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United States v. Lewis

United States Court of Appeals, Eighth Circuit

January 4, 2017

United States of America Plaintiff- Appellee
v.
Terrell E. Lewis Defendant-Appellant

          Submitted: November 14, 2016

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

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

          RILEY, Chief Judge.

         Terrell E. Lewis seeks to appeal the district court's[1] order denying his motion to dismiss an indictment charging him with three counts of Hobbs Act robberies, in 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.

          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 ...


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