U.S. v. Flores-Perez, No. 10-50246 (June 21, 2011) (Mills, D.J., with Wallace and Graber).
This is a double jeopardy issue. The defendant faced a transporting aliens charged. There was a mistrial, with the jury hanging 9 to 3 to acquit. The court had denied the defendant's Rule 29 motions. In the meantime, the government superseded with a four-count indictment, alleging the same offense and adding conspiracy, attempt, and bringing in for financial gain. The defendant appealed, arguing double jeopardy because the court should have granted his Rule 29 motions. The 9th dismisses for want of jurisdiction. The 9th first held that it lacks jurisdiction to consider the double jeopardy claim. The Supreme Court's decision in Richardson v. U.S., 408 US 317 (1984) controls. Second, because the mistrial meant that there was no termination of the original charge, the superseding indictment is just that: superseding the still original charge. It does not create a colorable double jeopardy claim nor does it end the original jeopardy.