United States v. Lucas

• Decision Date: 08 November 2016
• Docket Number: No. 15–10103,15–10103
• Citation: 841 F.3d 796
• Parties: United States of America, Plaintiff–Appellee, v. Joshua Lucas, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

841 F.3d 796

United States of America, Plaintiff–Appellee,

v.Joshua Lucas, Defendant–Appellant.

No. 15–10103

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 2016, San Francisco, California

Filed November 8, 2016

Daniel Blank (argued), Assistant Federal Public Defender; Carmen A. Smarandoiu, Research and Writing Attorney; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant–Appellant.

Anne M. Voigts (argued), Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian J. Stretch, Acting United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff–Appellee.

Before: M. Margaret McKeown, Kim McLane Wardlaw, and Richard C. Tallman, Circuit Judges.

OPINION

TALLMAN

, Circuit Judge:

Joshua Lucas appeals his federal conviction for being a felon in possession of a firearm and ammunition after his earlier California conviction for the same conduct. His appeal turns on a discovery issue: whether the district court erred by denying his motion to compel information he contends will support a motion to dismiss the federal indictment under the Double Jeopardy Clause of the United States Constitution. See Petite v. United States , 361 U.S. 529, 530–31, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960)

; Abbate v. United States , 359 U.S. 187, 189–96, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). Because Lucas failed to either make the requisite showing of materiality under Federal Rule of Criminal Procedure 16 or adequately challenge the government's representation that it does not have any Brady material, we affirm.

I

On October 15, 2013, two Bay Area Rapid Transit (“BART”) police officers saw Lucas and two others evade the fare to ride a BART train at the Powell Street Station in San Francisco, California. One of the officers approached Lucas, who admitted he did not have a BART ticket. When the officer turned to speak to the second officer, Lucas started to run. The officers chased after him and warned him that he would be tased if he did not stop. Lucas kept running. One of the officers then activated his taser, striking Lucas in the back. As Lucas fell to the ground, a Taurus PT738 .380–caliber handgun fell out of his shorts. The pistol, the officers discovered, was loaded with four rounds of .380–caliber Hornady ammunition¹ and two rounds of 7.65–millimeter ammunition. During the incidental search of Lucas following his arrest, officers found a second handgun—a stolen Colt firearm—loaded with one round of .380–caliber Hornady ammunition, five rounds of .32–caliber PAC ammunition, and one round of 7.65–millimeter ammunition. Subsequent investigation established that both firearms and the ammunition had previously traveled in interstate commerce.

California state authorities charged Lucas by information with being a felon in possession of a firearm in violation of California Penal Code section 29800

. Lucas pleaded guilty to this charge on October 31, 2013. On December 9, 2013, he was given a two-year suspended sentence, one year in county jail, and three years of probation. Because he had earned good-time credits and credit for time served, Lucas was set for release from state custody on April 15, 2014.

On April 3, 2014, a federal grand jury returned a one-count indictment against Lucas, charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

. The federal charge was based on the same October 15, 2013 BART incident for which Lucas had been prosecuted and punished in state court. On April 14, 2014, the district court issued a writ of habeas corpus ad prosequendum directing state authorities to bring Lucas before the district court to face his federal criminal charge. On April 16, 2014, Lucas completed his state sentence and was taken directly from state custody to the district court for an initial appearance on his federal charge.²

II

After Lucas was federally charged, his defense counsel asked the federal prosecutor whether she had obtained a waiver of the government's Petite

policy, which generally precludes a successive federal prosecution after a state prosecution based on the same conduct unless (1) the case involves a substantial federal interest; (2) the prior prosecution left that substantial federal interest unvindicated; (3) the defendant's conduct constitutes a criminal offense and the government believes sufficient evidence exists to sustain a conviction; and (4) the subsequent prosecution has been approved by the appropriate Assistant Attorney General. See U.S. Attorneys' Manual § 9–2.031 (1997) (“Petite policy”).³ The prosecutor replied that she had obtained a Petite waiver and that the substantial federal interest was two-fold: the incident had taken place in a BART station, and Lucas had not received an adequate state sentence.

Lucas's defense counsel later sent the prosecutor a discovery request, seeking information that he hoped would demonstrate that federal and state authorities had colluded in prosecuting Lucas in violation of the Double Jeopardy Clause of the Fifth Amendment. Citing Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

, defense counsel specifically requested:

any and all information regarding the coordination of firearm investigations and prosecutions between the federal government here in the Northern District of California and state law enforcement authorities in the City and County of San Francisco, California, for the past 10 years and particularly in the instant case of Joshua Lucas.

The prosecutor refused to provide the information, asserting that neither Federal Rule of Criminal Procedure 16

nor Brady authorized counsel's request. She further contended that Rule 16 expressly barred the disclosure of internal memoranda and reports between the various authorities.

Lucas then moved to compel the production of five categories of evidence:

• Any formal policy or memorandum of understanding between the U.S. Attorney's Office and the San Francisco District Attorney's Office, Sheriff's Department or Police Department regarding coordination in the investigation or prosecution of firearm cases, including the “Trigger Lock” program, that may have played a role in the successive charging of Mr. Lucas in this case....

• All letters, emails, memoranda or other existing documentation regarding any informal agreement, understanding or practice of coordination between the U.S. Attorney's Office and the San Francisco District Attorney's Office, Sheriff's Department or Police Department in the investigation or prosecution of firearm cases that may have played a role in the successive charging of Mr. Lucas in this case....

• Any state/federal cross-designation⁴ of law enforcement officials involved in firearms cases in San Francisco, that may have played a role in the successive charging of Mr. Lucas in this case....

• All letters, emails, memoranda or other existing documentation showing the point at which federal authorities became aware of the state prosecution against Mr. Lucas and what communications occurred between federal and state authorities, when they occurred and who initiated them....

• Any record of the claimed Petite

waiver in Mr. Lucas's case, including when it was obtained.

A

The district court referred the motion to United States Magistrate Judge Laurel Beeler, who denied it after a hearing. In her written order, Judge Beeler concluded that Lucas had failed to make a preliminary showing of inter-sovereign collusion to obtain discovery under Federal Rule of Criminal Procedure 16

, as required by United States v. Zone , 403 F.3d 1101 (9th Cir. 2005).⁵ Judge Beeler also found that the first three categories of evidence Lucas sought would establish only cooperation and could not establish collusion. She further rejected Lucas's argument that he was entitled to the requested evidence under Brady and noted in her written order that the government had represented that no Brady material existed. Lucas timely objected to the magistrate judge's ruling.

B

District Judge Edward Chen then held a hearing on Lucas's objections. At the hearing, Lucas's counsel acknowledged that he had to make “some kind of threshold showing” to obtain the requested discovery. He contended, however, that he had made the required showing. His proffer included a 2005 news article on federal “intervention” into state firearm prosecutions, which described San Francisco's initiative to lower gun violence by referring convicted felons who were caught with guns to the U.S. Attorney's Office for prosecution under federal “Trigger Lock” laws that provided for extended sentences. See Jaxon Van Derbeken, ‘Trigger Lock’ Law Helps Cut Gang–Related Killings in Half , SFGATE (July 21, 2005, 4:00 AM) (“Trigger Lock ”), http://www.sfgate.com/bayarea/article/SAN–FRANCISCO–Trigger–Lock–law–helps–cut–2621421.php.

Lucas also presented an affidavit attesting to the unique circumstances of his case and highlighting the fact that he was taken from state custody directly to federal court upon completing his state sentence. The prosecutor represented at the hearing that no state district attorney or law enforcement officer had been cross-designated in this matter. This representation was responsive to Lucas's request for information about whether officers involved in the federal and state prosecutions were cross-designated. The prosecutor reported at the hearing that the case agent in Lucas's federal case was an FBI agent.

Judge Chen overruled Lucas's objections at the hearing and later in a written order, concluding that Lucas had failed to make a preliminary showing of inter-sovereign collusion under Rule 16

as required under Zone. The district court rejected Lucas's claim that he was entitled to discovery under Brady, finding that Lucas had not shown a “substantial basis for claiming materiality exists” to justify his discovery requests under Brady. The court...