U.S. v. Zone, 03-10361.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation403 F.3d 1101
Docket NumberNo. 03-10361.,03-10361.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Cortrayer ZONE, Defendant-Appellant.
Decision Date18 April 2005

Jason F. Carr and Alexander Modaber, Assistant Federal Public Defenders, Las Vegas, NV, for the defendant-appellant.

Kathleen Bliss, Assistant United States Attorney, Organized Crime Strike Force, Las Vegas, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CR-02-00475-PMP/LRL.

Before WALLACE, KOZINSKI and THOMAS, Circuit Judges.

PER CURIAM Opinion; Concurrence by Judge WALLACE.


Cortrayer Zone appeals from the district court's order denying his motion to dismiss his federal criminal indictment. He argues that the instant federal prosecution violates his rights under the Double Jeopardy Clause because federal prosecutors orchestrated a previous state plea agreement in order to obtain a sworn admission for use in the federal proceedings. Because Zone has produced no evidence that "the state in bringing its prosecution was merely a tool of the federal authorities," United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (9th Cir.1991) (quoting Bartkus v. Illinois, 359 U.S. 121, 123, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959)) (internal quotation marks omitted), we affirm the district court's denial of his motion to dismiss and deny his request to remand for an evidentiary hearing and further discovery.


In early 2002, law enforcement officials in the Las Vegas area assembled a federally funded task force to address escalating gun violence. According to United States Attorney Daniel Bogden, the task force's ultimate objective was to "attack the violence of gun offenders" and "tak[e] them off the streets immediately." J.M. Kalil, New Approach: Prosecutors Take Aim at Gun Crimes, LAS VEGAS REV.-J., Mar. 8, 2002, at 1B, available at 2002 WL 6871941. Task force participants included representatives of the United States Attorney for the District of Nevada; Clark County deputy district attorneys; Bureau of Alcohol, Tobacco and Firearms (ATF) agents; and local police department investigators. To promote cooperation and information-sharing between state and federal officials, the task force conducted weekly meetings to discuss and coordinate participants' activities. In each case where federal and county prosecutors both claimed jurisdiction over a gun-related offense, the task force would "make a strategic decision where to prosecute it." Id.

Around the time state and federal officials were forming the task force, Zone was involved in criminal activity that potentially fell within its purview. On December 21, 2001, Nevada police arrested Zone on charges associated with carrying a concealed firearm (a handgun). Zone retained counsel and engaged in plea negotiations with the prosecutors. On April 16, 2002, he pleaded guilty to a violation of Nev.Rev.Stat. § 202.350 (carrying a concealed weapon), a gross misdemeanor. The local court assessed a $500 fine and a $25 administrative fee. Thereafter, the handgun was released to the ATF for further testing. The ATF determined that Zone's palm print was on the weapon.

Several months after his state court plea, the federal government indicted Zone for a violation of 18 U.S.C. § 922(g)(1), which prohibits felons from possessing "any firearm or ammunition" in interstate commerce, a charge predicated on the same conduct underlying his prior state conviction. The federal charge carried a higher statutory penalty: a fine, up to ten years imprisonment, or both. Id. § 924(a)(2). Suspecting that federal prosecutors might have orchestrated the prior plea proceedings in order to secure an admission of guilt for use in federal court, Zone asked the United States Attorney to produce records from the task force's weekly meetings. Zone hoped that these records would establish federal prosecutors' collusion with, or domination of, their county counterparts in the task force. The federal prosecutors rejected Zone's discovery request, and the district court denied his subsequent motion to compel information and documents.

Zone then filed a motion to dismiss the indictment. The motion restated Zone's suspicion that his state conviction was a sham or a cover for the federal prosecution and asserted that the federal proceedings violated Zone's rights under the Double Jeopardy Clause. The district court denied the motion to dismiss and stayed Zone's federal proceedings pending the outcome of this interlocutory appeal.


We review de novo the district court's denial of Zone's motion to dismiss on double jeopardy grounds. United States v. Price, 314 F.3d 417, 420 (9th Cir.2002). We will not exercise jurisdiction over Zone's interlocutory appeal from the denial of his motion to dismiss unless his double jeopardy claim is "colorable." Id."A double jeopardy claim is colorable if it has `some possible validity.'" Id. (quoting United States v. Sarkisian, 197 F.3d 966, 983 (9th Cir.1999)). Few double jeopardy claims based on successive state and federal prosecutions are "colorable" under this definition because, as a general rule, "an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each" without offending the Double Jeopardy Clause. United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922); see also Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) ("[T]he [Supreme] Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own `inherent sovereignty,' not from the Federal Government." (quoting United States v. Wheeler, 435 U.S. 313, 320 n. 14, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978))).

Lanza's separate-sovereigns rule has one important exception, however. In Bartkus, the Supreme Court suggested that the Double Jeopardy Clause might proscribe consecutive state and federal prosecutions in cases where federal authorities commandeer a state's prosecutorial machinery, converting the state prosecution into "a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution." 359 U.S. at 123-24, 79 S.Ct. 676. Although the Court explored this narrow exception in dicta, we have adopted the "Bartkus exception" as the controlling law of this circuit. See, e.g., Figueroa-Soto, 938 F.2d at 1019; United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir.1987).

Invoking Bartkus, Zone speculates that federal officials might have cajoled or prodded state prosecutors into concluding a plea bargain with Zone in order to facilitate a conviction in his subsequent federal trial. Even if Zone could prove this hypothesis true through testimonial or documentary evidence, he would not qualify for relief under the Bartkus exception. The Double Jeopardy Clause does not prevent federal prosecutors from encouraging their state counterparts to pursue plea bargains, nor does it prevent them from taking advantage of the evidentiary record developed in connection with a defendant's previous state conviction. See, e.g., United States v. Koon, 34 F.3d 1416, 1439 (9th Cir.1994) ("[T]he fact that evidence developed from the state trial was used in the federal trial does not create a double jeopardy problem."), rev'd in part on other grounds, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). "As Bartkus makes plain, there may be very close coordination in the prosecutions, in the employment of agents of one sovereign to help the other sovereign in its prosecution, and in the timing of the court proceedings so that the maximum assistance is mutually rendered by the sovereigns.... No constitutional barrier exists to this norm of cooperative effort." Figueroa-Soto, 938 F.2d at 1020. Instead, the Double Jeopardy Clause limits consecutive state and federal criminal proceedings only when federal prosecutors "so thoroughly dominate[ ] or manipulate[] the [state's] prosecutorial machinery ... that the latter retains little or no volition in its own proceedings." United States v. Guzman, 85 F.3d 823, 827 (1st Cir.1996); see also Bernhardt, 831 F.2d at 183(holding "that sufficient independent federal involvement would save" state-dominated prosecutions in federal court from the Bartkus exception); United States v. Liddy, 542 F.2d 76, 79 (D.C.Cir.1976) ("The burden ... of establishing that federal officials are controlling or manipulating the state processes is substantial; the[defendant] must demonstrate that the state officials had little or no independent volition in the state proceedings."). Thus, to the extent Zone's motion to dismiss alleges only collaboration between state and federal authorities, it fails to state a colorable double jeopardy claim.

On the other hand, Zone's contention that his "State prosecution was a sham or a cover for the subsequent Federal prosecution" could be interpreted to mean that federal authorities so thoroughly dominated the task force that state prosecutors exercised no independent volition in the decision to negotiate a state plea bargain prior to bringing federal charges. Although we have never considered a defendant's allegation that the first of two prosecutions was a "sham" or "cover," there is no logical reason why the Bartkus exception would not apply under such circumstances. Therefore, reading Zone's allegations in the light most favorable to his claim, we hold that his double jeopardy claim is sufficiently "colorable" to furnish jurisdiction over his interlocutory appeal.


We must decide next whether Zone, as the party moving for dismissal, has tendered sufficient evidence to establish a prima facie double jeopardy claim. See Guzman, 85 F.3d at 827 (holding that a...

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