counts in the 2010 indictment were dismissed before a jury was
empaneled. Jeopardy did not attach during any of the pretrial proceedings. See


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United States v. Lasater, 535 F.2d 1041, 1047 (8th Cir. 1976) (holding jeopardy had
not attached because the district court was without power to enter a judgment of
conviction in a pretrial proceeding), abrogated in part by Gaudin, 515 U.S. at 523.
Lewis has failed to present a colorable double jeopardy claim.

       For these same reasons, Lewis has failed to present a colorable claim for
collateral estoppel. “Collateral estoppel ‘precludes the Government from relitigating
any issue that was necessarily decided by a jury’s acquittal in a prior trial.’” Howe,
590 F.3d at 556 (quoting Yeager v. United States, 557 U.S. 110, 119 (2009)). Here,
the four counts in the 2010 indictment were dismissed before a jury was empaneled;
therefore, there is no prior jury acquittal that prevents the government from litigating
those charges.

       Lewis also asserts the indictment should be dismissed because he fully
performed his obligations under the 2012 plea agreement and his right to due process
under the Fifth Amendment was violated when the government prosecuted charges
that were previously dismissed. See Mabry v. Johnson, 467 U.S. 504, 509 (1984)
(explaining a plea can be challenged under the Due Process Clause if the defendant
was not fairly apprised of the consequences of his plea), abrogated in part by Puckett
v. United States, 556 U.S. 129, 138 n.1 (2009). We are also without jurisdiction to
hear an interlocutory appeal from a pretrial order denying a motion to dismiss an
indictment based upon an alleged breach of a plea agreement. See United States v.
Ecker, 232 F.3d 348, 350 (2d Cir. 2000) (“[A]n order denying a motion to dismiss on
the ground of an allegedly breached plea agreement is not appealable prior to the
entry of final judgment.”); United States v. Ledon, 49 F.3d 457, 459-60 (8th Cir.
1995) (“[An] order denying [a] motion to dismiss for breach of [a] plea agreement is
not final or appealable.”). Claims in a motion to dismiss other than double jeopardy
claims are appealable “‘if, and only if, they . . . fall within Cohen’s collateral-order
exception to the final-judgment rule.’” Bailey, 34 F.3d at 689 (quoting Abney v.



                                          -5-
United States, 431 U.S. 651, 663 (1977)); see also Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 545-47 (1949).

       In Bailey, we considered whether an order denying dismissal of an indictment
based on a plea agreement fell within Cohen’s collateral order exception to the rule
of finality. See Bailey, 34 F.3d at 690. Under Cohen, the collateral order exception
applies, and a pretrial order is immediately appealable, “if (1) the order conclusively
determines the disputed question, (2) it resolves an important issue separate from the
merits of the action, and (3) it [is] effectively unreviewable on appeal from a final
judgment.” Id. at 689 (internal citations omitted). We determined an appeal from a
denial of a motion to dismiss an indictment based upon an alleged plea agreement did
not meet the third Cohen factor because that type of claim can be reviewed on an
appeal from final judgment. See id. at 691 (“[T]he availability of dismissal after final
judgment will adequately protect and secure for the defendant the benefit of his
bargain under the [plea] agreement if he is entitled to it.”). Without a final judgment,
we lack jurisdiction to hear the merits of whether the government violated the plea
agreement between Lewis and the United States.

III.   CONCLUSION
       We dismiss this appeal for lack of jurisdiction.
                       ______________________________




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