                                                                 NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 12-1928
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                    BAHADIR YAHSI,
                                                           Appellant


                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. No. 2-11-cr-00353-001)
                       District Judge: Honorable Jose L. Linares


                       Submitted under Third Circuit LAR 34.1(a)
                                   on July 12, 2012

              Before: FUENTES, HARDIMAN and ROTH, Circuit Judges

                                (Opinion filed: July 27, 2012)



                                       OPINION


ROTH, Circuit Judge:

       Bahadir Yahsi appeals from the District Court’s April 3, 2012, order denying his

motion to dismiss the indictment on double jeopardy grounds. For the following reasons,

we will affirm the order of the District Court.
I. Background

       On December 14, 2010, a New Jersey state grand jury returned an indictment

charging Yahsi and 26 other individuals with drug-trafficking offenses, including two

counts alleging that, from February through April 2010, Yahsi conspired with others to

distribute oxycodone (Count 46) and ecstasy (Count 47) in Clifton, New Jersey.

       On January 23, 2012, a federal grand jury sitting in the District of New Jersey

returned a second superseding indictment charging Yahsi with conspiring to distribute

oxycodone and ecstasy from June through October 2010 (Count One), distributing

oxycodone on September 30, 2010 (Count Two), and distributing ecstasy on August 15,

19, and 25, 2010 (Counts Three, Four, and Five) in Passaic County, New Jersey, and

elsewhere.

       On February 27, 2012, Yahsi moved to dismiss the Federal Indictment, claiming

that the State Indictment and the Federal Indictment charged him for the same criminal

conduct, thereby placing him in double jeopardy. At a hearing on March 26, 2012, the

District Court heard argument from both parties. The District Court subsequently denied

the motion by oral ruling on April 2, 2012, and by written order dated April 3, 2012. In

doing so, the District Court noted the lack of significant overlap in locations, time

periods, and co-conspirators.

       Yahsi interlocutorily appealed.1

II. Jurisdiction and Standard of Review


       1
        On April 5, 2012, the District Court stayed the matter, including the jury trial
scheduled for April 4, 2012, pending this appeal.
                                              2
       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. A pre-trial order

denying a motion to dismiss an indictment on double jeopardy grounds falls within the

“collateral order” exception to the final order requirement. United States v. Smith, 82

F.3d 1261, 1265 (3d Cir. 1996). We thus have jurisdiction over this interlocutory appeal

pursuant to 28 U.S.C. § 1291. See Abney v. United States, 431 U.S. 651, 662 (1977).

       We exercise plenary review over claims of double jeopardy. United States v.

Aguilar, 849 F.2d 92, 95 (3d Cir. 1988).

III. Discussion

       The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution guarantees that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” U.S. Const. amend. V. Double jeopardy attaches when it

is “shown that the two offenses charged are in law and in fact the same offense.” United

States v. Felton, 753 F.2d 276, 278 (3d Cir. 1985). A defendant is entitled to a pre-trial

evidentiary hearing if he makes a non-frivolous showing of double jeopardy. United

States v. Liotard, 817 F.2d 1074, 1077 (3d Cir. 1987). Under the totality of the

circumstances test, a conspiracy defendant will make a non-frivolous showing by

demonstrating that:

       (a) the “locus criminis” of the two alleged conspiracies is the same; (b) there is a
       significant degree of temporal overlap between the two conspiracies charged; (c)
       there is an overlap of personnel between the two conspiracies (including
       unindicted as well as indicted coconspirators); and (d) the overt acts charged and
       the role played by the defendant according to the two indictments are similar.

Id. at 1078 (citations omitted). Once a defendant makes this prima facie showing, “the

burden of persuasion shifts to the government to prove by a preponderance of the

                                              3
evidence that the two indictments charge the defendant with legally separate crimes.” Id.

at 1077.

       Yahsi contends that he has made a non-frivolous showing with respect to each of

the Liotard factors. Specifically, he argues that 1) for both conspiracies, the location

should be broadly construed as Passaic County, 2) the conspiracies would be successive

but for a one-month gap, 3) there was an overlap in personnel by someone charged as

Hamzah Mustafa in the state case and referred to as Mustafa LNU in the federal case, and

4) selling oxycodone and ecstasy was the common goal of both conspiracies. We

disagree.

           We find that the defendant has failed to meet his prima facie burden. As the

District Court explained, the charged conspiracies took place in different locations, there

is a one-month gap and thus no temporal overlap between the two conspiracies, there

cannot be significant overlap in personnel because only one potentially overlapping

individual (besides Yahsi himself) has been identified, and the overt acts cannot be the

same since they occurred at different times. The District Court concluded: “In this case,

while there are similar elements underlying each conspiracy, there is no significant

overlap for the defendant to establish his prima facie burden of double jeopardy.” We

agree and will, therefore, affirm the order of the District Court.2

IV. Conclusion

       For the foregoing reasons, we will affirm the order of the District Court.


       2
          Because we find the conspiracies to be separate offenses, we need not address
the issue of dual sovereignty.
                                              4
