United States v. Kevin Joseph McKinley Seamus Moley

38 F.3d 428 UNITED STATES of America, Plaintiff-Appellee, v. Kevin Joseph McKINLEY; Seamus Moley, Defendants-Appellants. No. 93-10754. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 14, 1994. Decided Oct. 3, 1994. David Taylor Shannon, Asst. Federal Public Defender, Tucson, AZ, for defendant-appellant Kevin Joseph McKinley. D. Jesse Smith, Tucson, AZ, for defendant-appellant Seamus Moley. Robert L. Miskell, Asst. U.S. Atty., Tucson, AZ, and Sean Connelly, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: HUG, SCHROEDER, and FERNANDEZ, Circuit Judges. FERNANDEZ, Circuit Judge: 1 Kevin McKinley and Seamus Moley appeal the district court's order denying their motions to dismiss the indictment brought against them in Arizona. They assert that the indictment subjects them to double jeopardy and that it is vindictive. In it the grand jury has charged them with placing explosive materials in a motor vehicle employed in interstate commerce ( 18 U.S.C. Sec. 33 ); shipping explosive materials in interstate commerce without a permit ( 18 U.S.C. Secs. 842 (a)(3)(A),…

Kevin McKinley and Seamus Moley appeal the district court’s order denying their motions to dismiss the indictment brought against them in Arizona. They assert that the indictment subjects them to double jeopardy and that it is vindictive. In it the grand jury has charged them with placing explosive materials in a motor vehicle employed in *429 interstate commerce ( 18 U.S.C. § 33 ); shipping explosive materials in interstate commerce without a permit ( 18 U.S.C. §§ 842 (a)(3)(A), 844(a)); transporting explosive materials in interstate commerce with the knowledge and intent that they would be used to kill or injure members of the United Kingdom’s military ( 18 U.S.C. § 844 (d)); knowingly and willfully possessing detonators in aid of the Irish Republican Army for use against the United Kingdom ( 18 U.S.C. § 957 ); and receipt of explosives by a felon ( 18 U.S.C. §§ 842 (f)(1) and 844(a)).

We determine that we and the district court lack jurisdiction over the double jeopardy claim because it is not ripe for review and that we have no jurisdiction to review the vindictive prosecution claim on interlocutory appeal.

BACKGROUND

According to the charges against them in the District of…

dissenting in part:

I agree with the majority that we lack jurisdiction to review appellants’ interlocutory claim of vindictive prosecution. The majority’s holding that the appellants’ double jeopardy claim is unripe presents quite a different matter.

Appellants’ position is that because the shipping of detonators with which they are charged in this prosecution was taken into account as relevant conduct in their prior Florida sentences, double jeopardy principles foreclose this prosecution, as well as any conviction or punishment that might follow from it. That claim is ripe. A claim of possible double jeopardy must be decided before the second trial. See Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034, 2041 , 52 L.Ed.2d 651 (1977). The government does not even challenge ripeness.

The majority overlooks the critical point that appellants have served their Florida sentences. The majority may be confused by the fact that on appeal, the Eleventh Circuit vacated appellants’ Florida sentences and remanded for specific findings concerning the conduct that supported those sentences. See *432 United States v. McKinley, 995 F.2d 1020 (11th Cir.1993), cert. denied, — U.S. — and…