                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 7 2005
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                        No. 04-4001
 vs.                                             (D.C. No. 02-CR-530-JTG)
                                                         (D. Utah)
 OMAR CEBALLOS VILLASENOR,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.


       Defendant-Appellant Omar Ceballos Villasenor appeals from his conviction

for conspiracy to possess a precursor chemical with intent to distribute and

manufacture a controlled substance, and aiding and abetting, 21 U.S.C.

§§ 841(c)(2) and 846 and 18 U.S.C. § 2. He was sentenced to 78 months

imprisonment, three years supervised release, and fined $500. On appeal, Mr.

Villasenor contends that the district court abused its discretion in denying the

government’s pretrial motion to dismiss his indictment. Our jurisdiction arises


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
under 28 U.S.C. § 1291, and we affirm.



                                        Background

      On September 4, 2002, Mr. Villasenor was indicted, along with co-

defendants Arturo Romero and Oscar Diaz, on federal charges. Mr. Villasenor

and Mr. Diaz initially had been charged in state court. United States v. Diaz, 274

F. Supp. 2d 1225, 1227 (D. Utah 2003), rev’d in part sub nom. United States v.

Romero, 360 F.3d 1248 (10th Cir. 2004). However, the state charges were

dismissed in favor of the federal prosecution. Following a mistrial in the federal

case, Mr. Villasenor was tried a second time and convicted.

      Prior to Mr. Villasenor’s first trial, the government moved to dismiss the

indictment against co-defendant Romero, having learned that agents had promised

not to federally prosecute Mr. Romero in exchange for his cooperation. The court

reserved its ruling on the motion to dismiss, and Mr. Romero subsequently

entered a conditional plea of guilty.

      On May 29, 2003, the government filed a motion to permit Mr. Romero to

withdraw his guilty plea and to dismiss the case without prejudice. I R. Doc. 81.

In so doing, the government moved to dismiss the indictments against all three

co-defendants to permit their prosecution in state court. Id. at 2. The government

consulted with Mr. Villasenor’s attorney and surmised that the federal court


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would look more favorably on a motion to dismiss the charges against all the

defendants. II R. at 11. The district court then held a hearing, denying the

motion but permitting further briefing. On July 15, 2003, Mr. Villasenor was

convicted in his second trial.

      On July 22, 2003, the district court held a final hearing on the motions and

reaffirmed its prior rulings. Diaz, 274 F. Supp. 2d at 1228. The district court

analyzed Mr. Romero’s case under Fed. R. Crim. P. 11 and decided that the

government’s motions conflicted with the court’s authority to accept or reject plea

agreements. Id. at 1232. As to Mr. Romero’s co-defendants (including Mr.

Villasenor), the district court relied upon Fed. R. Crim. P. 48(a). Id. at 1232-34.

      We subsequently reversed Mr. Romero’s conviction. Romero, 360 F.3d at

1254. We held that the district court erred in considering Mr. Romero’s motions

under Rule 11, and instead should have analyzed them under Rule 48. Id. at

1253. We did not have occasion to address the district court’s denial of the

motion to dismiss the indictment as to Mr. Romero’s co-defendants. We have that

occasion now as to Mr. Villasenor.



                                     Discussion

      We review a district court’s denial of a motion to dismiss under Rule 48(a)

for abuse of discretion. Romero, 360 F.3d at 1251. Although Rule 48(a) requires


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leave of court, we have previously noted the permissive nature of this standard.

Such leave should be granted absent a showing that “dismissal is clearly contrary

to manifest public interest.” United States v. Carrigan, 778 F.2d 1454, 1463 (10th

Cir. 1985) (internal quotations and citation omitted). A district court confronted

with a motion to dismiss may “consider the public interest in the fair

administration of criminal justice and the need to preserve the integrity of the

courts.” Id.

      At the outset, we reject Mr. Villasenor’s contention that our decision in

Romero constitutes stare decisis and is dispositive. Aplt. Br. at 8. The outcome

in Romero cannot be divorced from the facts of Mr. Romero’s case. Specifically,

the government had entered into an agreement with Mr. Romero, errantly indicted

him, and then sought to remedy its own error. Romero, 360 F.3d at 1250-51.

Although the motion to dismiss was inartfully presented, the district court erred in

analyzing it under Rule 11. Id. at 1252. Analyzed under Rule 48(a), we held that

the district court abused its discretion because dismissal was not clearly contrary

to the public interest. Id. at 1253. We specifically noted that “requiring the

government to uphold the agreements into which it enters is a matter of great

public interest, particularly where the government admits error and attempts to

rectify it by filing a motion to dismiss.” Id.

      Romero’s factual predicate is not present here. The district court analyzed


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the motion to dismiss as to Mr. Villasenor under Rule 48(a). Diaz, 274 F. Supp.

2d at 1232-34. After considering the facts, we cannot say that the district court

abused its discretion. After arranging for the state charges to be dropped and

federal charges pursued by way of an indictment, the prosecutor’s effort to drop

the federal charges (to leverage his motion with respect to dropping the charges

against a co-defendant) seems excessive. The public has a legitimate interest in

protecting the integrity of the judicial process and ensuring the prompt and fair

administration of justice. Carrigan, 778 F.2d at 1463. On these facts, the district

court did not abuse its discretion in finding that the motion to dismiss was

“clearly contrary to manifest public interest.” 1

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      1
        Mr. Villasenor argues that the government is precluded from asserting that
the motion to dismiss was contrary to public interest by the invited error doctrine.
“The invited error doctrine prevents a party from inducing action by a court and
later seeking reversal on the ground that the requested action was in error.”
United States v. Edward J., 224 F.3d 1216, 1222 (10th Cir. 2002) (internal
quotations and citation omitted). The doctrine is inapplicable where, as here, the
party against whom the doctrine is invoked failed to secure action in the first
instance. In other words, had the government argued successfully for dismissal, it
would then be precluded from arguing that the dismissal was in error.

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