                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




                                    4
