U.S. v. Guy, s. 88-3178
| Decision Date | 21 May 1990 |
| Docket Number | Nos. 88-3178,88-3179,s. 88-3178 |
| Citation | 903 F.2d 1240 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rene Antoine GUY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray BARNES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas A. Cena, Jr., William R. Michelman, Tacoma, Wash., for defendants-appellants.
Mark N. Bartlett, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before BROWNING and FLETCHER, Circuit Judges, and REED, Jr., * District Judge.
Appellants Guy and Barnes were arrested by Washington authorities during a search of their apartment. Deputies found in Barnes' pocket a receipt for a safe, including the safe's serial number and combination. The serial number matched that of a safe found in appellants' bedroom. On top of the safe, the deputies found a gram scale; on the floor in front of the safe they found a shotgun. The deputies seized the safe, obtained a second search warrant, and opened the safe to find $2,500 in cash and approximately 900 grams of cocaine base. A quantity of marijuana was also found in the bedroom.
The state charged Guy and Barnes with possession of marijuana and cocaine with intent to deliver. They pled guilty to the marijuana charge in return for dismissal of the cocaine charge.
Based on the same nucleus of conduct, Guy and Barnes were subsequently indicted and convicted in federal court of conspiracy to distribute cocaine, possession of a sawed-off shotgun, possession of more than 50 grams of cocaine base with intent to distribute, and knowing use of a firearm in relation to a drug trafficking crime.
Guy and Barnes appeal their convictions asserting four errors: (1) the federal trial exposed them to double jeopardy; (2) the safe was illegally seized and its contents should have been suppressed; (3) the evidence did not support their conviction on the firearm charge; and (4) the trial court erred in instructing the jury on the firearm charge.
Guy and Barnes allege the state offered the plea agreement because they knew the original search warrant for the apartment was flawed under state law. Guy and Barnes made an offer of proof that the federal charges were brought to avoid the stricter requirements of state law as to the reliability of informants, and because more severe sentences could be imposed under federal statutes.
Guy and Barnes claim the federal prosecution was really a cover for repetition of a failed state prosecution, and falls within an exception to the general rule that the double jeopardy clause is not implicated where separate sovereigns pursue separate prosecutions against the same defendant. See Bartkus v. Illinois, 359 U.S. 121, 123-24, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959); United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir.1987). The district court rejected a petition for an evidentiary hearing and denied the claim.
The government argues we should not consider this appeal on the merits because our prior unpublished memorandum decision in United States v. Thompson, 874 F.2d 817 (9th Cir.1989), is "law of the case." See 9th Cir.R. 36-3. In the original federal indictment Guy and Barnes were charged together with another participant, Thompson. All filed motions to dismiss on double jeopardy grounds which were denied. Thompson's trial was severed and he immediately appealed. Guy and Barnes waited to appeal the issue until after trial and conviction. In Thompson we considered the precise double jeopardy arguments raised here and affirmed the district court.
The government cites United States v. Houser, 804 F.2d 565, 567-69 (9th Cir.1986), in support of its argument that the "law of the case" doctrine applies. In Houser, the same party brought an issue first before a motions panel and then to a merits panel of this court. In contrast, this case involves different parties convicted in different trials. It is closer to United States v. Maybusher, 735 F.2d 366, 370 (9th Cir.1984), where we noted Id.
While our decision in Thompson is not "law of the case" for Guy and Barnes, we reach the same result as the prior panel for the following reasons:
The basic rule asserted by Guy and Barnes is well-understood. No person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." U.S. Const. Amend. V. However, the prohibition against twice being placed in jeopardy does not foreclose a second prosecution by a different sovereign for the same offense. Heath v. Alabama, 474 U.S. 82, 93, 106 S.Ct. 433, 439, 88 L.Ed.2d 387 (1985).
It is a narrow exception to the dual sovereignty rule that is implicated in this case. If the second prosecution, otherwise permissible under the dual sovereignty rule, is not pursued to vindicate the separate interests of the second sovereign, but is merely pursued as a sham on behalf of the sovereign first to prosecute, it may be subject to a successful double jeopardy challenge. United States v. Bernhardt, 831 F.2d at 182.
Guy and Barnes maintain that the facts presented here are sufficient to sustain a successful double jeopardy attack on the federal prosecution. We disagree.
First, it is noted that the federal charge does not duplicate the state offenses. Guy and Barnes were put in jeopardy in the state court only for possession of marijuana. In federal court they were charged with conspiracy to distribute cocaine, possession of cocaine base, and possession of a sawed-off shotgun. The federal sovereign thus sought to vindicate separate interests than did the state sovereign.
It is true that the federal government relied in part on information provided by For these reasons we hold the district court properly denied Guy's and Barnes' motions to dismiss on double jeopardy grounds.
the state, but there is evidence of independent federal involvement as well. The actions of federal enforcement officials, acting independently to vindicate...
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