U.S. v. Angleton

• Citation: 314 F.3d 767
• Decision Date: 12 December 2002
• Docket Number: No. 02-20887.,02-20887.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Nicholas ANGLETON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

314 F.3d 767

UNITED STATES of America, Plaintiff-Appellee, v. Robert Nicholas ANGLETON, Defendant-Appellant.

No. 02-20887.

United States Court of Appeals, Fifth Circuit.

December 12, 2002.

COPYRIGHT MATERIAL OMITTED

Katherine L. Haden (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Samuel J. Buffone (argued), Robert John Koracev, Ropes & Gray, Washington, DC, Michael Wayne Ramsey, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robert Angleton was acquitted, in state court, of the murder of his wife. A federal grand jury then indicted him for the same murder. Angleton appeals, on grounds of double jeopardy, the denial of his motion to dismiss the indictment. Concluding that the dual sovereignty doctrine permits a successive prosecution, we affirm.

I.

In April 1997, Doris Angleton was shot to death in her Houston home. At the time, she was seeking a divorce from her husband, Robert Angleton, a local bookmaker and police informant.

An investigation led police to suspect that Roger Angleton, Robert's brother, was involved. Police developed evidence showing that shortly before the murder, Roger had traveled from his home in San Diego, California, to Houston, where he used various aliases to register in different hotel rooms and rent two cars. A few days after the murder, he abandoned a suitcase containing two guns at an airport security checkpoint. He was arrested in Las Vegas, Nevada, on unrelated California warrants.

Both brothers were held on suspicion of the murder, and in October 1997 a Texas grand jury returned separate indictments against the two for capital murder. The indictments alleged that Robert had promised to pay Roger money in exchange for Doris's murder. While awaiting trial in jail, Roger committed suicide, leaving behind a handwritten note professing that he alone was responsible for the murder.

A state petit jury acquitted Robert Angleton of capital murder. Six months later, FBI agents began investigating him for separate offenses stemming from his bookmaking activities, including tax evasion. The Harris County District Attorney's Office then contacted the United States Attorney's Office, requesting that it expand the investigation to include Doris's murder.

A joint task force of FBI agents and Houston Police Department ("HPD") officers was formed to investigate the murder. The task force received all the information and evidence previously gathered for the state prosecution. The three lead HPD investigators were deputized as United States Marshals, still on the city payroll, so they would have access to files. The two assistant district attorneys who prosecuted Angleton in the state trial also assisted the task force. As part of the investigation, FBI agents interviewed members of the jury that had acquitted Angleton.¹

In January 2002, a federal grand jury indicted Angleton on three counts. In counts 1 and 2, the indictment charges Angleton with murder for hire and conspiracy to commit murder for hire, both in violation of 18 U.S.C. § 1958(a), which prohibits interstate travel or the use of instrumentalities of interstate commerce "with intent that a murder be committed in violation of the laws of any State" in exchange for consideration. Count 3 charges Angleton with using a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).

After an evidentiary hearing, the district court found Angleton unable to establish a prima facie case of double jeopardy and denied his motion to dismiss the indictment. United States v. Angleton, 221 F.Supp.2d 696 (S.D.Tex.2002). After determining, however, that Angleton's arguments are not frivolous, the court stayed its proceeding pending the outcome of this interlocutory appeal. We have jurisdiction over an appeal, on nonfrivolous grounds of double jeopardy, of an order denying a motion to dismiss an indictment. Abney v. United States, 431 U.S. 651, 657-62, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

II.

No person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. AMEND. V. Double jeopardy concerns are implicated where a defendant is retried for the same offense following acquittal. Illinois v. Vitale, 447 U.S. 410, 413-15, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Determining whether two offenses are the same offense for purposes of the Double Jeopardy Clause focuses on their statutory elements. We need not decide, however, whether the federal prosecution of Angleton constitutes double jeopardy, because we conclude that no exception to the dual sovereignty doctrine applies to this case in such a way as to call the federal indictment into question.²

III.

The dual sovereignty doctrine permits the United States to "prosecute a defendant after an unsuccessful state prosecution based on the same conduct, even if the elements of the state and federal offenses are identical."³ Angleton nevertheless argues that the dual sovereignty doctrine "relies on a rigid adherence to a premise that is no longer tenable: that state and federal prosecutors always pursue different interests as separate and distinct sovereigns." He contends that the rise of cooperative federalism and the incorporation of the Double Jeopardy Clause through the Fourteenth Amendment have eroded the foundations of the dual sovereignty doctrine.

A.

The dual sovereignty doctrine derives from the common law notion that a crime is an offense against the sovereign.⁴ "When a defendant in a single act violates the `peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct `offenses.'" Heath, 474 U.S. at 87, 106 S.Ct. 433. As a sovereign,⁵ the United States "has the right to decide that a state prosecution has not vindicated a violation of the `peace and dignity' of the federal government." Id. at 93, 106 S.Ct. 433. The dual sovereignty doctrine is best understood, then, not as an exception to double jeopardy, but rather as a manifestation of the maxim that where a defendant violates the laws of two sovereigns, he commits separate offenses.⁶

The Supreme Court directly embraced the doctrine for the first time in United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314, recognizing that "in determining what shall be an offense against its peace and dignity [, each sovereign] is exercising its own sovereignty, not that of the other." Id. at 382, 43 S.Ct. 141. Before Lanza was decided, several nineteenth century opinions illustrated that even before the rise of modern "cooperative federalism," Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), there was concurrent regulation.⁷ Until Lanza, however, the Court was faced only with threats of successive state-federal prosecutions.

Two 1959 Supreme Court decisions bolstered Lanza and helped shape the modern view of the dual sovereignty doctrine as a mainstay of federalism. In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), the Court decided that a successive state robbery prosecution following an acquittal under the federal robbery statute did not deny due process. Key to the decision was the inapplicability of the Fifth Amendment to the states, id. at 123-29, 79 S.Ct. 676, a point reiterated in another decision decided the same day, Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).⁸

In Heath,⁹ 474 U.S. at 88, 106 S.Ct. 433, the Court recognized that in assessing the validity of the dual sovereignty doctrine, the "crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns." Where the dual sovereignty doctrine has been found inapplicable, it is because "the two prosecuting entities did not derive their powers to prosecute from independent sources of authority."¹⁰ Id. at 90, 106 S.Ct. 433. The Heath Court explicitly rejected the notion that applicability of the dual sovereignty doctrine should hinge on an assessment of the separate sovereigns' interests. Id. at 92, 106 S.Ct. 433. Rather, if the prosecuting sovereigns are separate, "the circumstances of the case are irrelevant." Id.

B.

Angleton points out that, since Lanza was decided, the United States has assumed an increased role in the enforcement of criminal law. The dual sovereignty doctrine, however, has never required that where there is concurrent regulation, the United States or a state must demonstrate a unique interest not shared by the other. Heath, 474 U.S. at 92, 106 S.Ct. 433.

Angleton also accurately observes that Bartkus and Lanza were decided before the Double Jeopardy Clause was first applied to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The legal foundations of the dual sovereignty doctrine, however, have been firmly rooted in the notion that "[t]he same act may be an offence [sic] or transgression of the laws" of two separate sovereigns. Bartkus, 359 U.S. at 131, 79 S.Ct. 676 (quoting Moore, 55 U.S. (14 How.) at 20).

Angleton's argument — that incorporation of the Fourth and Fifth Amendments has led the Court to reconsider the constitutionality of other previously authorized practices in which cooperating state and federal prosecutors accomplished what the federal government was unable to do independently — is unavailing. Angleton cites the overruling, in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), of the "silver platter doctrine," a practice that, before the incorporation of the Fourth Amendment, permitted federal authorities to use evidence obtained illegally by state authorities. In Elkins, the Court reasoned that evidence seized illegally by one sovereign could not be turned over to another...