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The 10th Circuit Court of Appeals has affirmed a federal judge's ruling that a Tongan Crip Gang member may be prosecuted on charges related to the shooting of two deputy U.S. Marshals in August 2007.

Siale Angilau argued the prosecution violated his due process rights and constitutes double jeopardy since prosecutors had dismissed similar charges and then refiled a case against him.

The 10th Circuit declined to rule on the due-process claim since there has not been a final judgment in Angilau's criminal case. But it found that prosecutors allege different criminal elements in the second case filed against Angilau that were not resolved with the dismissal of the first case and he thus can be tried on the charges.

"That the underlying conduct charged in this case is the same as the underlying conduct charged in the first federal case does not affect our conclusion that the two charges state separate offenses" as outlined in a prior decision, the court said. The dismissal resolved "no issue of fact relevant to defendant's guilt," the court said, and thus "imposes no bar to the present prosecution."

Angilau was initially charged in state court, where he pleaded guilty to obstruction of justice and failure to stop at the command of police in connection to the shooting. At that sentencing, a prosecutor and a representative of the U.S. Marshals Service agreed to recommend against federal charges. However, the state judge noted that was merely a recommendation and did not bar filing of federal charges.

Angilau was initially indicted in U.S. District Court on charges related to a July 2007 robbery of a 7-Eleven store, which occurred before the shooting incident.

The government then "changed its mind several times about how to prosecute" Angilau for the marshals' shooting, the 10th Circuit opinion notes. Prosecutors brought a second indictment in September 2008 on assault and firearm charges; in January 2009, they filed a third indictment adding two additional charges. In May 2009, prosecutors asked that two added assault charges be dismissed without prejudice.

At that point, Angilau pleaded guilty to the original robbery charges and prosecutors dismissed the assault and firearm counts.

In May 2010, prosecutors filed a new case with the four counts related to the shooting: one count of racketeering, one count of assaulting a federal officer, one count of assault with a dangerous weapon in aid of racketeering, and one count of using a firearm during a violent crime.

Angilau argued the assault-related charges were barred by double jeopardy since prosecutors previously dismissed the assault and firearm counts. He also argued all charges should be dismissed because the government had violated his due-process rights by repeatedly bringing and dismissing charges against him.

U.S. District Court Judge Tena Campbell granted Angilau's motion to dismiss the initial assault and firearm charges, but said prosecutors could proceed with the racketeering, assault with a dangerous weapon and use of a firearm charges. Angilau filed an appeal in February 2012, just before his trial was set to begin on those counts.

Angilau was among 17 TCG members and associates indicted on racketeering charges in May 2010. Federal prosecutors alleged the gang committed robberies, assaults and shootings to expand its operations; prosecutors said the gang's criminal acts in the Salt Lake Valley spanned two decades and also included murder.

Five defendants took plea deals. Six defendants were convicted in September 2011 following a five-week trial. Two other gang members were acquitted. Charges against two defendants were dismissed in 2012. One other case is still pending.