                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                 F I L E D
                                                                                December 12, 2002
                         REVISED DECEMBER 13, 2002
                                  In the                                      Charles R. Fulbruge III
                                                                                      Clerk
              United States Court of Appeals
                             for the Fifth Circuit
                                   _______________

                                     m 02-20887
                                   _______________




                            UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                        VERSUS

                           ROBERT NICHOLAS ANGLETON,

                                                        Defendant-Appellant.




                             _________________________

                       Appeal from the United States District Court
                           for the Southern District of Texas

                             _________________________




Before SMITH, BARKSDALE, and                       Robert Angleton was acquitted, in state
  EMILIO M. GARZA, Circuit Judges.              court, of the murder of his wife. A federal
                                                grand jury then indicted him for the same mur-
JERRY E. SMITH, Circuit Judge:                  der. Angleton appeals, on grounds of double
jeopardy, the denial of his motion to dismiss          Doris’s murder.
the indictment. Concluding that the dual
sovereignty doctrine permits a successive pro-            A joint task force of FBI agents and Hous-
secution, we affirm.                                   ton Police Department (“HPD”) officers was
                                                       formed to investigate the murder. The task
                      I.                               force received all the information and evidence
   In April 1997, Doris Angleton was shot to           previously gathered for the state prosecution.
death in her Houston home. At the time, she            The three lead HPD investigators were depu-
was seeking a divorce from her husband, Rob-           tized as United States Marshals, still on the
ert Angleton, a local bookmaker and police             city payroll, so they would have access to files.
informant.                                             The two assistant district attorneys who prose-
                                                       cuted Angleton in the state trial also assisted
   An investigation led police to suspect that         the task force. As part of the investigation,
Roger Angleton, Robert’s brother, was in-              FBI agents interviewed members of the jury
volved. Police developed evidence showing              that had acquitted Angleton.1
that shortly before the murder, Roger had trav-
eled from his home in San Diego, California,              In January 2002, a federal grand jury in-
to Houston, where he used various aliases to           dicted Angleton on three counts. In counts 1
register in different hotel rooms and rent two         and 2, the indictment charges Angleton with
cars. A few days after the murder, he aban-            murder for hire and conspiracy to commit
doned a suitcase containing two guns at an air-        murder for hire, both in violation of 18 U.S.C.
port security checkpoint. He was arrested in           § 1958(a), which prohibits interstate travel or
Las Vegas, Nevada, on unrelated California             the use of instrumentalities of interstate com-
warrants.                                              merce “with intent that a murder be committed
                                                       in violation of the laws of any State” in ex-
   Both brothers were held on suspicion of the         change for consideration. Count 3 charges
murder, and in October 1997 a Texas grand              Angleton with using a firearm in connection
jury returned separate indictments against the         with a crime of violence in violation of
two for capital murder. The indictments al-            18 U.S.C. § 924(c)(1)(A).
leged that Robert had promised to pay Roger
money in exchange for Doris’s murder. While               After an evidentiary hearing, the district
awaiting trial in jail, Roger committed suicide,       court found Angleton unable to establish a pri-
leaving behind a handwritten note professing           ma facie case of double jeopardy and denied
that he alone was responsible for the murder.          his motion to dismiss the indictment. United
                                                       States v. Angleton, 221 F. Supp. 2d 696 (S.D.
    A state petit jury acquitted Robert Angleton       Tex. 2002). After determining, however, that
of capital murder. Six months later, FBI               Angleton’s arguments are not frivolous, the
agents began investigating him for separate of-
fenses stemming from his bookmaking activi-               1
                                                            The joint task force has received one piece of
ties, including tax evasion. The Harris County         new evidence, a tape recording of an interview An-
District Attorney’s Office then contacted the          gleton gave to a writer, Vanessa Leggett. In addi-
United States Attorney’s Office, requesting            tion, federal investigators contend that they have
that it expand the investigation to include            enhanced the quality of a surveillance tape of An-
                                                       gleton that was used at the state trial.

                                                   2
court stayed its proceeding pending the out-              an unsuccessful state prosecution based on the
come of this interlocutory appeal. We have                same conduct, even if the elements of the state
jurisdiction over an appeal, on nonfrivolous              and federal offenses are identical.”3 Angleton
grounds of double jeopardy, of an order deny-             nevertheless argues that the dual sovereignty
ing a motion to dismiss an indictment. Abney              doctrine “relies on a rigid adherence to a
v. United States, 431 U.S. 651, 657-62                    premise that is no longer tenable: that state
(1977).                                                   and federal prosecutors always pursue
                                                          different interests as separate and distinct
                        II.                               sovereigns.” He contends that the rise of co-
    No person shall “be subject for the same              operative federalism and the incorporation of
offense to be twice put in jeopardy of life or            the Double Jeopardy Clause through the Four-
limb.” U.S. CONST. AMEND. V. Double jeo-                  teenth Amendment have eroded the
pardy concerns are implicated where a                     foundations of the dual sovereignty doctrine.
defendant is retried for the same offense
following acquittal. Illinois v. Vitale, 447                                     A.
U.S. 410, 413-15 (1980). Determining wheth-                  The dual sovereignty doctrine derives from
er two offenses are the same offense for                  the common law notion that a crime is an of-
purposes of the Double Jeopardy Clause                    fense against the sovereign.4 “When a
focuses on their statutory elements. We need              defendant in a single act violates the ‘peace
not decide, however, whether the federal                  and dignity’ of two sovereigns by breaking the
prosecution of Angleton constitutes double                laws of each, he has committed two distinct
jeopardy, because we conclude that no                     ‘offenses.’” Heath, 474 U.S. at 87. As a
exception to the dual sovereignty doctrine                sovereign,5 the United States “has the right to
applies to this case in such a way as to call the         decide that a state prosecution has not
federal indictment into question.2                        vindicated a violation of the ‘peace and
                                                          dignity’ of the federal government.” Id. at 93.
                     III.                                 The dual sovereignty doctrine is best
  The dual sovereignty doctrine permits the               understood, then, not as an exception to dou-
United States to “prosecute a defendant after

                                                             3
                                                               United States v. Avants, 278 F.3d 510, 516
   2
     See, e.g., United States v. Basile, 109 F.3d         (5th Cir.) (citing Heath v. Alabama, 474 U.S. 82,
1304 (8th Cir. 1997) (holding that the dual               93 (1985)), cert. denied, 122 S. Ct. 2683 (2002).
sovereignty doctrine permits a successive federal
prosecution after a state acquittal, without                 4
                                                               Note, Popular Sovereignty, Double Jeopardy,
addressing whether the underlying state murder            and the Dual Sovereignty Doctrine, 102 YALE L.J.
charge and § 1958(a) constitute the same offense          281, 290 (1992).
for purposes of double jeopardy); United States v.
                                                             5
Koon, 34 F.3d 1416 (9th Cir. 1994) (applying dual                See McCulloch v. Maryland, 17 U.S.
sovereignty doctrine without addressing whether           (4 Wheat.) 316, 410 (1819) (“[In] America, the
state charges of assault with a deadly weapon and         powers of sovereignty are divided between the
excessive use of force by a police officer were the       government of the Union, and those of the States.
same offenses, for double jeopardy purposes, as the       They are each sovereign, with respect to the objects
deprivation of constitutional rights, 18 U.S.C. §         committed to it, and neither sovereign with respect
242).                                                     to the objects committed to the other.”).

                                                      3
ble jeopardy, but rather as a manifestation of                    Two 1959 Supreme Court decisions bol-
the maxim that where a defendant violates the                 stered Lanza and helped shape the modern
laws of two sovereigns, he commits separate                   view of the dual sovereignty doctrine as a
offenses.6                                                    mainstay of federalism. In Bartkus v. Illinois,
                                                              359 U.S. 121 (1959), the Court decided that a
    The Supreme Court directly embraced the                   successive state robbery prosecution following
doctrine for the first time in United States v.               an acquittal under the federal robbery statute
Lanza, 260 U.S. 377, 382, recognizing that “in                did not deny due process. Key to the decision
determining what shall be an offense against its              was the inapplicability of the Fifth Amendment
peace and dignity [, each sovereign] is exer-                 to the states, id. at 123-29, a point reiterated
cising its own sovereignty, not that of the                   in another decision decided the same day, Ab-
other.” Id. at 382. Before Lanza was                          bate v. United States, 359 U.S. 187, 194
decided, several nineteenth century opinions                  (1959).8
illustrated that even before the rise of modern
“cooperative federalism,” Murphy v.                               In Heath,9 474 U.S. at 88, the Court rec-
Waterfront Comm’n, 378 U.S. 52, 55 (1964),                    ognized that in assessing the validity of the du-
there was concurrent regulation.7 Until Lanza,                al sovereignty doctrine, the “crucial determina-
however, the Court was faced only with                        tion is whether the two entities that seek suc-
threats of successive state-federal                           cessively to prosecute a defendant for the same
prosecutions.                                                 course of conduct can be termed separate sov-
                                                              ereigns.” Where the dual sovereignty doctrine
   6
                                                              has been found inapplicable, it is because “the
     See Heath, 474 U.S. at 92 (“This Court has               two prosecuting entities did not derive their
plainly and repeatedly stated that two identical of-
                                                              powers to prosecute from independent sources
fenses are not the ‘same offence’ within the mean-
                                                              of authority.”10 Id. at 90. The Heath Court
ing of the Double Jeopardy Clause if they are pro-
secuted by different sovereigns.”); United States v.
Lanza, 260 U.S. 377, 382 (1922) (“[A]n act de-
nounced as a crime by both national and state sov-               8
                                                                     Abbate, 359 U.S. at 188-89, upheld a
ereignties is an offense against the peace and dig-           successive federal prosecution for the destruction
nity of both and may be punished by each.”);                  of property where defendants had been acquitted in
Moore v. Illinois, 55 U.S. (14 How.) 13, 20 (1852)            state court. The Abbate Court explicitly refused to
(“The same act may be an offence or transgression             overrule Lanza. Id. at 195.
of the laws of [Illinois and the United States] . . . .
                                                                 9
That either or both may (if they see fit) punish such              Heath applied the dual sovereignty doctrine to
an offender, cannot be doubted.”).                            a case involving successive prosecutions by two
                                                              states. There is no authority suggesting that its
   7
     See Moore v. Illinois, 55 U.S. (14 How.) 13              holding is less relevant in other contexts, such as
(1852); United States v. Marigold, 50 U.S. (9                 successive state-federal prosecutions.
How.) 560 (1850) (discussing the concurrent
                                                                 10
power of the federal and state governments to pun-                  For example, successive prosecutions by fed-
ish counterfeiting); Fox v. Ohio, 46 U.S. (5 How.)            eral and territorial courts are barred, Puerto Rico
410 (1847) (same); Houston v. Moore, 18 U.S. (5               v. Shell Co., 302 U.S. 253, 264 (1937), as are suc-
Wheat.) 1 (1820) (addressing state statute that               cessive prosecutions by municipalities that derive
punished militiamen who failed to answer the                  their power to try defendants “from the same or-
President’s call to service).                                                                       (continued...)

                                                          4
explicitly rejected the notion that applicability        the incorporation of the Fourth Amendment,
of the dual sovereignty doctrine should hinge            permitted federal authorities to use evidence
on an assessment of the separate sovereigns’             obtained illegally by state authorities. In El-
interests. Id. at 92. Rather, if the prosecuting         kins, the Court reasoned that evidence seized
sovereigns are separate, “the circumstances of           illegally by one sovereign could not be turned
the case are irrelevant.” Id.                            over to another sovereign, because “[t]o the
                                                         victim it matters not whether his constitutional
                      B.                                 right has been invaded by a federal agent or by
   Angleton points out that, since Lanza was             a state officer.” Id. at 215.11
decided, the United States has assumed an in-
creased role in the enforcement of criminal                 The dual sovereignty doctrine, however,
law. The dual sovereignty doctrine, however,             exists independently of any interaction be-
has never required that where there is concur-           tween sovereigns; either may prosecute in-
rent regulation, the United States or a state            dependently to vindicate its own interests.
must demonstrate a unique interest not shared            The Supreme Court has said, as recently as
by the other. Heath, 474 U.S. at 92.                     Heath, that the doctrine remains good law.12
                                                         We therefore turn to Angleton’s argument that
   Angleton also accurately observes that                a successive federal prosecution is barred by
Bartkus and Lanza were decided before the                exceptions to the dual sovereignty doctrine.
Double Jeopardy Clause was first applied to
the states in Benton v. Maryland, 395 U.S.                                      IV.
784 (1969). The legal foundations of the dual                Angleton contends that two exceptions to
sovereignty doctrine, however, have been                 the dual sovereignty doctrine bar his federal
firmly rooted in the notion that “[t]he same act         prosecution. He first argues that the nature
may be an offence [sic] or transgression of the          and extent of the state officials’ involvement in
laws” of two separate sovereigns. Bartkus,               his federal indictment justify application of the
359 U.S. at 131 (quoting Moore, 55 U.S. (14              “sham prosecution” exception. Second, re-
How.) at 20).                                            lying on language in Houston v. Moore,
                                                         18 U.S. (5 Wheat.) 1 (1820), he contends that
    Angleton’s argument SSthat incorporation             the federal murder for hire statute’s
of the Fourth and Fifth Amendments has led
the Court to reconsider the constitutionality of
                                                            11
other previously authorized practices in which                  See also Murphy, 378 U.S. at 77
cooperating state and federal prosecutors ac-            (overturning the previously authorized rule that,
complished what the federal government was               before incorporation of the Self-incrimination
unable to do independentlySSis unavailing.               Clause of the Fifth Amendment, compelled self-
Angleton cites the overruling, in Elkins v.              incrimination could be used by a sovereign
                                                         different from the one obtaining the confession).
United States, 364 U.S. 206 (1960), of the
“silver platter doctrine,” a practice that, before          12
                                                               See United States v. Singleton, 16 F.3d 1419,
                                                         1429 n.48 (5th Cir. 1994) (“Even if the
                                                         constitutionality of the ‘dual sovereignty doctrine’
   10
     (...continued)                                      were properly before us . . . we are bound by
ganic law that empowers the State.” Waller v.            Supreme Court precedent upholding the doctrine.”
Florida, 397 U.S. 387 (1970).                            (citing Heath, 474 U.S. 82 (1985))).

                                                     5
incorporation of the Texas capital murder                       For evidence that the federal prosecution is
statute leaves his prosecution without an                    a sham, Angleton points to the involvement of
independent federal interest.                                state authorities in the process leading to the
                                                             federal indictment. He argues that the federal
                       A.                                    government’s failure to investigate the murder
    In Bartkus, 359 U.S. at 123-24, the Court                until contacted by the Harris County District
suggested, in dictum, that there is an exception             Attorney, and the three and one-half year gap
to the dual sovereignty doctrine where prose-                between the state acquittal and federal
cution by one sovereign is used as a cover or                indictment, demonstrate a lack of federal
tool for a successive prosecution by another                 interest. In addition, Angleton claims that the
sovereign. In such a case, collusion between                 formation of a joint federal-state task force,
federal and state officials might blur their dis-            the deputizing of HPD officers as U.S. Mar-
tinction such that the defendant is “effectively             shals, and the interviewing of state jurors sug-
prosecuted twice by the same sovereign.”                     gest that the federal prosecut ion is merely an
United States v. Harrison, 918 F.2d 469, 474                 avenue for the state to retry the case.
(5th Cir. 1990).
                                                                The key, however, is whether the separate
    The Bartkus Court’s failure to identify a                sovereigns have made independent decisions to
particular instance of a sham prosecution may                prosecute,15 or whether, instead, “one
mean that the exception does not exist. Id.;                 sovereign has essentially manipulated another
United States v. Patterson, 809 F.2d 244, 247
n.2 (5th Cir. 1987). Indeed, the close interac-                 14
tion between federal and state authorities in                     (...continued)
                                                             664, 676 (5th Cir. 1995) (rejecting claim that state
Bartkus, which included the federal prosecu-
                                                             authorities purposely failed to include charges later
tor’s decision to “instigate and guide” the suc-
                                                             reported to federal prosecutors); United States v.
cessive state prosecution, suggests that the                 Moore, 958 F.2d 646, 650 (rejecting claim that
sham exception exists, if at all, only in the rar-           successive prosecution was a sham where
est of circumstances. Bartkus, 359 U.S. at                   defendant had committed separate offenses against
165 (Brennan, J., dissenting).13 In cases in                 a federal and state officer); United States v.
which we have recognized the exception as a                  Cooper, 949 F.2d 737, 750-51 (5th Cir. 1991)
possible bar to a successive prosecution, we                 (finding no sham prosecution where there was a
have never found sufficient collusion to justify             short time between a mistaken release from state
its application.14                                           custody and a federal indictment).
                                                                15
                                                                   See United States v. Baptista-Rodriguez, 17
   13                                                        F.3d 1354, 1361 (11th Cir. 1994) (“To fit within
     See United States v. Figueroa-Soto, 938 F.2d
1015, 1019 (9th Cir. 1991) (“As a practical                  the [sham prosecution] exception, the defendant
matter, . . . under the criteria established by              must show that one sovereign was so dominated,
Bartkus itself it is extremely difficult and highly          controlled, or manipulated by the actions of the
unusual to prove that a prosecution by one                   other that it did not act of its own volition.”); In re
government is a tool, a sham or a cover for the              Kunstler, 914 F.2d 505, 517 (4th Cir. 1990)
other government.”).                                         (stating that the sham prosecution exception “may
                                                             only be established by proof that State officials had
   14
        See, e.g., United States v. McKinney, 53 F.3d        little or no independent volition in their
                                        (continued...)       proceedings”) (citation omitted).

                                                         6
sovereign into prosecuting,” United States v.             conclusion that the sovereigns do not have
G.P.S. Auto. Corp., 66 F.3d 483, 495 (2d Cir.             “independent and separate interests.”
1995), or because the state and federal
prosecutor are the same person, United States                In Houston, the Court reviewed the
v. Belcher, 762 F. Supp. 666, 671 (W.D. Va.               constitutionality of a Pennsylvania statute that
1991). The facts of Bartkus demonstrate that              derivatively enforced a federal statute by
the degree of cooperation between federal and             providing sanctions for members of the state
state authorities cannot, by itself, constitute a         militia who failed to answer the President’s
sham prosecution.                                         call to service. The Court stated, in dictum,
                                                          that if the federal and state military tribunals
                        B.                                exercised concurrent jurisdiction, the former
    Angleton contends that Bartkus defined an             prosecution might be pleaded in bar of the
additional class of successive federal-state pro-         other. Id. at 31-32. In Bartkus, however, the
secutions in which the dual sovereignty doc-              Court, 359 U.S. at 130, stated that Houston
trine is inapplicable. He relies on language              could be cited “only for the presence of a bar
from Houston, 18 U.S. (5 Wheat.) 1, later in-             in a case in which the second trial is for a
terpreted in Bartkus, for the proposition that            violation of the very statute whose violation by
“where one sovereign is derivatively enforcing            the same conduct has already been tried in the
a statute of the other by explicitly in-                  courts of another government empowered to
corporating it as a central element of an                 try that question.”17
offense,” a successive prosecution by the
enforcing sovereign is barred. Angleton                      Because Houston involved neither
correctly notes that § 1958(a) incorporates the           successive prosecutions nor a discussion of the
Texas capital murder statute.16 He argues that            dual sovereignty doctrine, its continual
the attempt of the United States derivatively to          relevance is, to say the least, questionable.
enforce the state statute dictates the                    Moreover, Angleton’s argumentSSthat a sov-
                                                          ereign derivatively enforcing the statute of
                                                          another sovereign lacks an independent
   16
      The federal murder for hire statute states in       interest sufficient to justify its successive
relevant part:                                            prosecutionSSwas rejected in Heath, 474 U.S.
                                                          at 82, in which the Court disavowed the
         Whoever travels in or causes another             “uncertain balance of interests approach,” id.
   (including the intended victim) to travel in           at 92.
   interstate or foreign commerce, or uses or
   causes another (including the intended vic-
   tim) to use the mail or any facility in in-
   terstate or foreign commerce, with intent
                                                             17
   that a murder be committed in violation of                   Angleton also cites United States v. Mason,
   the laws of any State or the United States as          213 U.S. 115 (1909), in support of his argument
   consideration for the receipt of, or as con-           that a sovereign cannot derivatively enforce the
   sideration for a promise or agreement to               statute of another sovereign in a successive
   pay, anything of pecuniary value, or who               prosecution. Like Houston, Mason is “neither a
   conspires to do so . . . .                             double jeopardy nor a collateral estoppel holding.”
                                                          United States v. Frumento, 563 F.2d 1083, 1087
18 U.S.C. § 1958(a) (emphasis added).                     (3d Cir. 1977).

                                                      7
    Moreover, the United States is not seeking              So far as Angleton’s argument can be in-
to enforce the state statute under which Angle-         terpreted as requiring a substantial federal in-
ton was acquitted. Instead, Congress has                terest to keep § 1958 within the scope of the
criminalized interstate activities involving mur-       Commerce Clause, it is also foreclosed. We
der for hire. Because Congress has acted                recently confirmed the constitutionality of
within constitutional bounds, United States v.          § 1958(a) in Marek, 238 F.3d at 320,
Marek, 238 F.3d 310, 321 (5th Cir.) (en banc),          interpreting the statute broadly to allow even
cert. denied, 534 U.S. 813, and cert. denied,           intrastate use of a facility of interstate
534 U.S. 813 (2001), it is free to define the           commerce.
crime as it deems proper, United States v.                                    VI.
Kozminski, 487 U.S. 931- 939 (1989), includ-                Angleton argues that collateral estoppel
ing the derivative use of borrowed statutes.            prevents the empaneling of a federal jury to
                                                        decide factual questions already determined by
                       V.                               a state jury. Collateral estoppel, or issue pre-
   Angleton reasons that § 1958(a) should be            clusion, requires that “when an issue of ulti-
interpreted as requiring the United States to           mate fact has once been determined by a valid
demonstrate a “substantial federal interest” be-        and final judgment, that issue cannot again be
fore bringing a successive federal prosecution          litigated between the same parties in any
of an acquitted state murder for hire charge.           future lawsuit.” Ashe v. Swenson, 397 U.S.
He contends that in enacting § 1958(a),                 436, 443 (1970) (emphasis added). Collateral
Congress “anticipated the grave federalism              estoppel is inapplicable here, because the
concerns raised by a successive prosecution             United States and Texas, as separate
under the statute by indicating an intent to            sovereigns, are not the “same party.”
reserve any federal prosecution . . . to cases
raising substantial federal interests.”                     In Ashe, the Court held that collateral es-
                                                        toppel is embodied in the Double Jeopardy
   Angleton’s argument is tantamount to urg-            Clause. Id. at 445. Because that clause does
ing an adoption of the Department of Justice’s          not bar the United States from prosecuting a
“Petite policy,” which permits federal                  defendant for the same conduct after an
prosecutors to obtain authorization to bring a          unsuccessful state prosecution, and because
federal prosecution following a state                   collateral estoppel is embodied in the clause,
prosecution for the same underlying conduct,            collateral estoppel does not bar Angleton’s
where the state proceeding has left “substantial        successive federal prosecution. Because two
federal interests demonstrably unvindicated.”           sovereigns are permitted to prosecute for the
United States v. Jones, 808 F.2d 561, 565 (7th          same crime, “it would be anomalous, indeed,
Cir. 1986). As Angleton concedes, the Petite            if a sovereign were allowed the greater power
policy is not constitutionally mandated,                of reprosecuting individuals for offenses for
because “the Constitution does not prohibit             which they had been acquitted but were denied
successive state-federal prosecutions.” United          the lesser power of proving the underlying
States v. Nelligan, 573 F.2d 251, 254 (5th Cir.         facts of such offenses.” United States v.
1978) (citing Rinaldi v. United States, 434             Tirrell, 120 F.3d 670, 676 (7th Cir. 1997).
U.S. 22, 28 (1977)).
                                                           The order of the district court, denying An-


                                                    8
gleton’s motion to dismiss the indictment, is
AFFIRMED, and this matter is REMANDED
for further appropriate proceedings. As the
government requests, in the interest of expe-
diting this matter, the mandate shall issue
forthwith.




                                                9
