* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 7 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

vs. OMAR CEBALLOS VILLASENOR, Defendant - Appellant. No. 04-4001 (D.C. No. 02-CR-530-JTG) (D. Utah)

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and TYMKOVICH , Circuit Judges. Defendant-Appellant Omar Ceballos Villasenor appeal s from his conviction for conspiracy to possess a precursor chemical withintent to distribute and manufacture a controlled substance, and aiding and abetting, 21 U.S.C. §§ 841(c)(2) and 846 and 18 U.S.C. § 2. He was sentenced to 78 months imprisonment, three years supervised release, and f ined $500. On appeal, Mr. Villasenor contends that the district court abused its discretion in denying the government’s pretrial motion to dismiss his indictm ent. Our jurisdiction arises- 2 -

under 28 U.S.C. § 1291, and we affirm.

Background On September 4, 2002, Mr. Villasenor was indicted, along with codefendants Arturo Romero and Oscar Diaz, on federal charges. Mr. Villasenor and Mr. Diaz initially had been charged in state co urt. United States v. Diaz , 274 F. Supp. 2d 1225, 1227 (D. Utah 2003), rev’d in part sub nom. United States v. Romero , 360 F.3d 1248 (10th Cir. 2004). However, the state charges were dismissed in favor of the federal prosecution. Fol lowing a mistrial in the federal case, Mr. Villasenor was tried a second time and co nvicted. Prior to Mr. Villasenor’s first trial, the governme nt moved to dismiss the indictment against co-defendant Romero, having learned that agents had promised not to federally prosecute Mr. Romero in exchange f or his cooperation. The court reserved its ruling on the motion to dismiss, and M r. Romero subsequently entered a conditional plea of guilty. On May 29, 2003, the government filed a motion to p ermit Mr. Romero to withdraw his guilty plea and to dismiss the case wi thout prejudice. I R. Doc. 81. In so doing, the government moved to dismiss the in dictments against all three co-defendants to permit their prosecution in state court. Id. at 2. The government consulted with Mr. Villasenor’s attorney and surmis ed that the federal court- 3 -

would look more favorably on a motion to dismiss th e charges against all the defendants. II R. at 11. The district court then held a hearing, denying the motion but permitting further briefing. On July 15 , 2003, Mr. Villasenor was convicted in his second trial. On July 22, 2003, the district court held a final h earing on the motions and reaffirmed its prior rulings. Diaz , 274 F. Supp. 2d at 1228. The district court analyzed Mr. Romero’s case under Fed. R. Crim. P. 1 1 and decided that the government’s motions conflicted with the court’s authority to accept or reject plea agreements. Id. at 1232. As to Mr. Romero’s co-defendants (includ ing Mr. Villasenor), the district court relied upon Fed. R. Crim. P. 48(a). Id. at 1232-34. We subsequently reversed Mr. Romero’s conviction. Romero , 360 F.3d at 1254. We held that the district court erred in con sidering Mr. Romero’s motions under Rule 11, and instead should have analyzed the m under Rule 48. Id. at 1253. We did not have occasion to address the district court’s denial of the motion to dismiss the indictment as to Mr. Romero’s co-defendants. We have that occasion now as to Mr. Villasenor.

Discussion We review a district court’s denial of a motion to dismiss under Rule 48(a) for abuse of discretion. Romero , 360 F.3d at 1251. Although Rule 48(a) requires- 4 -

leave of court, we have previously noted the permis sive nature of this standard. Such leave should be granted absent a showing that “dismissal is clearly contrary to manifest public interest.” United States v. Car rigan , 778 F.2d 1454, 1463 (10th Cir. 1985) (internal quotations and citation omitte d). A district court confronted with a motion to dismiss may “consider the public i nterest in the fair administration of criminal justice and the need to preserve the integrity of the courts.” Id. At the outset, we reject Mr. Villasenor’s contentio n that our decision in Romero constitutes stare decisis and is dispositive. Apl t. Br. at 8. The outcome in Romero cannot be divorced from the facts of Mr. Romero’s case. Specifically, the government had entered into an agreement with M r. Romero, errantly indicted him, and then sought to remedy its own error. Rome ro , 360 F.3d at 1250-51. Although the motion to dismiss was inartfully prese nted, the district court erred in analyzing it under Rule 11. Id. at 1252. Analyzed under Rule 48(a), we held that the district court abused its discretion because di smissal was not clearly contrary to the public interest. Id. at 1253. We specifically noted that “requiring th e government to uphold the agreements into which it e nters is a matter of great public interest, particularly where the government admits error and attempts to rectify it by filing a motion to dismiss.” Id. Romero ’s factual predicate is not present here. The dist rict court analyzed1 Mr. Villasenor argues that the government is preclu ded from asserting that

the motion to dismiss was contrary to public intere st by the invited error doctrine. “The invited error doctrine prevents a party from i nducing action by a court and later seeking reversal on the ground that the reque sted action was in error.” United States v. Edward J. , 224 F.3d 1216, 1222 (10th Cir. 2002) (internal quotations and citation omitted). The doctrine is inapplicable where, as here, the party against whom the doctrine is invoked failed t o secure action in the first instance. In other words, had the government argue d successfullyfor dismissal, it would then be precluded from arguing that the dismi ssal was in error. - 5 - the motion to dismiss as to Mr. Villasenor under Ru le 48(a). Diaz , 274 F. Supp. 2d at 1232-34. After considering the facts, we can not say that the district court abused its discretion. After arranging for the state charges to be dropped and federal charges pursued by way of an indictment, th e prosecutor’s effort to drop the federal charges (to leverage his motion with re spect to dropping the charges against a co-defendant) seems excessive. The publi c has a legitimate interest in protecting the integrity of the judicial process an d ensuring the prompt and fair administration of justice. Carrigan , 778 F.2d at 1463. On these facts, the district court did not abuse its discretion in finding that the motion to dismiss was “clearly contrary to manifest public interest.” 1 AFFIRMED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge