                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 18-50140

                Plaintiff-Appellee,             D.C. No.
                                                5:15-cr-00007-VAP
 v.

JOHN S. ROMERO, aka John Romero, Sr.,           MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                           Submitted August 15, 2019**
                              Pasadena, California

Before: SCHROEDER and GRABER, Circuit Judges, and LEFKOW,*** District
Judge.

      John S. Romero appeals from the district court’s order denying his motion to

dismiss the indictment. Because the denial of a motion to dismiss an indictment on


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
double jeopardy grounds is an appealable final judgment, Abney v. United States,

431 U.S. 651, 662 (1977), we have jurisdiction under 28 U.S.C. § 1291. We lack

jurisdiction, however, over Romero’s res judicata claim and therefore affirm in

part and dismiss in part. We review the district court’s legal conclusions de novo

and its factual findings for clear error. United States v. Lopez-Avila, 678 F.3d 955,

961 (9th Cir. 2012).

      Romero argues that he may not be prosecuted for conduct related to

embezzlement of a union welfare fund because his conduct could have been

charged in an earlier prosecution. The Double Jeopardy Clause prohibits “a second

prosecution for the same offense after conviction.” United States v. Brooklier, 637

F.2d 620, 621 (9th Cir. 1981). With narrow exceptions inapplicable here, “an

‘offence’ for double jeopardy purposes is defined by statutory elements, not by

what might be described in a looser sense as a unit of criminal conduct.” Gamble v.

United States, 139 S. Ct. 1960, 1980 (2019) (citing Blockburger v. United States,

284 U.S. 299 (1932)). The government may therefore charge offenses in separate

prosecutions if “[e]ach of the offenses created requires proof of a different

element.” Blockburger, 284 U.S. at 304; Brooklier, 637 F.2d at 623–24 (holding

Blockburger applies to successive prosecutions); see also Witte v. United States,

515 U.S. 389, 397–98 (1995) (holding that a crime passing the Blockburger test

may be charged successively even if considered at sentencing in earlier


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prosecution).

      Romero’s first indictment charged three counts of making materially false

statements by understating a particular union’s assets in three annual reports to the

Department of Labor. The second indictment charged Romero with conspiracy,

embezzlement of funds from a union welfare plan, and making a false statement.

The time frame of the two indictments overlapped, and the government was aware

of some of Romero’s activity underlying the second indictment at the time it

charged the first. Although the pending false-statements charge requires proof of

the same elements as the earlier ones, the indictment permissibly charges Romero

with making a false statement that was not charged in the first indictment. Each

false statement is a separate offense, as is illustrated by the first indictment alleging

three distinct false statements. See, e.g., Blockburger, 284 U.S. at 301 (finding no

double jeopardy violation where the government charged the defendant separately

for two sales to the same purchaser on successive days).

      Double jeopardy may not be invoked for any of the other charges against

Romero because conspiracy and embezzlement require proof of different elements

from those required for making a false statement. Compare 18 U.S.C. § 669

(elements of health care embezzlement are (1) knowingly and willfully (2)

embezzling, stealing, or converting (3) money, funds, or other assets (4) of a health

care benefit program), and United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir.


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2016) (“To prove a conspiracy under 18 U.S.C. § 371, the government must

establish three elements: ‘(1) an agreement to engage in criminal activity, (2) one

or more overt acts taken to implement the agreement, and (3) the requisite intent to

commit the substantive crime.’” (citation omitted)), with United States v. Camper,

384 F.3d 1073, 1075 (9th Cir. 2004) (holding that a false-statement charge has five

elements: “(1) a statement, (2) falsity, (3) materiality, (4) specific intent, and (5)

agency jurisdiction”).

      We dismiss for want of jurisdiction Romero’s claim that res judicata bars

his pending prosecution. In an interlocutory appeal, we lack jurisdiction over issues

that cannot themselves be immediately appealed. United States v. Bendis, 681 F.2d

561, 569 (9th Cir. 1982). Although a double jeopardy claim based on issue

preclusion is immediately appealable, see United States v. Cejas, 817 F.2d 595,

596 (9th Cir. 1987), an ordinary claim of res judicata is not. Will v. Hallock, 546

U.S. 345, 355 (2006) (citing Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.

863, 873 (1994)). Because Romero concedes that his res judicata claim does not

arise under the Double Jeopardy Clause, he cannot raise it on interlocutory appeal.

      AFFIRMED in part, DISMISSED in part.




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