DAVID PATRICK DURDEN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6453 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1) is not reported, but the judgment is noted at 907 F.2d 1142 (Table). JURISDICTION The judgment of the court of appeals was entered on June 5, 1990. A petition for rehearing was denied on September 5, 1990. The petition for a writ of certiorari was filed on December 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's prosecution in federal court after his acquittal on identical charges in state court violated his rights under the Double Jeopardy Clause. STATEMENT Following a jury trial in the United States District Court for the Middle District of Florida, petitioner was convicted of possessing more than 100 grams of cocaine with intent to distribute it (21 U.S.C. 841(a)(1)), and conspiracy to commit that offense (21 U.S.C. 846). He was sentenced to concurrent terms of eight years' imprisonment on each count. The court of appeals affirmed. Pet. App. A1. 1. In 1985, agents of the Drug Enforcement Administration were investigating cocaine trafficking in St. Petersburg, Florida. They contacted the Pinellas County, Florida, Sheriff's Office and invited the local officials to participate in the investigation. Gov't C.A. Br. 2. This investigation led to petitioner's arrest after he participated in the sale of one kilogram of cocaine to an undercover Pinellas County police officer. Gov't C.A. Br. 2-3. Petitioner was indicted by the State of Florida on charges of trafficking in cocaine and conspiracy to traffic in cocaine. The state prosecution was directed by Assistant State Attorney Glenn Martin. After a jury trial, petitioner was acquitted. Gov't C.A. Br. 4. Thereafter, a federal grand jury returned an indictment, based on the same facts as the state prosecution, charging petitioner with possession of cocaine with intent to distribute it and conspiracy to commit that offense. /1/ Glenn Martin, who had been appointed a Special Assistant United States Attorney, led the federal prosecution. Prior to trial, petitioner moved to dismiss the indictment, arguing that the federal prosecution violated his rights under the Double Jeopardy Clause of the Fifth Amendment. The district court denied the motion. At the conclusion of the trial, the jury convicted petitioner on both counts. Gov't C.A. Br. 4. 2. The court of appeals affirmed in an unpublished judgment order. Pet. App. A1. It rejected petitioner's argument that the Double Jeopardy Clause protected him from prosecution in federal court after he had been acquitted in state court on identical charges. The court observed that "under our dual sovereignty doctrine, successive state and federal prosecutions for the same conduct do not violate the Double Jeopardy Clause." Pet. App. A2. The court found "no facts presented in this appeal that will justify an exception to this basic principle." Pet. App. A2. ARGUMENT Petitioner renews his contention (Pet. 3-8) that his rights under the Double Jeopardy Clause were violated by his federal prosecution after he had been tried and acquitted of identical charges in state court. It is well settled that successive state and federal prosecutions for the same misconduct do not violate the Fifth Amendment's proscription of double jeopardy. See, e.g., Heath v. Alabama, 474 U.S. 82, 88-89 (1985); United States v. Wheeler, 435 U.S. 313, 316-317 (1978); Abbate v. United States, 359 U.S. 187, 194-195 (1959); Bartkus v. Illinois, 359 U.S. 121, 129 (1959); Moore v. Illinois, 55 U.S. (14 How.) 13, 19-20 (1852). "When a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.'" Heath, 474 U.S. at 88 (quoting United States v. Lanza, 260 U.S. 377, 382 (1922)). /2/ Petitioner concedes that the Court has "long maintained" this dual sovereignty doctrine (Pet. 4), but contends (Pet. 3-8) that in Bartkus v. Illinois, the Court announced an exception to the dual sovereignty doctrine where one prosecuting sovereign is used as a "tool" of the other or where the second prosecution amounts to a "sham and a cover" for what is in fact a renewal of the first. Bartkus, 359 U.S. at 123-124. Petitioner argues that the cooperation between state and federal authorities in their investigation and prosecution of his crimes was so extensive that the Bartkus exception should have been applied to bar the federal prosecution. As an initial matter, it is doubtful that this Court's decision in Bartkus was intended to create an exception to the dual sovereignty doctrine, and the Eleventh Circuit's judgment order does not read Bartkus as having done so. In Bartkus, a successful state prosecution followed an unsuccessful federal prosecution for the same offense -- bank robbery. 359 U.S. at 121-122. Although there had been extensive cooperation between the state and federal authorities, /3/ the Court rejected Bartkus's claim that the state prosecution was nothing more than a federal prosecution moved to a different forum: The record establishes that the prosecution was undertaken by state prosecuting officials within their discretionary responsibility and on the basis of evidence that conduct contrary to the penal code of Illinois had occurred within their jurisdiction. It establishes also that federal officials acted in cooperation with state authorities, as is the conventional practice between the two sets of prosecutors throughout the country. It does not support the claim that the State of Illinois in bringing its prosecution was merely a tool of the federal authorities, who thereby avoided the prohibition of the Fifth Amendment against a retrial of a federal prosecution after an acquittal. It does not sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution. Id. at 123-124 (footnote omitted; emphasis added). Neither the underlined passage nor any other part of the Court's lengthy analysis rejecting a Double Jeopardy Clause challenge to successive federal and state prosecutions shows any intention on the part of this Court to create an exception to the dual sovereignty doctrine. Instead, the Court merely rejected on the facts of the case any need to consider creating an exception to the dual sovereignty doctrine, without addressing the soundness of such an exception in general. Significantly, this Court has cited Bartkus many times without suggesting that that opinion was intended to impose any qualification on the dual sovereignty doctrine. See, e.g., Heath v. Alabama, 474 U.S. 82, 89, 93 (1985); Robinson v. Neil, 409 U.S. 505, 510 (1973); Waller v. Florida, 397 U.S. 387, 395 (1970). /4/ Even if the so-called Bartkus exception does exist, however, it has no application to this case. In attempting to establish that his second trial was barred under Bartkus, petitioner argues (Pet. 6) that the state and federal authorities did not conduct "independent and distinct" investigations. Even those courts that have recognized the Bartkus exception, however, have uniformly held that cooperation between state and federal investigators and prosecutors does not preclude successive prosecutions. See United States v. Jordan, 870 F.2d 1310, 1313 (7th Cir.) (evidence that state prosecutor suggested that federal authorities prosecute defendant who had entered guilty plea in state prosecution and that federal prosecutor used evidence gathered by state authorities "show(ed) nothing more than commendable cooperation between state and federal law enforcement officials"), cert. denied, 110 S. Ct. 101 (1989); United States v. Aboumoussallem, 726 F.2d 906, 909-910 (2d Cir. 1984) (investigation of criminal activity by joint federal-state task force did not bar successive prosecutions); United States v. Russotti, 717 F.2d 27, 31 (2d Cir. 1983) ("cooperative effort" between state and federal authorities did not preclude application of dual sovereignty doctrine), cert. denied, 465 U.S. 1022 (1984); United States v. Aleman, 609 F.2d 298, 309 (7th Cir. 1979) ("Law enforcement cooperation between state and federal authorities is a welcome innovation."), cert. denied, 445 U.S. 946 (1980). Petitioner next contends (Pet. 6-7) that the federal government "appears to have directed the states (sic) prosecution from the beginning." His only support for this contention is that state and federal authorities continued to coordinate their efforts once the investigation progressed to the trial stage so as to avoid bringing both cases to trial at the same time. Pet. 6. In United States v. Aboumoussallem, the Second Circuit considered and rejected an identical argument: (Appellant) also alleged that the federal and state prosecutorial authorities agreed to have the State proceed first in the hope of obtaining the harsher State drug penalties. * * * * Even if federal prosecutors had previously agreed that the state prosecution should proceed first in the expectation that substantial punishment would be imposed, the federal prosecutors would not thereby be "manipulating" a state prosecution in any sense that might implicate double jeopardy or due process concerns. 726 F.2d at 910 n.3. As the Second Circuit held, the federal government's decision to refrain from prosecuting a defendant until a prior state prosecution has ended does not require the government to abandon its right to initiate a federal prosecution if the state prosecution proves unsuccessful. Ibid. Finally, petitioner points to the fact that the same prosecutor led both the state and federal prosecutions. Pet. 7-8. The two other courts of appeals that have addressed the issue have both held that successive prosecutions are not barred under the Double Jeopardy Clause simply because the same individual directed both prosecutions. See United States v. Bernhardt, 831 F.2d 181, 183 (9th Cir. 1987) (appointment of state prosecutor as Special Assistant United States Attorney to conduct federal prosecution following dismissal of charges in state court did not require application of Bartkus exception); United States v. Padilla, 589 F.2d 481, 484 (10th Cir. 1978) (no Double Jeopardy Clause violation where same attorney led both federal and state prosecution). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney FEBRUARY 1991 /1/ This Office is advised that authority for the federal prosecution was sought and obtained pursuant to the policy identified in Petite v. United States, 361 U.S. 529 (1960), and Thompson v. United States, 444 U.S. 248 (1980). /2/ The dual sovereignty doctrine has frequently been applied to uphold successive prosecutions where, as here, the first trial resulted in an acquittal. See, e.g., Bartkus v. Illinois, 359 U.S. at 136; United States v. Patterson, 809 F.2d 244, 247 (5th Cir. 1987); United States v. Jones, 808 F.2d 561, 565 (7th Cir. 1986), cert. denied, 481 U.S. 1006 (1987); United States v. Aboumoussallem, 726 F.2d 906, 909-910 (2d Cir. 1984). /3/ The Court noted that agents of the Federal Bureau of Investigation had gathered much of the evidence that was used in the state prosecution. Some of that evidence was collected by the agents after the federal prosecution had resulted in an acquittal and thus had been gathered for the sole purpose of aiding the state prosecution, which did not commence until the federal prosecution had failed. 359 U.S. at 122-123 & n.1. /4/ Nevertheless, several courts of appeals have read the above-quoted language as creating such an exception. See, e.g., United States v. Moore, 822 F.2d 35, 38 (8th Cir. 1987); United States v. Aboumoussallem, 726 F.2d at 910; United States v. Aleman, 609 F.2d 298, 309 (7th Cir. 1979), cert. denied, 445 U.S. 946 (1980); United States v. Liddy, 542 F.2d 76, 79 (D.C. Cir. 1976). In each case, however, the court refused to apply the exception, finding no double jeopardy violation despite cooperation between federal and state authorities.