                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-13-1999

USA v. Berry
Precedential or Non-Precedential:

Docket 98-1140




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Filed January 13, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1140

THE UNITED STATES OF AMERICA

v.

DARREN P. BERRY a/k/a DWIGHT BRAXTON a/k/a
RONALD MARTIN a/k/a DERRICK BRYANT a/k/a
DWAYNE BRITON

Darren P. Berry,
       Appellant.

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 97-CR-00337-1)
District Judge: The Honorable Eduardo C. Robreno

Argued on October 6, 1998

BEFORE: Becker, Chief Judge, Nygaard, and Noonan,*
Circuit Judges.

(Filed January 13, 1999)



_________________________________________________________________

*The Honorable John T. Noonan, Jr., Circuit Judge of the United
States Court of Appeals for the Ninth Circuit, sitting by designation.
       David L. McColgin (Argued)
       Defender Association of Philadelphia
       Federal Court Division
       437 Chestnut Street
       Lafayette Building, Suite 800
       Philadelphia, PA 19106-2414

       Attorney for Appellant

       Terri A. Marinari (Argued)
       Suite 1250
       Office of United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

       Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

This case is before us on interlocutory appeal from the
District Court's denial of defendant Darren Berry's motion
to dismiss on double jeopardy grounds. Berry was charged
with three counts of distributing cocaine base in violation of
21 U.S.C. S 841(a)(1). In his motion to dismiss, Berry
argued that the federal prosecution was barred by his
earlier plea and sentence in state court on charges arising
from the same drug transactions as those charged in the
federal indictment at issue here. The District Court denied
the motion. The only issue on appeal is whether the District
Court erred by doing so. We conclude that it did not and
will affirm.

I.

The District Court did not make specific findings of facts,
but based its decision on the facts as construed by Berry.
The facts favorable to Berry are essentially as follows. In
about December of 1996, Assistant District Attorney Nancy
Winter, who was cross-designated as a Special Assistant
United States Attorney, spoke with Pennsylvania State

                                2
Trooper Carlton Watson and told him that she knew of a
federal cooperator who had information that Watson might
be able to use.1 Watson had previously been designated as
a federal agent in an unrelated case but was not so
designated for the investigation of Berry.

On February 7, 1997, Berry sold crack cocaine to
Watson, who was working undercover. Within a few days,
Watson reported this to Winter. On two later occasions,
Berry again sold crack to Watson. After the third sale, on
February 21, 1997, the Pennsylvania State Police arrested
Berry and charged him in state court. On June 24 of the
same year, Berry pleaded guilty in state court and was
sentenced to four to ten years in prison.

A short while later, as part of an ongoing, cooperative
program between the U.S. Attorney's office and the
Philadelphia District Attorney's office, Berry's case was
reviewed and selected for federal prosecution.2 Berry was
federally indicted on July 16, 1997. Winter had coordinated
and organized the FAST (Federal Alternatives to State
Trials) program with federal authorities for more than six
years and was cross-designated as a Special Assistant U.S.
Attorney for that purpose.

FAST involves a regular review of arrests referred for
state court prosecution by the District Attorney's Office to
determine whether, based on specific criteria, federal
prosecution is appropriate. Cases selected by the state
officials are then reviewed by supervisors at the U.S.
Attorney's Office, who decide which cases are most
appropriate for federal prosecution. An Assistant U.S.
Attorney is then assigned to prosecute the matter.

One of the criteria used to determine whether the case
will be selected for federal prosecution is whether a
defendant, based on his or her prior criminal record, is a
career offender under U.S. Sentencing GuidelinesS 4B1.l.
_________________________________________________________________

1. Winter testified that there were no federal agents available to make
use of the information at the time.

2. We note that the Government followed the Petite policy and requested
and received approval for the federal prosecution from the Attorney
General.

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The quantity of drugs involved is a second factor. Another
general factor is whether the case is related to an ongoing
federal investigation or previously-adopted state
prosecution. Berry met each of these criteria, and as a
result, his case was selected for federal prosecution.

Prosecutor Winter was involved in the selection of Berry's
case for federal prosecution, but the two prosecutors' offices
applied the FAST criteria separately. In other words, the
criteria were used first by the District Attorney's office to
decide whether to present the case to federal authorities,
and then by the U.S. Attorney's Office to decide whether to
prosecute the case at the federal level.

After being selected for federal prosecution, Berry was
sent a "target letter" notifying him that he was under
federal drug investigation and advising him to contact the
Federal Defender's Office if he was unable to afford an
attorney. Berry appeared before a Magistrate Judge who
appointed Federal Defender Leigh Skipper to represent him.
Skipper informed the government of Berry's desire to
cooperate and made an initial "proffer" to the government.
At this meeting the government informed Berry and Skipper
that it intended to present Berry's case to the grand jury.
Skipper requested additional time in which to provide
assistance, and the government agreed to a short delay to
allow Berry an opportunity to earn a downward departure
under section 5K1.l of the sentencing guidelines.

After a short delay, the federal grand jury indicted Berry
on three counts of distributing crack cocaine. At his
arraignment, Berry told the Pretrial Services Officer that he
was surprised that he had been charged federally because
he had pleaded guilty in state court to avoid federal
prosecution. Berry stated that he had been told by the
attorney representing him in state court that it was unlikely
that the federal authorities would pursue his case if he
pleaded guilty in state court. Neither the Government nor
Attorney Skipper was aware, until after Berry's federal
indictment, that Berry had pleaded guilty in state court.

Berry had entered a negotiated guilty plea in state court
and had been sentenced immediately. The Assistant District
Attorney (not Winter) who negotiated Berry's guilty plea

                               4
with his state court defense attorney stated that Berry's
case had been taken out of order at the request of his
defense attorney. The Assistant District Attorney was not
aware that Berry was scheduled for federal prosecution.

II.

It is not disputed that Berry's prosecution by the federal
government for the same acts that his state prosecution
dealt with does not, standing alone, represent a violation of
the Fifth Amendment's proscription against double
jeopardy. See United States v. Wheeler, 435 U.S. 313,
316-17, 98 S. Ct. 1079, 1082 (1978). Nonetheless, Berry
argues that when the evidence is viewed as a whole, it is
clear that the state prosecution was heavily influenced and
controlled from beginning to end by federal authorities,
and, therefore, that his federal prosecution falls within the
narrow "Bartkus exception" to the dual sovereignty rule.
See Bartkus v. Illinois, 359 U.S. 121, 124, 79 S. Ct. 676,
678 (1959). We disagree.

In Bartkus, the Supreme Court alluded to the possibility
that dual federal and state prosecutions might run afoul of
the general rule affirming such prosecutions if one
authority was acting as a surrogate for the other, or if the
state prosecution was merely "a sham and a cover for a
federal prosecution." Id. at 123-24, 79 S. Ct. at 678. Berry
points out that the information about him came from a
federal cooperator, who was referred by Winter, the cross-
designated Special Assistant U.S. Attorney, to State Trooper
Watson, who had recently been sworn in as a federal agent.
Winter and Watson spoke about the investigation and
about the arrest of Berry, and, ultimately, Winter
recommended that Berry be prosecuted federally. Berry
argues that, under these circumstances, the most
reasonable conclusion to be drawn is that the state
prosecution was so influenced and controlled by the federal
authorities that it was merely a "sham and a cover" for the
federal prosecution. Accordingly, Berry claims that his
situation fits the Bartkus exception to the dual sovereignty
rule. Berry argues that the District Court erred by holding
that the federal charge does not violate the Double
Jeopardy Clause and by refusing to dismiss the indictment.

                               5
Not so. Although we have previously recognized the
potential existence of an exception to the dual sovereignty
rule under Bartkus, see United States v. Bell, 113 F.3d
1345, 1351 n.6 (3d Cir.), cert. denied, 118 S. Ct. 447
(1997), we have never applied the exception to overturn a
second state or federal prosecution.3 Even were we to apply
the Bartkus exception to Berry's case, the facts here would
not fit within the scope of the exception because this state
prosecution simply cannot be considered "a sham and a
cover" for a federal prosecution.4

First, the initial investigation was conducted by State
Trooper Watson, who was not acting as a federal agent, and
it involved no commitment of federal resources. In Bartkus,
federal and state officials had cooperated with each other,
and this cooperation was sanctioned by the Supreme Court.
See Bartkus, 359 U.S. at 123, 79 S. Ct. at 678. Although
Trooper Watson had been deputized to act as a federal
agent in another case, he was not performing this role in
Berry's case. The fact that Watson received information
from a federal source does not imply federal control over his
actions.

Second, Berry's case was selected for federal prosecution
based on facts implicating valid federal interests, namely:
_________________________________________________________________

3. At least one circuit has questioned whether the Court even intended
to create an exception in Bartkus. See United States v. Brocksmith, 991
F.2d 1363, 1366 (7th Cir. 1993).

4. Therefore, this is not the occasion for us to decide whether to apply
the Bartkus exception. We also note that we and other Courts of Appeal
have suggested that the growth of federal criminal law has created a
need for the Supreme Court to reconsider the application of the dual
sovereignty rule to situations such as this. See United States v. Grimes,
641 F.2d 96, 101 (3d Cir. 1981) (arguing that "a reexamination of [the
dual sovereignty doctrine] may be in order" because of its questionable
"formalistic conception" and "the recent expansion of federal criminal law
jurisdiction"); see also United States v. All Assets of G.P.S. Automotive
Corp., 66 F.3d 483, 496-97 (2d Cir. 1995) (citing Grimes and noting that
"the [Bartkus] exception's narrowness combine[d] with significant
developments both in substantive federal criminal law and in criminal
law enforcement [indicates] that the entire dual sovereignty doctrine is
in
need of serious reconsideration"). However, this is a matter for the
Supreme Court.

                               6
(1) Berry's criminal history qualified him as a career
offender under the U.S. Sentencing Guidelines, (2) the
amount of crack cocaine being distributed was high, and
(3) the information regarding Berry's drug activit ies
emanated from an individual who had been accepted for
federal prosecution. As earlier noted, these are guideline
criteria for the FAST program, and the ultimate
determination as to federal prosecution was made by the
U.S. Attorney's Office based upon these criteria.

III. Conclusion

In sum, we conclude that the District Court correctly
held that there was no merit to Berry's argument that his
federal prosecution requires an exception to the dual
sovereignty doctrine because it violates the Double
Jeopardy Clause. We conclude that the District Court
properly denied Berry's motion to dismiss and we therefore
affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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