Opinion
No. CR-10-01126-13-PHX-GMS
10-31-2012
United States of America Plaintiff, v. Shawn Handell Holloway, et al. Defendants.
ORDER
Pending before the Court is Defendant's Expedited Motion for Extension of Time in Which to File a Notice of Appeal. (Doc. 615.) For the reasons discussed below, Defendant's Motion is granted, and his Notice of Appeal (Doc. 616) is accepted as timely, but the Court determines the appeal is frivolous and retains jurisdiction of the case.
FACTUAL BACKGROUND
Defendant Shawn Holloway is one of 15 defendants in a large drug conspiracy case brought by the United States. On July 5, 2012, Defendant filed a Motion to Dismiss the Superseding Indictment claiming his rights were violated under the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. (Doc. 475.) He contended that he was previously charged in Ohio state court on drug trafficking charges and there was sufficient collusion between the Ohio state authorities and federal officers to place the federal indictment within the Bartkus exception to the dual sovereignty doctrine. (Id.)On September 18, 2012, this Court held a hearing on Defendant's double jeopardy motion. During the hearing, Defendant called a number of federal and state officers to testify about the level of coordination and cooperation between the Ohio and federal authorities. After hearing the testimony, the Court ruled from the bench denying Defendant's Motion to Dismiss without prejudice because he failed to show the level of collusion necessary to support a Bartkus claim. (Doc. 578.) Subsequently, on October 18, 2012, Defendant filed the instant Motion for Extension of Time.
DISCUSSION
I. MOTION FOR EXTENSION
Under Abney v. United States, 431 U.S. 651 (1977), a criminal defendant may appeal a Double Jeopardy ruling before commencement of trial. The Federal Rules of Appellate Procedure provide that "[i]n a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after . . . the entry of either the judgment or the order being appealed." Fed. R. App. P. 4(b)(1)(A). The Court denied the Motion to Dismiss on September 18, 2012, which meant that Defendant had until October 2, 2012 to file his notice of appeal. He failed to do so, and, on October 18, filed the instant Motion for Extension of Time. Rule 4(b)(4) provides that "[u]pon a finding of excusable neglect or good cause, the district court may—before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b)." Defendant requests that the time to file be extended to November 2, 2012, 30 days after the original expiration, and that the Court accept the Notice of Appeal (Doc. 616) filed with his Motion. The government does not oppose, and, upon finding that Defendant's failure to timely file a notice of appeal was due to excusable neglect, the Court grants Defendant's Motion and accepts the Notice of Appeal.
II. DUAL JURISDICTION
While the government has not opposed Defendant's Motion, it requests the Court to declare the appeal to be frivolous and retain jurisdiction of the case to allow trial to proceed. Typically, an appeal strips this Court of jurisdiction. In United States v. LaMere, however, the Ninth Circuit held that "notwithstanding the pendency of an Abney appeal of a district court's denial of a double jeopardy motion, 'if the claim [of double jeopardy] is found to be frivolous [by the district court], the filing of a notice of appeal by the defendant shall not divest the district court of jurisdiction over the case.'" 951 F.2d 1106, 1108 (1991) (internal citation omitted); see also United States v. Powell, 24 F.3d 28, 31 (9th Cir. 1994) ("Even in an Abney-type situation, the divestiture of trial court jurisdiction is not absolute. Rather, we may apply the 'dual jurisdiction' rule which provides that an appeal from the denial of a motion seeking to establish a right not to be tried does not divest the district court of jurisdiction if the district court has found that motion to be frivolous."). An appeal is frivolous if it runs against "clear and long standing case law." LaMere, 951 F.2d at 1109. To retain jurisdiction during the appeal, the district court must set forth in writing its findings on the frivolity of the defendant's appeal. Id.
Defendant relies on the so-called Bartkus exception to the dual sovereignty rule of double jeopardy. Since 1922, courts have recognized that "the United States can punish the same conduct already punished by one of the several states without violating the Double Jeopardy Clause." United States v. Figueroa-Soto, 938 F.2d 1015, 1018 (9th Cir. 1991); see United States v. Lanza, 260 U.S. 377 (1922). In Bartkus v. People of State of Illinois, the Supreme Court—while rejecting a claim of double jeopardy—left the door slightly ajar for a double jeopardy challenge despite the dual sovereignty rule when "the State . . . in bringing its prosecution was merely a tool of the federal authorities, who thereby avoid[] the prohibition of the Fifth Amendment against a retrial of a federal prosecution after an acquittal [or] the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution." 359 U.S. 121, 123-24 (1959). While dicta, this statement has given rise to the Bartkus exception, which the Ninth Circuit has recognized. See United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir. 1987).
Nevertheless, "[a]s a practical matter . . . under the criteria established by Bartkus itself it is extremely difficult and highly unusual to prove that a prosecution by one government is a tool, a sham or a cover for the other government." Figueroa-Soto, 938 F.2d at 1019. The evidence of collusion must be overwhelming. See United States v. Zone, 403 F.3d 1101, 1105 (9th Cir. 2005) (inquiring whether authorities of the other sovereign "so thoroughly dominated the task force that . . . prosecutors exercised no independent volition in the decision to negotiate a . . . plea bargain prior to bringing federal charges"). Importantly, evidence of close coordination and resource-sharing between state and federal authorities is insufficient to establish a Bartkus claim:
In Bartkus the federal government after losing its prosecution colluded closely with the state in securing a conviction. . . . Justice Brennan described what happened in these terms: '[T]he federal effort which failed in the federal courthouse was renewed a second time in the state courthouse across the street.' . . . [T]he same acts may be punished by two sovereigns if they offend the laws of both sovereigns. . . . Double jeopardy is not incurred by such serial prosecutions. As Bartkus makes plain, there may be very close coordination in the prosecutions, in the employment of agents of one sovereign to help the other sovereign in its prosecution, and in the timing of the court proceedings so that the maximum assistance is mutually rendered by the sovereigns. None of this close collaboration amounts to one government being the other's 'tool' or providing a 'sham' or 'cover.' Collaboration between state and federal authorities is 'the conventional practice.' No constitutional barrier exists to this norm of cooperative effort.Figueroa-Soto, 938 F.2d at 1019-20.
Conclusively, then, evidence of cooperation cannot support a Bartkus claim. And indeed, the level of coordination and cooperation between federal and state authorities in Figueroa-Soto and Bartkus was extraordinary. In both cases there was initiation of prosecution by one government at the request of the other, use of federal agents used to assist state prosecution, testimony provided by federal agents at the state prosecution, presence of a federal agent at state prosecutor's table, federal provision of evidence to state prosecutor, the use of federal sentencing power to control state witnesses, and preparation by a federal agent of key state witnesses. See id. at 1019. Yet that level of cross-pollination did not show "that a prosecution by one government is a tool, a sham or a cover for the other government." Id.
In his Motion, Defendant lists the type of evidence he would use to support his Bartkus claim on appeal, all of which—at best—show coordination that falls well short of that present in Figueroa-Soto and Bartkus, much less actual domination. For instance, Defendant cites evidence common to both the state and federal case, such as "[t]he crime to which Mr. Holloway pled [in Ohio] arose out of the same allege conspiracy which has been charged in this case," "[t]he marijuana and cocaine that was seized in the Cleveland case came from [lead defendant in this case]," and "[a]t least one of Holloway's Cleveland co-defendants served as a [confidential source] for information that the Phoenix DEA used for the search warrant." (Doc. 624 at 3-4.) Evidentiary similarities only show that state and federal charges arose out of the same conduct, and it is axiomatic that such similarities do not support a double jeopardy claim under the dual sovereignty rule.
Defendant also describes various levels of coordination between the Ohio and federal authorities, like "Cleveland DEA Agent Lee Lucas worked in the same office as Todd Clarke, the Cleveland Police Detective who drafted search warrants in the Cleveland case," the DEA and Ohio authorities conducted an investigation of the lead defendant in this case at the same time, DEA agents were present when Holloway was arrested, and Ohio authorities "worked very often with Cleveland DEA [agents]." (Id. at 4-6.) These examples, and the evidence presented at the September 18 hearing, show only that there was some overlap between state and federal authorities in the investigation. In fact, Defendant's Motion uses the language of "overlap" and "coordination" to describe the relationship between Ohio state authorities and the DEA. But "[c]ollaboration between state and federal authorities is 'the conventional practice.' No constitutional barrier exists to this norm of cooperative effort." Figueroa-Soto, 938 F.2d at 1019-20. Defendant nevertheless seeks to proceed on a theory that the Bartkus exception applies when there is collaboration and concurrent investigations. Because that theory is clearly foreclosed by Bartkus itself and the Ninth Circuit's application of the exception, the Court determines the appeal is frivolous.
CONCLUSION
Defendant's Motion for Extension is granted and the Notice of Interlocutory Appeal is accepted. This Court, however, retains jurisdiction of this case while Defendant's appeal is pending because the Court has determined that Defendant's appeal is frivolous.
IT IS THEREFORE ORDERED that Defendant's Motion for Extension (Doc. 615) is GRANTED and the Notice of Appeal (Doc. 616) is ACCEPTED as being timely.
IT IS FURTHER ORDERED that this Court maintains jurisdiction of the case throughout Defendant's appeal of the Court's September 18, 2012 Order.
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G. Murray Snow
United States District Judge