234 F.3d 1280 (D.C. Cir. 2000)
United States of America, Appelleev.Mohammed Rashed, a/k/a Rashid Mohammed, Appellant
No. 00-3006
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2000Decided December 19, 2000

Appeal from the United States District Court  for the District of Columbia  (No. 87cr00308-02)
Robert L. Tucker, Assistant Federal Public Defender, argued the cause for appellant.  With him on the briefs was A.  J. Kramer, Federal Public Defender.
John F. De Pue, Attorney, U.S. Department of Justice,  argued the cause for appellee.  With him on the brief were  Scott J. Glick and Susan A. Sinclair, Attorneys, and Wilma  A. Lewis, U.S. Attorney.
Before:  Williams, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Stephen F. Williams, Circuit Judge:


1
Mohamed Rashed moved the  district court to dismiss six of the nine counts of an indictment charging him with terrorism.  He claimed that under  the Double Jeopardy Clause his prior prosecution in Greece  for related offenses foreclosed a prosecution in the United  States.  Rashed recognized that the dual sovereignty doctrine  normally renders the double jeopardy bar inapplicable in  cases of prosecutions by different sovereigns.  But he invoked  an exception overriding the dual sovereignty doctrine when  one sovereign's prosecution is a "sham" for prosecution by the  other.  See Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959). The district court denied the motion.  United States v.  Rashed, 83 F. Supp. 2d 96 (D.D.C. 1999).


2
We affirm.  In no reasonable sense of the word was  Greece's prosecution of Rashed a sham.  Far from being  controlled by the United States, the Greek trial occurred only  because Greece rejected U.S. demands for Rashed's extradition, yet was subject to the requirement of Article 7 of the  Montreal Convention to prosecute Rashed itself if it failed to  extradite him.  Convention on Suppression of Unlawful Acts  Against the Safety of Civil Aviation, Sept. 23, 1971, arts. 7-8,  24 U.S.T. 565, 571 ("Montreal Convention").


3
*  *  *


4
Rashed is charged with participating in various bombing  enterprises around the world in violation of U.S. law.  The  charges include placing a bomb on an August 11, 1982, Pan  Am flight from Tokyo to Honolulu, killing one and wounding  15 passengers.  Rashed is also charged with conspiring in the  same month to place a bomb on a Pan Am aircraft in Rio de  Janeiro, a bomb that luckily was discovered and removed  safely.  The counts of the indictment at issue here, 1 and 3-7,  all relate to the bomb on the Tokyo-Honolulu flight.


5
At the request of the United States, Greek authorities  detained an individual bearing a passport in the name of Mohammed Hamdan on May 30, 1988.  The individual was in  fact Rashed, who here asserts--at the expense of his notion  that Greece is a U.S. pawn--that the United States did not  tell Greece of Hamdan's true identity for fear that otherwise  Greece wouldn't have apprehended him.  After verifying  Rashed's capture, the United States requested his extradition  under its bilateral extradition treaty with Greece.  Treaty of  Extradition between the United States and the Hellenic  Republic, May 6, 1931, 47 Stat. 2185, as further interpreted  by the Protocol, Sept. 2, 1937, 51 Stat. 357.  In May 1989 the  Greek Supreme Court ruled that Rashed could be extradited  on some but not all counts of the U.S. indictment.  Decision  820/1989, Greek Supreme Court, Sixth Penal Section (May 12,  1989).  But the Greek government delayed handing Rashed  over to the United States and officially rejected the United  States's extradition request in September 1990.  Instead  Greece chose to pursue Article 7's alternative course, that of  prosecuting Rashed itself.  Montreal Convention, art. 7, 24  U.S.T. at 571.


6
A Greek court found Rashed guilty of intentional homicide  and placement of explosive devices in an aircraft, but acquitted him of charges of illegal seizure of an aircraft and  instigation of damage to aircraft.  Although sentenced to 15  years in prison, he was released on December 5, 1996, after  serving eight and a half years.  In the course of his travels  away from Greece he was taken into custody and arrested by  the FBI.


7
In denying Rashed's motion to dismiss, the district court  not only rejected Rashed's sham prosecution theory but also  concluded that none of the charges satisfied the Blockburger  test for determining when crimes stated in two charges  constitute "the same offense."  Rashed, 83 F. Supp. 2d at  103-04;  see Blockburger v. United States, 284 U.S. 299  (1932).  We affirm, but because we reject the sham prosecution theory we have no need to address the Blockburger issue.


8
*  *  *


9
The Double Jeopardy Clause of the Fifth Amendment  provides that "[n]o person shall be subject for the same offense to be twice put in jeopardy of life and limb."  The  clause forecloses multiple prosecutions for the same offense  by the same sovereign, but not ones by different sovereigns. Heath v. Alabama, 474 U.S. 82 (1985) (successive state-state  prosecutions);  United States v. Wheeler, 435 U.S. 313 (1978)  (successive Navajo tribal court-federal prosecutions);  Abbate  v. United States, 359 U.S. 187 (1959) (successive state-federal  prosecutions);  United States v. Rezaq, 134 F.3d 1121, 1128  (D.C. Cir. 1998) (successive foreign-federal prosecutions). The exception for dual sovereignty flows from the understanding that every sovereign has the authority to punish  infractions of its own laws.  Wheeler, 435 U.S. at 317.


10
In Bartkus v. United States, 359 U.S. 121 (1959), however,  the Supreme Court implicitly suggested an exception to the  dual sovereignty doctrine.  Illinois had brought a robbery  charge against a man who had been acquitted of the same  charge in federal court.  The Court upheld the state prosecution, but emphasized that the evidence failed to show that  Illinois, in bringing its suit, had been "merely a tool of the  federal authorities" or that its prosecution had been "a sham  and a cover for a federal prosecution."  Id. at 123-24.  A  number of circuits have accordingly inferred a "sham prosecution" exception to dual sovereignty.  See, for example,  United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir.  1991);  United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir.  1987).  United States v. Balsys, 524 U.S. 666 (1998), may  indicate further support for such an exception.  There the  Court held that while fear of prosecution in a foreign country  normally does not provide a basis for asserting the Fifth  Amendment right against self-incrimination in a judicial proceeding in the United States, a different result might be  appropriate if the foreign nation brought its prosecution "as  much on behalf of the United States as of the prosecuting  nation" itself.  Id. at 698-99.


11
Several courts have stressed that the Bartkus exception is  a narrow one and difficult to prove.  United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996) (narrow exception); United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir.  1984) (same);  United States v. Figueroa-Soto, 938 F.2d 1015,  1019 (9th Cir. 1991) (difficult to prove).  Others have questioned whether the exception even exists.  United States v.  Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993);  United  States v. Patterson, 809 F.2d 244, 247 n. 2 (5th Cir. 1987). We have uncovered no case where a court found successive  prosecutions by different nations to fall under the Bartkus  exception, though defendants have tried the theory in at least  four cases.  See Guzman, 85 F.3d at 827;  United States v.  Baptista-Rodriguez, 17 F.3d 1354, 1361 (11th Cir. 1994); United States v. McRary, 616 F.2d 181, 185 (5th Cir. 1980); United States v. Richardson, 580 F.2d 946, 947 (9th Cir.  1978).  The government suggests that we should hold the  exception inapplicable to foreign prosecutions.  It reasons  foreign governments are never subject to the sort of federal  domination that states may be, so that the sham relationship  is much less probable in the international context.  Improbability may imply rarity, but we do not think the sham  relationship so unlikely as to justify a blanket rule against the  exception in the foreign prosecution context.


12
As a preliminary matter, we are not persuaded by Rashed's  suggestion that the United States may have been in "privity"  with Greece in that government's prosecution, and that this  privity argues for finding the sham exception applicable. (Rashed makes no collateral estoppel claim per se, identifying  no issue that was resolved in his favor in the Greek litigation.) In general, a party is in privity with anotherif it "assume[d]  control over litigation" by the other.  Montana v. United  States, 440 U.S. 147, 154 (1979).  See also 18 Charles Alan  Wright, Arthur R. Miller & Edward H. Cooper, Federal  Practice and Procedure § 4451, at 428 (1981).  Wright, Miller  & Cooper suggest that control is enough if "the nonparty has  the actual measure of control or opportunity to control that  might reasonably be expected between two formal coparties." Id. at 430, citing Jones v. Craig, 212 F.2d 187 (6th Cir. 1954). Courts have occasionally hinted that privity as ordinarily  conceived might justify application of collateral estoppel in  the dual sovereignty context, but, finding privity requirements unmet, have not reached the issue.  See United States  v. Davis, 906 F.2d 829, 834-35 (2d Cir. 1990);  United States  v. Parcel Land at 5 Bell Rock Road, 896 F.2d 605, 610 (1st  Cir. 1990) (Breyer, J.).  Because double jeopardy is a constitutionalized instance of preclusion principles, Ashe v. Swenson, 397 U.S. 436, 445-46 (1970), a privity or control test  represents an obvious candidate as the standard for an exception to the dual sovereignty doctrine.


13
Yet in Bartkus the Court used the terms "sham" and  "tool," which indicate--and have uniformly been understood  by the lower federal courts to indicate--a far more special  relationship than is suggested by the concept of privity or  control, namely a relationship with a strong element of manipulation.  See United States v. Liddy, 542 F.2d 76, 79 (D.C.  Cir. 1976) (reading Bartkus as support for the proposition  that "federal authorities are proscribed from manipulating  state processes to accomplish that which they cannot constitutionally do themselves");  Guzman, 85 F.3d at 827 (emphasizing that the Bartkus exception is limited to situations in  which one sovereign "thoroughly dominates or manipulates  the prosecutorial machinery of another").  An easy case, for  example, might be where a nation pursued a prosecution that  did little or nothing to advance its independent interests,  under threat of withdrawal of American aid on which its  leadership was heavily dependent. But where the United  States simply lends a foreign government investigatory resources, the manipulation moniker is out of the question.  Id.  at 828;  Baptista-Rodriguez, 17 F.3d at 1361.


14
The Court's presumably deliberate non-use of the privity  concept may also have reflected a recognition that under the  dual sovereignty doctrine one sovereign's right to enforce its  criminal law cannot be classified as the same "cause of action"  as another's, and that the double jeopardy bar is more akin to  claim preclusion than to issue preclusion.  Cf. Montana v.  United States, 440 U.S. at 154 (stating that res judicata  applies only to the same cause of action, and a cause of action  vicariously asserted by a nonparty "differs by definition from  that which he subsequently seeks to litigate in his own  right");  but see Richards v. Jefferson County, 517 U.S. 793,  797-802 (1996) (noting that res judicata may bar claims by  privies, but finding application of res judicata a violation of due process on the specific facts before it).  In any event, the  Bartkus Court's selection of one formula precludes our adoption of another.  And here we needn't consider the issue preclusive effects of foreign judgments.


15
The central issue in this case is whether Greece, in prosecuting Rashed, was a tool of the United States and the Greek  trial a sham.  Two facts render Rashed's claim implausible. First, the United States wanted Greece to extradite Rashed,  not to prosecute him.  Greece stood its ground and refused. Rashed acknowledges both the U.S. preference and the Greek  resistance.  He points to what we may loosely call evidence  that the United States threatened Greece with sanctions, but  that evidence itself shows that the threats (if made at all)  were always intended to secure extradition.  See, for example, U.S. Blackmails Greece on Rashid[sic] Matter Through  Aid, Eleftherotypia, May 27, 1989;  New Pressure by the U.S.  for Rashid [sic], Eleftherotypia, Sept. 30, 1989;  Statement on  the Rashid [sic] Case by Efstratios Korakas, Member of  Greek Parliament representing the Communist Party of  Greece and Member of European Parliament as of June  1999.  The stalwart Greek resistance dispels any notion that  Greece had "little or no independent volition" in its proceeding.  Liddy, 542 F.2d at 79 (D.C. Cir. 1976);  United States v.  38 Whalers Cove Drive, 954 F.2d 29, 38 (2d Cir. 1992).


16
Rashed argues that the United States preferred a Greek  prosecution to Rashed's release.  But that the United States  got its second preference over its third is not evidence either  of control or of a sham prosecution, especially where the  United States's first option would have avoided the double  jeopardy problem altogether.  Moreover, the only evidence  Rashed has for the proposition that the United States sought  a Greek prosecution on terrorism charges is unsubstantiated  Greek newspaper stories claiming that "[r]umors have it that  the Americans don't necessarily want Rashid [sic] right now,  provided he stays in prison and is not let free."  U.S.:  Cut  Off Relations with the Arabs!, Pondiki, Feb. 17, 1989.  See  also The Blade--The Americans Find New "Evidence", Pondiki, Feb. 24, 1989.  Had Rashed read the two stories in their  entirety he would have learned that the United States did not want Rashed imprisoned on the terrorism charges.  Rather,  the scuttlebutt offered in the articles is that the United States  wanted a prison guard to plant a knife on Rashed while he  was awaiting extradition and have the Greek courts imprison  him for the separate crime of possession of an illegal weapon.


17
Second, Greece had an undeniable duty under the Montreal  Convention to extradite Rashed.  Montreal Convention, art.  8, 24 U.S.T. at 571.  Once it rebuffed the United States's  extradition request, however, it was bound by the same treaty  to prosecute.  Id., art. 7, 24 U.S.T. at 571.  Rashed's response  is that the United States tricked Greece into arresting him; thus, but for the trick, Greece would never have faced the  dilemma of having to extradite or prosecute.  But even after  the arrest, Greece could have chosen extradition;  yet it  refused to extradite, contrary to the United States' wishes  and in the face of alleged congressional hints of foreign aid  sanctions.


18
Rashed offers other items as clues that Greece was a tool of  the United States.  First, he points to extensive cooperation  between the United States and Greece in his first trial.  Indeed, U.S. assistance was so pervasive that Greece gathered little of the presented evidence independently.  But  Bartkus acknowledges that extensive law enforcement and  prosecutorial cooperation between two sovereigns does not  make a trial by either a sham.  Bartkus, 359 U.S. at 122-23. Indeed, courts have rejected the sham inference in the face of  more far-reaching cooperation than that which occurred between Greece and the United States.  See, for example,  United States v. Padilla, 589 F.2d 481, 484 (10th Cir. 1978)  (rejecting a double jeopardy claim based on successive statefederal prosecutions although state prosecutor was also the  federal prosecutor and the only piece of evidence in the case  was the testimony of a state police officer).  An inference of  sham prosecution from cooperation would be especially weak  where the Montreal Convention applies, for on these facts it  required the United States to afford Greece the maximum  possible assistance.  Montreal Convention, art. 11(1), 24  U.S.T. at 572.  Finally, it would little advance the purposes of  the Double Jeopardy Clause to require that the country more bent on prosecution refuse to cooperate with the other,  forcing the latter to waste its resources in a redundant  investigation.


19
Rashed also argues that Greece had no independent interest in prosecuting him. It is true that none of the offenses for  which Rashed was prosecuted in Greece had any specific link  to Greece, such as it being the site of the offense or the  residence of the victims.  But international law recognizes  stopping terrorism and piracy on (or above) the high seas as  an interest of all nations, an interest strong enough to give  the Greek courts jurisdiction.  Restatement (Third) of the  Foreign Relations Law of the United States, §§ 404, esp.  comment a, and 423 (1987).  Further, Greece had an interest  in abiding by its treaty obligations--here the requirement of  the Montreal Convention, in the event of a refusal of extradition, to prosecute Rashed "without exception whatsoever and  whether or not the offense was committed in its territory." Montreal Convention, art. 7, 24 U.S.T. at 571.


20
The government suggests--and Rashed accepts--that one  possible sign that the United States was using the Greek  prosecution as its "tool" would be an indication that it was  able, through the Greek prosecution, to achieve something it  could not under the U.S. Constitution.  Cf. United States v.  Liddy, 542 F.2d at 79.  Of course a procedural divergence  alone would necessarily give only a weak sign;  states and  nations naturally vary in details of criminal procedure, so a  rule inferring manipulative intent merely from a few prosecutorial advantages in the state or nation that initially prosecutes would gut the dual sovereignty rule.  Similarly, the fact  that dual prosecution is likely to increase the probability of  conviction and the probable aggregate prison sentence is  alone of no consequence, as dual prosecution always has those  effects.  But a prosecutorial advantage, coupled with some  evidence that the United States had helped bring it about, or  that its existence had induced the United States to prefer and  promote the foreign prosecution, might help support the  "tool" inference.


21
All Rashed has to offer on this account is a law, passed by  Greece just before his trial, that had the effect of allowing  him to be tried to a panel of three judges rather than a mixed  jury of three judges and four lay jurors.  Greek Law  1897/1990, art. 12, p 1 (Aug. 11, 1990).  Rashed does not claim  that the United States pressured Greece into adopting the  law, or that the United States saw Rashed's right to a jury  trial as a hurdle to prosecution at home.  Further, the  bedrock fact that the United States sought extradition over a  Greek prosecution is completely inconsistent with an intent to  bypass the U.S. Constitution.


22
Ultimately we find that Rashed has failed to identify evidence that would place his case within the Bartkus "sham  prosecution" exception.  It is possible that, because terrorist  acts committed anywhere are criminal in all countries,  Rashed might find himself confronted with a Sisyphean challenge:  defeating the claims against him in one country only to  have them brought against him in another.  As this is only  his second prosecution, the hazard is speculative.  We leave  the solution to another day.


23
As a corollary to his double jeopardy claim, Rashed seeks  discovery of information related to his "sham prosecution"  allegation.  We see no reason to disturb the district court's  denial of his request.  Because Rashed's defense here relates  not to refutation of the government's case in chief but to  establishment of an independent constitutional bar to the  prosecution, Rule 16(a)(1)(C) of the Fed. R. Crim. P. is  inapplicable.  United States v. Armstrong, 517 U.S. 456, 46263 (1996).  Armstrong requires the defendant, as a condition  of discovery, to adduce "some evidence tending to show the  essential elements of" the defense, not just evidence "material" to that defense as required by Rule 16.  Id. at 462, 470. In Armstrong, which involved a claim of selective prosecution,  the Court explained that this "rigorous standard" was suitable to prevent undue diversion of prosecutorial resources  and disclosure of the government's prosecution strategy.  Id.  at 468.  Discovery into Rashed's claim of "sham" prosecution  presents the same issues of prosecutorial resources and strategy, together with sensitive matters of foreign relations.  Cf.  United States v. Yunis, 867 F.2d 617, 622-23 (D.C. Cir. 1989).


24
In any case, Rashed has not met either the Armstrong or  the Rule 16(a)(1)(C) test.  He doesn't claim that the United  States preferred prosecution to extradition, or that further  discovery would uncover evidence of such a preference.  He  certainly cannot deny that the Montreal Convention required  prosecution once Greece refused extradition to the United  States.  The most that Rashed suggests would be uncovered  in discovery is evidence that the United States, upon learning  that Greece would refuse extradition, encouraged that government to prosecute rather than release Rashed.  But such  evidence, as we have explained, would not sustain a conclusion  that Greece was a tool of the United States.


25
The district court's decision to deny Rashed's motion to  dismiss on grounds of double jeopardy is


26
Affirmed.

