Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^** 

Kevin Mark Berger appeals the district court's denial of his motion to dismiss the indictment filed against him in case number 89-360. He claims that the government may not prosecute him in that case without violating the Double Jeopardy Clause or res judicata principles. We reject those contentions and affirm.

Berger was indicted for various federal offenses in 89-394, which later became consolidated with 89-360. A superseding indictment was subsequently filed in 89-360, making Berger a defendant in that case and charging him with, inter alia, the same offenses for which he was indicted in 89-394. The indictment in 89-394 was then dismissed with prejudice. Berger contends that the dismissal in 89-394 should bar the government from prosecuting him in 89-360.

In United States v. Castiglione, 876 F.2d 73, 76 (9th Cir. 1988), cert. denied, 110 S. Ct. 365 (1989), we held that dismissal of the indictment with prejudice does not bar prosecution on identical counts when the superseding indictment is filed before the preceding indictment is dismissed with prejudice. Here, the superseding indictment in 89-360 was filed before the indictment in 89-394 was dismissed. Berger seeks to distinguish Castiglione on the basis that the indictment and superseding indictment in that case were given the same case number. We conclude that this difference does not require a different result.

AFFIRMED.