U.S. v. Beckley

Citation972 F.2d 349
Decision Date22 July 1992
Docket NumberNo. 91-6177,91-6177
PartiesNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES, Plaintiff-Appellee, v. Bobby Carroll BECKLEY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Before KENNEDY, DAVID A. NELSON and BATCHELDER, Circuit Judges.

PER CURIAM.

Defendant appeals his conviction and sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871. For the reasons set out below, we affirm defendant's conviction and sentencing.

I.

On November 16, 1990, defendant Bobby Beckley went to Tubby's Bar, had several drinks, and was told by the bartenders to leave after he had a near scuffle with a patron. He left the bar. Beckley returned with a loaded sawed-off shotgun. He opened the barroom door and pointed the gun into the barroom with both hands on the gun. The barroom was crowded, and the patrons screamed. One bartender shoved Beckley out the door and closed it. Beckley then struggled with another bartender while she tried to close the back door. Beckley was arrested next to his car. The gun was found underneath the car, and a shell was found in his left front pocket.

Beckley was indicted in state court on charges of wanton endangerment and of being a first degree persistent felony offender. At the state court hearing, the state prosecutor noted that he had contacted federal authorities about pursuing a possible firearms charge. The prosecutor also sent the federal authorities his reports and witness statements. Beckley contends that this same prosecutor later encouraged Beckley's attorney to have Beckley hurry to enter a guilty plea in state court so he could raise a double jeopardy defense in federal court. Beckley's attorney admitted that he questioned whether a double jeopardy defense was "available to us at that time from my limited understanding of where we were." Beckley's attorney contacted federal officials and claims that a prosecutor at the U.S. Attorney's Office (he cannot identify who it was) told him that there was no pending federal investigation of Beckley.

On March 22, 1991, Beckley entered a guilty plea in state court to the wanton endangerment charge. On April 11, 1991, Beckley was indicted on federal charges of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2) and possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871, in connection with the same Tubby's Bar incident. On May 16, 1991, the government filed a notice that it would be seeking to treat Beckley as an "armed career criminal." Beckley moved to dismiss the indictment on double jeopardy and due process grounds and objected to the "armed career criminal" specification. The district court denied his motions.

Beckley pled guilty to the charges. He was sentenced to 300 months in prison as an armed career criminal. He now appeals his conviction and sentence.

II.

Beckley first contends that his federal conviction, following the state conviction, constituted double jeopardy in violation of the Fifth Amendment. He also claims that the indictment should be dismissed because federal officials misled him about possible federal charges, and therefore the prosecution violated his due process rights. We affirm the district court's rulings that defendant's federal conviction following his state court conviction does not violate the Double Jeopardy Clause.

The Double Jeopardy Clause of the Constitution provides that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. The Supreme Court has fashioned a dual sovereignty rule, under which a defendant's act may be a crime under both state and federal law, and a defendant can be punished by each sovereign for the same act without violating the Double Jeopardy Clause. Abbate v. United States, 359 U.S. 187, 195-96, 79 S.Ct. 666, 671 (1959). However, a collusion exception to the dual sovereignty rule prohibits the state prosecution from being used merely as a cover for the federal prosecution. Bartkus v. Illinois, 359 U.S. 121, 122-24, 79 S.Ct. 676, 677-78 (1959). Cooperation and joint investigations between the state and federal prosecutors are permissible, so long as one prosecution is not a sham or a cover for the other. United States v. Patterson, 809 F.2d 244, 247 (5th Cir.1987); United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir.1984).

Here, there was cooperation between state and federal authorities in that the state prosecutor contacted the U.S. Attorney's Office and sent that office his reports. However, there were clearly two investigations. The federal authorities decided on their own to seek an indictment and convicted the defendant based on evidence obtained through their investigation.

There is no evidence in the record indicating that state and federal officials misled Beckley. Even if the state prosecutor indicated to Beckley's attorney that Beckley would have a double jeopardy claim in federal court, the evidence shows that Beckley's attorney, James Pike, doubted that such a claim existed. There is no indication that Pike relayed this double jeopardy information to Beckley. Even if someone at the U.S. Attorney's Office did tell Pike that no federal investigation was pending against Beckley, this would not rise to the kind of collusion or sham that Bartkus foresaw. In addition, in the state plea agreement and at the state plea hearing, Beckley and his attorney did not indicate that prosecutors made any representations or promises to Beckley. Therefore, the federal prosecution did not violate the Double Jeopardy Clause.

Neither did the federal prosecution violate Beckley's due process rights to fundamental fairness. To violate due process, the federal authorities must have participated in the state plea bargaining or made a firm commitment not to prosecute the defendant in federal court. United States v. Paul, 853 F.2d 308, 311 (5th Cir.1988), cert. denied, 488 U.S. 1012, 109 S.Ct. 801 (1989). If a defendant's guilty plea "is based on his mistaken subjective belief that federal agents did not intend to prosecute him," there is no due process violation unless the impression was created or condoned by federal agents. Id. Here, the federal authorities were not involved in Beckley's state plea bargain. Federal officials also did not tell Beckley that they did not intend to prosecute him on federal charges. The most that may have been said to Attorney Pike in answer to his questions as to whether the United States Attorney's Office was involved in any investigation, whether any charges were pending, and whether the prosecutor knew what was going on regarding the Carroll County case was, "No, we are not involved, and I don't know anything about any Bobby Beckley case." In fact, Beckley's state plea bargain specifically indicated that the agreement only applied to the state charges. Therefore, Beckley's prosecution and plea of guilty in federal court were not fundamentally unfair and did not violate the Due Process Clause.

III.

Beckley next argues that his federal indictment should be dismissed because it violated the Department of Justice's Petite policy. We find that Beckley has no standing to claim a Petite policy violation.

The Justice Department has had an established "Petite Policy" since 1959 that states that there should be no federal prosecution subsequent to a state prosecution for substantially the same acts unless an Assistant Attorney General approves such prosecution based on compelling federal interests. 1 See United States v. Renfro, 620 F.2d 569, 573 n. 2 (6th Cir 1980) (citing Petite v. United States, 361 U.S. 529, 80 S.Ct. 450 (1960)), cert. denied, 449 U.S. 902, 101 S.Ct. 274 (1980). The Petite policy "is not constitutionally mandated and confers no rights upon the accused." United States v. Frederick, 583 F.2d 273, 274 (6th Cir.1978), cert. denied, 444 U.S. 860, 100 S.Ct. 124 (1979). Only the government has standing to seek a dismissal of an indictment because of a violation of the Petite policy. Renfro, 620 F.2d at 574.

Therefore, Beckley has no standing to seek a dismissal based on the Petite policy. But, even if he did, there is no evidence that the policy was violated or that an exemption from the policy was not obtained.

IV.

Beckley next argues that his 300-month sentence was improper because the firearms offenses are not "crimes of violence," and therefore he cannot be sentenced under the career offender provision referenced in the "armed career criminal" section of the Sentencing Guidelines. We find that Beckley's felon-in-possession conviction involved a crime of violence, and therefore the district court was correct in sentencing him using the career offender provision.

The two-count indictment charged Beckley with knowingly possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and with knowingly possessing an unregistered shotgun in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871. The indictment does not mention the incident in Tubby's Bar specifically. Defendant Beckley pled guilty to both counts.

To qualify as an armed career criminal under 18 U.S.C. § 924(e)(1), a defendant must have violated the felon in possession statute, 18 U.S.C. § 922(g), and have three previous convictions for a "violent felony or a serious drug offense, or both, committed on occasions different from one another." § 924(e)(1). Here, Beckley was convicted of being a felon in possession and had at least three previous convictions for violent felonies, viz., three 1978 burglaries. 2

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