United States v. X. D.

442 F. App'x 832

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 11, 2011
• Docket: 11-4287
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 11-4287

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

X.D.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:10-cr-00036-RGD-FBS-1)

Submitted: June 24, 2011 Decided: August 11, 2011

Before KING, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, William D. Muhr, V. Kathleen Dougherty, Richard D. Cooke, Assistant United States Attorneys, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

X.D. appeals a district court order denying his motion

to dismiss the indictment on double jeopardy grounds. X.D.

argues that the federal prosecution is a sham prosecution

brought only after Norfolk, Virginia’s Commonwealth’s Attorney

unsuccessfully brought the same charges against him. We affirm.

An order denying a motion to dismiss an indictment on

double jeopardy grounds is immediately appealable. Abney v.

United States, 431 U.S. 651, 659-60 (1977). This court reviews

double jeopardy issues de novo. United States v. Studifin, 240

F.3d 415, 418 (4th Cir. 2001). The Double Jeopardy Clause

protects against the subsequent prosecutions for the same

offense. However, the dual or separate sovereigns doctrine

permits a federal prosecution after a state prosecution for the

same offense. Heath v. Alabama, 474 U.S. 82, 89 (1985). In

Barkus v. Illinois, 359 U.S. 121, 122-24 (1959), the Supreme

Court noted that a subsequent prosecution by a separate

sovereign could be a sham if it was shown that the sovereign was

merely a tool for the sovereign that originally prosecuted the

case.

A subsequent prosecution may be a sham if the

sovereign had “little or no independent volition in their

proceedings.” In re Kunstler, 914 F.2d 505, 517 (4th Cir.

1990). In addition, a sham prosecution may be found if the

2 sovereign’s decision-making was dominated or controlled by the

other sovereign or if the prosecution did not vindicate the

sovereign’s interests. See United States v. Montgomery, 262

F.3d 233, 238 (4th Cir. 2001).

The “sham prosecution” exception to the dual sovereign

doctrine is a narrow one. See United States v. Djoumessi, 538

F.3d 547, 550 (6th Cir. 2008). Cooperation between sovereigns

does not establish that one sovereign has ceded its

prosecutorial discretion to the other sovereign. Id.

Similarly, cooperation between law enforcement agencies is

commendable, and, “without more, such efforts will not furnish a

legally adequate basis for invoking the Barkus exception to the

dual sovereign rule.” United States v. Guzman, 85 F.3d 823, 828

(1st Cir. 1996).

In this instance, we conclude that X.D. failed to show

that the U.S. Attorney’s Office’s decision to bring criminal

charges against him was not of the Office’s own volition. There

is no evidence that the State controlled the U.S. Attorney’s

Office decision-making. Furthermore, the record shows that the

Federal Government has an interest in bringing charges against

X.D. for murder and assaults that allegedly rose from his gang

activity.

Accordingly, we affirm the district court’s order. We

deny the Government’s motion to expedite or for summary

3 affirmance. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

AFFIRMED