United States v. Steven D. Allen

16 F.3d 288, 1994 U.S. App. LEXIS 2030, 1994 WL 33572

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 9, 1994
• Docket: 93-3235
• Status: Published

Opinion

BEAM, Circuit Judge.

The State of Missouri charged Allen with possession of marijuana with intent to distribute. After the state court granted Allen’s motion to suppress the seized marijuana, the state prosecutor contacted an Assistant United States Attorney (AUSA) — a former assistant state prosecutor — who decided to pursue a federal indictment. The state dismissed its case and a federal grand jury indicted Allen for possession with intent to distribute. After the district court 1 denied Allen’s specified motion to dismiss the indictment, Allen entered a conditional guilty plea. See Fed.R.Crim.P. 11(a)(2). Allen now appeals the denial of his specified motion to dismiss the indictment. We affirm.

Allen argues that because the state prosecutor contacted the AUSA rather than appeal the motion to suppress, the government engaged in a “sham prosecution” which violated his double jeopardy and due process rights. See Bartkus v. Illinois, 359 U.S. 121, 122-24, 79 S.Ct. 676, 677-79, 3 L.Ed.2d 684 (1959). Since the federal prosecution did not commence, however, until after the state prosecution had ceased, Allen’s argument is meritless. See United States v. Deitz, 991 F.2d 443, 445-46 (8th Cir.1993).

Accordingly, we affirm.

1 . The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri, adopting the recommendation of the Honorable Frederick Ü. Buckles, United States Magistrate Judge for the Eastern District of Missouri.