United States v. David Gene Lewis

David Gene Lewis, a former California correctional officer, appeals the district court’s denial of his motion to dismiss the indictment. Lewis raises two issues. First, can Lewis seek interlocutory review of the district court’s denial of his “fair warning” defense? Second, did the prosecution’s alleged Brady violations raise double jeopardy concerns? We answer both questions in the negative.

Background

This matter springs from an incident on June 20, 1994, when Lewis, then a correctional officer at Pelican Bay State Prison, shot and seriously wounded an inmate, Harry Long, during a prison-yard disturbance. Five years after the shooting, a federal grand jury charged Lewis with violating 18 U.S.C. § 242 , Deprivation of Rights Under Color of Law, and 18 U.S.C. § 924 (c), Use of a Firearm in Relation to a Crime of Violence. One year after the indictment, the Government tried Lewis, and a jury convicted him of both counts.

In January 2002, in an unpublished disposition, we reversed Lewis’s convictions and remanded for a new trial. In reversing, we held that the district court had committed error by excluding from trial a Shooting Review Board Report. At a status hearing after…