U.S. v. Leathers

• Decision Date: 16 January 2004
• Docket Number: No. 03-1181.,03-1181.
• Citation: 354 F.3d 955
• Parties: UNITED STATES of America, Appellee, v. Eugene LEATHERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

354 F.3d 955

UNITED STATES of America, Appellee, v. Eugene LEATHERS, Appellant.

No. 03-1181.

United States Court of Appeals, Eighth Circuit.

Submitted: September 11, 2003.

Filed: January 16, 2004.

Rehearing and Rehearing En Banc Denied: March 5, 2004.

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Jeremy S. Weis, argued, Kansas City, MO (Charles M. Rogers, Kansas City, MO, on the brief), for appellant.

Bradley J. Schlozman, argued, Washington, D.C., for appellee.

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.

BOWMAN, Circuit Judge.

Eugene Leathers appeals his May 15, 2002 conviction of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g) (2000). Leathers argues that his convictions under § 922(g) were constitutionally deficient in that his possession of the firearm and ammunition lacked a sufficient impact on interstate commerce. Leathers also argues that the District Court¹ erred in failing to dismiss his indictment on grounds of double jeopardy, vindictive prosecution, and selective prosecution. We affirm.

On January 18, 1998, Leathers led police officers on a high-speed pursuit after shooting Curtis Ford. Leathers crashed the truck he was driving and fled on foot before being apprehended by police officers. An inventory of the truck turned up three rounds of live ammunition. The firearm used in the shooting was discovered the next morning along the route of the chase. These events took place in Jackson County, Missouri.

In February 1998, Leathers was charged in the circuit court of Jackson County with assault in the first degree and armed criminal action. John Quinn, a private attorney, was appointed as a special prosecutor because of an internal conflict in the Jackson County prosecutor's office. Initially, Catherine Connelly, also a private attorney, was retained to represent Leathers, but she withdrew because of irreconcilable differences with her client. Connelly subsequently accepted employment as an Assistant United States Attorney for the Western District of Missouri. A public defender represented Leathers when the case went to trial in state court on September 25, 2000. The jury found Leathers guilty of second-degree assault and armed criminal action. After receiving the verdict, the trial judge set Leathers's bail at $7,500 pending sentencing. Unhappy with the bail amount, Mr. Quinn stated in court that he would "move things up the street," a reference to instigating a federal prosecution. In either late November or early December of 2000, Quinn delivered Leathers's file to the Bureau of Alcohol, Tobacco, Firearms and Explosives as a referral for federal prosecution. On January 12, 2001, Leathers was sentenced on the state-court convictions and received a sentence of ten years for second-degree assault and a concurrent sentence of three years for armed criminal action.

A federal grand jury initially indicted Leathers on January 16, 2001 charging him with two violations of 18 U.S.C. § 922(g): being a felon in possession of a firearm and being a felon in possession of ammunition. An August 8, 2001 superseding indictment repeated these charges. On May 15, 2003, a jury convicted Leathers on both of the charges and the District Court sentenced him under § 922(e)(1) to concurrent prison terms of 327 months on each count.

I.

Leathers's first claim is that 18 U.S.C. § 922(g) as applied to him is an unconstitutional exercise of Congress's power under the Commerce Clause of the Constitution because his possession of a firearm and ammunition did not have a significant impact on interstate commerce. Recognizing this Circuit's long-standing precedent to the contrary, Leathers nevertheless argues that the Supreme Court's decision in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), implicitly overruled the Supreme Court's decision in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) (holding that the felon-in-possession-of-a-firearm statute only requires a showing that the firearm at one time traveled through interstate commerce) and requires us to revisit the issue. We already have repeatedly rejected this argument, see United States v. Gary, 341 F.3d 829, 835 (8th Cir.2003); United States v. Shepherd, 284 F.3d 965, 969 (8th Cir.2002), and this panel, as distinguished from the court en banc, is not at liberty to revisit this issue. See United States v. Wilson, 315 F.3d 972, 973-74 (8th Cir.), cert. denied, 539 U.S. 968, 123 S.Ct. 2661, 156 L.Ed.2d 672 (2003). In accordance with our prior decisions, inasmuch as Leathers's firearm and ammunition were produced out-of-state and traveled to Missouri through interstate commerce, the jurisdictional requirement of § 922(g) is satisfied. We thus reject Leathers's interstate-commerce challenge to his prosecution under § 922(g).

II.

Next, Leathers argues that his subsequent federal prosecution violated his rights under the Double Jeopardy Clause of the Fifth Amendment. Acknowledging the vitality of the dual-sovereignty doctrine, Leathers nevertheless argues that the subsequent federal prosecution falls into an exception to the dual-sovereignty doctrine laid out in the dicta of Bartkus v. Illinois, 359 U.S. 121, 123-24, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Our review of a district court's double jeopardy determination is de novo. United States v. Johnson, 169 F.3d 1092, 1095 (8th Cir.), cert. denied, 528 U.S. 857, 120 S.Ct. 143, 145 L.Ed.2d 121 (1999).

"The dual sovereignty doctrine provides that although a defendant may not be prosecuted twice by the same sovereign for the same acts, a subsequent prosecution by a separate sovereign does not violate the Constitution." Johnson, 169 F.3d at 1096. The State of Missouri and the United States are separate sovereigns in our federal system and for purposes of the Double Jeopardy Clause. Accordingly, Leathers's prosecution by the United States after he already had been prosecuted by the State of Missouri for the same acts was constitutionally permissible unless the Bartkus exception applies. The Bartkus court, in dicta, suggested that a subsequent state prosecution that is a "sham and cover" may violate the Double Jeopardy Clause if the state prosecutors were merely the "tools" of the federal government; i.e., if the state prosecution was de facto a second federal prosecution. See Bartkus, 359 U.S. at 123-24, 79 S.Ct. 676 (quoted in United States v. Williams, 104 F.3d 213, 216 (8th Cir.1997)). While the dicta in Bartkus addresses a subsequent state prosecution, in this case the federal prosecution was subsequent to the state prosecution. We have never explicitly held that the Bartkus exception applies to subsequent federal prosecutions. See United States v. Basile, 109 F.3d 1304, 1307 (8th Cir.), cert. denied, 522 U.S. 873, 118 S.Ct. 189, 139 L.Ed.2d 128 (1997). Even if we were to assume without deciding that the Bartkus dicta could apply to subsequent federal prosecutions, the facts of this case fall far short of establishing that the federal prosecution of Leathers was a "sham and cover" within the meaning of Bartkus.

Leathers points to three different instances of contact between state and federal prosecutors to support his contention that the federal prosecution was merely a de facto state prosecution. First, he argues that the state prosecutor's referral of the matter to federal prosecutors was the direct cause of the federal prosecution. Thus he argues that because his federal prosecution would never have occurred but for Mr. Quinn's referral, the federal prosecutors were not acting independently. This position is unavailing. A causal connection such as the one shown here does not make a subsequent federal prosecution a "sham and cover" for a state prosecution. Referrals and cooperation between federal and state officials not only do not offend the Constitution but are commonplace and welcome. See Bartkus, 359 U.S. at 123, 79 S.Ct. 676 (describing state and federal cooperation as the standard practice); United States v. Talley, 16 F.3d 972, 974 (8th Cir.1994).² A referral made by a state prosecutor does not undermine the independence of federal prosecutors, regardless of the state prosecutor's motives in making the referral. The inquiry is not whether the prosecution would have taken place but for the referral, but rather whether the state has "effectively manipulated the actions of the federal government, so that the federal officials retained little or no independent volition." United States v. 38 Whalers Cove Drive, 954 F.2d 29, 38 (2d Cir.), cert. denied, 506 U.S. 815, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992).

This brings us to the second of the circumstances relied upon by Leathers in support of his argument for application of the Bartkus exception. In the course of investigating whether or not to initiate a federal prosecution of Leathers, Assistant United States Attorney Charles Ambrose phoned Mr. Quinn. During this telephone conversation Mr. Quinn speculated that Leathers would only receive a sentence of two and a half years on the state convictions. Leathers argues that Mr. Quinn's inaccurate estimate of the length of the state sentence improperly influenced the federal prosecutor. It is difficult to imagine how speculation as to the length of a state sentence could improperly influence a federal prosecutor's independent assessment of a case as a candidate for federal prosecution. In any event, because Leathers was sentenced to ten years on the state convictions prior to his indictment by a federal grand jury, any underestimate by Mr. Quinn became irrelevant.

Third, Leathers argues that Ms. Connelly's presence in the United States Attorney's office for the Western District of Missouri created a conflict of interest that undermined the federal prosecutor's independence. The Bartkus exception only applies when a sovereign improperly influences another sovereign. Even if we were to assume that...