United States v. Jose Alfaro ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 10-50276 U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 2:09-cr-00466-R-1
v.
MEMORANDUM*
JOSE ALFARO, AKA Shyboy; et al.,
Defendants - Appellees,
and
EDWIN ARIAS, AKA Enano; et al.,
Defendants,
v.
THE ASSOCIATED PRESS,
Movant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 5, 2011
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
The government appeals the district court’s order conditionally striking
portions of the indictment related to an alleged conspiracy by members and
associates of the Mara Salvatrucha (“MS-13”) gang to murder Los Angeles Police
Department Detective Frank Flores. We reverse.
1. We have jurisdiction pursuant to 18 U.S.C. § 3731 over the government’s
interlocutory appeal of the district court’s pretrial order striking portions of the
indictment. Although the district court’s order is conditional, we have previously
found that § 3731 provides jurisdiction over conditional orders, such as those
suppressing evidence. See, e.g., United States v. Hoffman, 794 F.2d 1429, 1431
n.2 (9th Cir. 1986). Because the jurisdictional scope of § 3731 was broadly
intended to encompass “virtually all adverse rulings in criminal cases,” we may
properly hear this appeal. H.R. Rep. No. 107-685, at 165 (2002) (Conf. Rep.).
2. The district court lacked authority to strike the portions of the RICO
charge involving an alleged conspiracy to murder Detective Flores, should the
government decide to call him as an expert witness on MS-13 at trial. Though we
recognize the district court’s concerns about expert witness testimony elicited from
witnesses in multiple capacities, see United States v. Freeman, 498 F.3d 893,
902–04 (9th Cir. 2007), as an incident of the constitutional separation of powers,
charging decisions are generally the prerogative of the prosecutor. United States v.
Armstrong, 517 U.S. 456, 464 (1996); United States v. Hall, 559 F.2d 1160, 1164
(9th Cir. 1977) (citing United States v. Real, 446 F.2d 40, 41 (9th Cir. 1971));
United States v. Olson, 504 F.2d 1222, 1225 (9th Cir. 1974).
REVERSED.