United States of America, Plaintiff-appellee, v. Jesus Leyva-villalobos, Defendant-appellant, 872 F.2d 335 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 335 (9th Cir. 1989) Submitted April 7, 1989. Decided April 24, 1989

Appeal from the United States District Court for the Southern District of California; J. Lawrence Irving, District Judge, Presiding.

Before WALLACE, ALARCON and NORRIS, Circuit Judges.

On January 24, 1989, the district court denied appellant's motion to dismiss the indictment and disqualify the special Assistant United States Attorney, finding that neither Fed. R. Crim. P. 6(d) nor 6(e) had been violated. On January 24, 1989, appellant filed a timely interlocutory appeal under United States v. Benjamin, 812 F.2d 548 (9th Cir.), reh'g and reh'g en banc denied (1987).

On March 28, 1989, the Supreme Court held that an order denying a motion to dismiss an indictment for an alleged violation of Fed. R. Crim. P. 6(e) is not immediately appealable under 28 U.S.C. § 1291. Midland Asphalt Corp. v. United States, --- U.S. ----, 109 S. Ct. 1494, 103 L. Ed. 2d 879. Consequently, this appeal is dismissed for lack of jurisdiction.