UNITED STATES OF AMERICA, Plаintiff-Appellee, v. CORTRAYER ZONE, Defendant-Appellant.
No. 03-10361
D.C. No. CR-02-00475-PMP/LRL
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed April 18, 2005
403 F.3d 1101
Philip M. Pro, District Judge, Presiding
Argued and Submitted April 13, 2004—San Francisco, California
Before: J. Clifford Wallace, Alex Kozinski and Sidney R. Thomas, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Wallace
Jason F. Carr and Alexander Modaber, Assistant Federal Public Defenders, Las Vegas, Nevada, for the defendant-appellant.
OPINION
PER CURIAM:
Cortrayer Zone appeals from the district court‘s order denying his motion to dismiss his federal сriminal 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 (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.
I
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 оf Alcohol, Tobacco and Firearms (ATF) agents; and
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
Several months after his state court plea, the federal government indicted Zone for a violation of
II
[1] 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 Jeopаrdy Clause. United States v. Lanza, 260 U.S. 377, 382 (1922); see also Heath v. Alabama, 474 U.S. 82, 89 (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 (1978))).
[2] 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 commandeеr a state‘s prosecutorial machinery, converting the state prosecution into “a sham and a cover for a
[3] Invoking Bartkus, Zone speculates that federal officials might have cajoled or prodded state prosecutors into concluding a plea bargain with Zone in order to faсilitate 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 evidеnce 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 (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 bur-
[4] 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.
III
We must decide next whether Zone, as the рarty 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 defendant “must produce some evidence tending to prove that . . . one sovereign was a pawn of the other, with the result that the notion of two supposedly independent prosecutions is merely a sham“); United States v. McKinney, 53 F.3d 664, 676 (5th Cir. 1995) (“[T]he defendant has the burden of producing evidence to show a prima facie double jeopardy claim.“).
[5] We affirm the district court‘s determination that Zone has not satisfied this evidentiary burden. Zone‘s only еvidence consists of newspaper articles appended to his motion
IV
[6] Zone petitions this court to remand his case to the district court with instructions to conduct an evidentiary hearing on his Bartkus claim. In past decisions, we have held that an evidentiary hearing may be necessary when the factual record does not support a district court‘s order granting a defendant‘s motion to dismiss on double jeоpardy grounds. See, e.g., Bernhardt, 831 F.2d at 183 (remanding a Bartkus claim to the district court with instructions to “consider whether [an evidentiary] hearing would aid in the factfinding process” after “[b]oth sides . . . requested [a] hearing to address the extent of federal involvement in” successive state and federal prosecutions). In this case, however, we deny Zone‘s request for remand and an evidentiary hearing because he has not presented any evidence of undue coercion or collusion by federal authorities, see Koon, 34 F.3d at 1439 (holding that at the very least a defendant “must make more than ‘conclusory allegations’ of collusion” to qualify for an evidentiary hearing (citation omitted)), and the government actively opposed his request for an evidentiary hearing on the double jeopardy claim in the district court.
V
[7] Zone also asks that we reverse the district court‘s order denying discovery into the task force‘s confidential decision-
[8] The collateral order doctrine is frequently applied where a district court denies a motion to dismiss on the basis of “an explicit statutory or constitutional guarantee that trial will not occur,” Midland Asphalt, 489 U.S. at 801, because an appeal after trial would be too late to protect the right not to be tried. For instance, we havе jurisdiction to review the district court‘s denial of Zone‘s motion to dismiss on double jeopardy grounds. See pages 4335-37 supra; see also Helstoski v. Meanor, 442 U.S. 500, 506-08 (1979) (allowing interlocutory appeal of motions to dismiss under the Speech or Debate Clause).
[9] Although we are dealing here with Zone‘s discovery request rather than his motion to dismiss, the two are clearly related: The purpose of the discovery request is to provide a basis for the motion to dismiss. Zone seeks information that,
Our caselaw thus indicates that we should look to the right a defendant seeks to establish through discovery in order to decide whether we may consider an interlocutory appeal of the decision denying that discovery. In United States v. Almany, 872 F.2d 924 (9th Cir. 1989), the defendant had requested grand jury transcripts that could have established that the government had not “inform[ed] the grand jury of certain Lanham Act defenses.” Id. at 925. But, we noted, only a “defect so fundamental that it causes the grand jury no longer to be a grand jury . . . gives rise to the constitutional right not to be tried.” Id. at 926 (quoting Midland Asphalt, 489 U.S. at 802) (internal quotation marks omitted). Even if the transcripts proved exactly what the defendant wished to show, he would not thereby have established a constitutional right not to be tried, see id., so he was not entitled to interlocutory review of the district court‘s decision to deny his request.
[10] Zone‘s discovery request differs fundamentally from the one in Almany because Zone seeks to establish his right not to be tried. Since this right would be lost if trial proceeds, and since the district court‘s denial of Zone‘s discovery request meets the other two requirements of the collateral order doctrine, we have jurisdiction to consider Zone‘s interlocutory appeal.*
VI
[12] In an era when close collaboration between state and federal prosecutors has become “the conventional practice . . . throughout the country,” Bartkus, 359 U.S. at 123, we reaffirm the settled rule that “[n]o constitutional barrier exists to this norm of cooperative effort.” Figueroa-Soto, 938 F.2d at 1020. Defendants raising double jeopardy challenges to successive state and federal prosecutions bear “the burden of producing evidence to show a prima facie double jeopardy claim.” McKinney, 53 F.3d at 676. As Zone has not satisfied this preliminary evidentiary burden, we affirm the district court‘s order denying his motion to dismiss and deny his request that we remand for an evidentiary hearing and further discovery.
AFFIRMED.
WALLACE, Senior Circuit Judge, concurring:
I agree that we have jurisdiction to review the district court‘s order denying Zone‘s motion to dismiss on double jeopardy grounds; that the district court did not err in denying that motion; and that Zone is not entitled to an evidentiary hearing on his double jeopardy claim. I write separately, however, to discuss the majority‘s analysis of whether we have
Pursuant to
However, other cases have chipped away at section 1291‘s limitation on our jurisdiction by deciding, on a case-by-case basis, that a particular discovery order satisfiеs the requirements of the collateral order doctrine. See, e.g., Bittaker v. Woodford, 331 F.3d 715, 717-18 (9th Cir. 2003) (en banc) (protective order precluding state from using privileged materials for any purpose other than litigating habeas petition alleging ineffective assistance), cert. denied, 540 U.S. 1013
In my view, we have gone astray in this latter group of cases. To say, as we sometimes have, that “most” discovery orders do not satisfy Cohen but nonetheless conclude that the particular order under review does, is to pay lip service to the fundamental limitations on our jurisdiction. As the Supreme Court has explained:
[W]e have . . . repeatedly stressed that the “narrow” exception [provided by the collateral order doctrine] should stay that way and never be allowed to swallow the general rule, that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated. We have accordingly described the conditions for collateral order appeal as stringent, and have warned that the issue of appealability under § 1291 is to be determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speedеd, or a “particular injustice” averted, by a prompt appellate court decision.
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (citations omitted). Thus, rather than continue to apply a case-by-case approach, I would hold, as the better-reasoned of our decisions suggest, that “the entire category” of discovery orders do not qualify as collateral orders. Such a rule would obviate the majority position which leads to an unfortunate anomaly. The majority says we have jurisdiction
This is not to suggest that the majority necessarily misapplies our precedents in holding that the discovery order at issue here is an appealable collateral order. Almany held that an order denying discovery was not appealable only after concluding that the denial did not implicate the appellant‘s constitutional “right not to be tried.” 872 F.2d at 926. Almany could therefore plausibly be read to suggest that a denial of discovery that does implicate the right not to be tried would be appealable under Cohen. However, I believe that this reading of Almany, like the reasoning of some of the other cases cited above, is not faithful to Congress‘s clear intent and the Supreme Court‘s teachings.
A holding that discovery orders do not satisfy the collateral order doctrine would not preclude all review of such orders before final judgment. We have held that “review of a discovery order through the exceptional remedy of mandamus may be appropriate in the proper circumstances.” Admiral Ins. Co., 881 F.2d at 1490. See also City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 1984) (“Mandamus review has been held to be appropriate for discovery matters which otherwise would be reviewable only on direct aрpeal after resolution on the merits“). The distinction between review by mandamus and review by appeal is important because “[t]he method of review will determine the standard of review. Mandamus is
Moreover, although Zone did not seek a writ of mandamus, “[w]e have the discretion to treat an appeal as a petition for writ of mandamus when appropriate,” Lee v. City of Beaumont, 12 F.3d 933, 936 (9th Cir. 1993), and we have occasionally exercised that discretion in “appeals that fail to meet the strict requirements of the ‘collateral ordеr’ doctrine.” Executive Software N. Am., Inc. v. United States Dist. Court, 24 F.3d 1545, 1550 (9th Cir. 1994). Indeed, we may even construe an appeal as a petition for writ of mandamus sua sponte. See Reynaga v. Cammisa, 971 F.2d 414, 417, 418 (9th Cir. 1992); In re Allen, 896 F.2d 416, 419 (9th Cir. 1990) (per curiam), citing Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339, 1343 (9th Cir. 1981). “Whether we will do so in a particular case depends upon whether the order qualifies for extraordinary relief under the guidelines set forth in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977).” Unified Sewerage Agency, 646 F.2d at 1343. Those guidelines are: (1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. . . . (3) The district court‘s order is clearly erroneous as a matter of law. (4) The district court‘s order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court‘s order
Bauman, 557 F.2d at 654-55. If a consideration of these factors suggests mandamus would be unjustified, we will “decline to construe the appeal as a writ of mandamus.” In re Nat‘l Mortgage Equity Corp. Mortgage Pool Certificates Litig., 821 F.2d at 1425.
Consequently, rather than creating yet another exception to section 1291 for discovery orders that implicate a “right not to be tried,” I would ask whether Zone would be entitled to a writ of mandamus directing the district court to grant Zone‘s discovery request. Among the five Bauman considerations, “it is clear that the third factor, the existence of clear error as a matter of law, is dispositive. Accordingly, [I] first examine whether the district court clearly erred.” Executive Software N. Am., Inc., 24 F.3d at 1551 (citations omitted).
We have not previously decided what showing a defendant must make to obtain discovery in aid of a double jeopardy claim based on the “sham” prosecution exception estаblished in Bartkus v. Illinois, 359 U.S. 121 (1959). The majority concludes that a defendant need only make the showing required by
I need not definitively decide what showing Zone had to make to obtain discovery, however. Zone would not be entitled to mandamus unless he could demonstrate “clear error as a matter of law,” and the district court did not commit such error even if the relatively lenient Rule 16 standard applied to Zone‘s discovery request. “Because this case clearly fails the test for issuing a writ of mandamus set forth in [Bauman], [I would] decline to treat the appeal as an application for mandamus.” Lee, 12 F.3d at 936. And, “[b]ecause [I] decline to treat the appeal as a petition, [I conclude that] we lack mandamus jurisdiction required to review the district court‘s [discovery] order.” Id. at 938. I would therеfore dismiss the appeal from the order denying discovery for a lack of jurisdiction.