US v. Shelby, No. 10-20148, involved the government's motion to dismiss defendant's appeal from the denial of his motion to dismiss, on double jeopardy grounds, a superseding indictment for insider trading and related charges. The court of appeals granted the motion, holding that 1) even if the district court and the court of appeals did not adhere, in a companion case, to the "points in controversy" test that defendant urged, there was no basis to conclude that the companion case created an intervening change or "correction" in the applicable law; and 2) the district court's and the court of appeals' conclusions as to certain Summer 2000 acquitted counts did not depend on any reference to certain Early 2000 hung counts.
As the court wrote: "The defendant, Rex T. Shelby, filed a pretrial appeal from an order by the district court that denied his motion to dismiss, on double jeopardy grounds, a Seventh Superseding Indictment filed against him on November 9, 2005. Presently before this court is the Government's motion to dismiss Shelby's appeal. The Government contends that we lack subject-matter jurisdiction over the appeal because Shelby's double jeopardy claims are "not colorable" and "frivolous." For the reasons discussed below, we agree and dismiss the appeal."
- Full Text of US v. Shelby, No. 10-20148