                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1181
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Western District of Missouri.
                                        *
Eugene Leathers,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 11, 2003

                                  Filed: January 16, 2004
                                   ___________

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
                        ___________

BOWMAN, Circuit Judge.

       Eugene Leathers appeals his May 15, 2002 conviction of being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g) (2000).
Leathers argues that his convictions under § 922(g) were constitutionally deficient
in that his possession of the firearm and ammunition lacked a sufficient impact on
interstate commerce. Leathers also argues that the District Court1 erred in failing to



      1
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
dismiss his indictment on grounds of double jeopardy, vindictive prosecution, and
selective prosecution. We affirm.

       On January 18, 1998, Leathers led police officers on a high-speed pursuit after
shooting Curtis Ford. Leathers crashed the truck he was driving and fled on foot
before being apprehended by police officers. An inventory of the truck turned up
three rounds of live ammunition. The firearm used in the shooting was discovered
the next morning along the route of the chase. These events took place in Jackson
County, Missouri.

       In February 1998, Leathers was charged in the circuit court of Jackson County
with assault in the first degree and armed criminal action. John Quinn, a private
attorney, was appointed as a special prosecutor because of an internal conflict in the
Jackson County prosecutor's office. Initially, Catherine Connelly, also a private
attorney, was retained to represent Leathers, but she withdrew because of
irreconcilable differences with her client. Connelly subsequently accepted
employment as an Assistant United States Attorney for the Western District of
Missouri. A public defender represented Leathers when the case went to trial in state
court on September 25, 2000. The jury found Leathers guilty of second-degree
assault and armed criminal action. After receiving the verdict, the trial judge set
Leathers's bail at $7,500 pending sentencing. Unhappy with the bail amount, Mr.
Quinn stated in court that he would "move things up the street," a reference to
instigating a federal prosecution. In either late November or early December of 2000,
Quinn delivered Leathers's file to the Bureau of Alcohol, Tobacco, Firearms and
Explosives as a referral for federal prosecution. On January 12, 2001, Leathers was
sentenced on the state-court convictions and received a sentence of ten years for
second-degree assault and a concurrent sentence of three years for armed criminal
action.




                                         -2-
      A federal grand jury initially indicted Leathers on January 16, 2001 charging
him with two violations of 18 U.S.C. § 922(g): being a felon in possession of a fire-
arm and being a felon in possession of ammunition. An August 8, 2001 superseding
indictment repeated these charges. On May 15, 2003, a jury convicted Leathers on
both of the charges and the District Court sentenced him under § 922(e)(1) to
concurrent prison terms of 327 months on each count.

                                          I.

       Leathers's first claim is that 18 U.S.C. § 922(g) as applied to him is an
unconstitutional exercise of Congress's power under the Commerce Clause of the
Constitution because his possession of a firearm and ammunition did not have a
significant impact on interstate commerce. Recognizing this Circuit's long-standing
precedent to the contrary, Leathers nevertheless argues that the Supreme Court's
decision in Jones v. United States, 529 U.S. 848 (2000), implicitly overruled the
Supreme Court's decision in Scarborough v. United States, 431 U.S. 563 (1977)
(holding that the felon-in-possession-of-a-firearm statute only requires a showing that
the firearm at one time traveled through interstate commerce) and requires us to
revisit the issue. We already have repeatedly rejected this argument, see United
States v. Gary, 341 F.3d 829, 835 (8th Cir. 2003); United States v. Shepherd, 284
F.3d 965, 969 (8th Cir. 2002), and this panel, as distinguished from the court en banc,
is not at liberty to revisit this issue. See United States v. Wilson, 315 F.3d 972,
973–74 (8th Cir.), cert. denied, 123 S. Ct. 2661(2003). In accordance with our prior
decisions, inasmuch as Leathers's firearm and ammunition were produced out-of-state
and traveled to Missouri through interstate commerce, the jurisdictional requirement
of § 922(g) is satisfied. We thus reject Leathers's interstate-commerce challenge to
his prosecution under § 922(g).




                                         -3-
                                          II.

       Next, Leathers argues that his subsequent federal prosecution violated his
rights under the Double Jeopardy Clause of the Fifth Amendment. Acknowledging
the vitality of the dual-sovereignty doctrine, Leathers nevertheless argues that the
subsequent federal prosecution falls into an exception to the dual-sovereignty
doctrine laid out in the dicta of Bartkus v. Illinois, 359 U.S. 121, 123–24 (1959). Our
review of a district court's double jeopardy determination is de novo. United States
v. Johnson, 169 F.3d 1092, 1095 (8th Cir.), cert. denied, 528 U.S. 857 (1999).

        "The dual sovereignty doctrine provides that although a defendant may not be
prosecuted twice by the same sovereign for the same acts, a subsequent prosecution
by a separate sovereign does not violate the Constitution." Johnson, 169 F.3d at
1096. The State of Missouri and the United States are separate sovereigns in our
federal system and for purposes of the Double Jeopardy Clause. Accordingly,
Leathers's prosecution by the United States after he already had been prosecuted by
the State of Missouri for the same acts was constitutionally permissible unless the
Bartkus exception applies. The Bartkus court, in dicta, suggested that a subsequent
state prosecution that is a "sham and cover" may violate the Double Jeopardy Clause
if the state prosecutors were merely the "tools" of the federal government; i.e., if the
state prosecution was de facto a second federal prosecution. See Bartkus, 359 U.S.
at 123–24 (quoted in United States v. Williams, 104 F.3d 213, 216 (8th Cir. 1997)).
While the dicta in Bartkus addresses a subsequent state prosecution, in this case the
federal prosecution was subsequent to the state prosecution. We have never explicitly
held that the Bartkus exception applies to subsequent federal prosecutions. See
United States v. Basile, 109 F.3d 1304, 1307 (8th Cir.), cert. denied, 522 U.S. 873
(1997). Even if we were to assume without deciding that the Bartkus dicta could
apply to subsequent federal prosecutions, the facts of this case fall far short of
establishing that the federal prosecution of Leathers was a "sham and cover" within
the meaning of Bartkus.

                                          -4-
       Leathers points to three different instances of contact between state and federal
prosecutors to support his contention that the federal prosecution was merely a
de facto state prosecution. First, he argues that the state prosecutor's referral of the
matter to federal prosecutors was the direct cause of the federal prosecution. Thus
he argues that because his federal prosecution would never have occurred but for Mr.
Quinn's referral, the federal prosecutors were not acting independently. This position
is unavailing. A causal connection such as the one shown here does not make a
subsequent federal prosecution a "sham and cover" for a state prosecution. Referrals
and cooperation between federal and state officials not only do not offend the
Constitution but are commonplace and welcome. See Bartkus, 359 U.S. at 123
(describing state and federal cooperation as the standard practice); United States v.
Talley, 16 F.3d 972, 974 (8th Cir. 1994).2 A referral made by a state prosecutor does
not undermine the independence of federal prosecutors, regardless of the state
prosecutor's motives in making the referral. The inquiry is not whether the
prosecution would have taken place but for the referral, but rather whether the state
has "effectively manipulated the actions of the federal government, so that the federal
officials retained little or no independent volition." United States v. 38 Whalers Cove
Drive, 954 F.2d 29, 38 (2d Cir.), cert. denied, 506 U.S. 815 (1992).

     This brings us to the second of the circumstances relied upon by Leathers in
support of his argument for application of the Bartkus exception. In the course of

      2
        Mr. Quinn referred Leathers's case to a program titled Project Felon. Project
Felon is an initiative in the United States Attorney's offices in the Western District
of Missouri and the District of Kansas designed to facilitate cooperation between
federal and state officials to increase the prosecution of felons who possess firearms
in the Kansas City area. See Press Release, Office of the United States Attorney for
the Western District of Missouri, Stephen L. Hill, Jr., "Project Felon" Initiative
Against Gun Crime Proves Successful in Less than Six Months; Gov. Carnahan
Assigns New State Resources to Efforts (Mar 21, 2000), available at URL
http://www.atf.gov/field/kansascity/press_releases/032100proj_felon.htm.

                                          -5-
investigating whether or not to initiate a federal prosecution of Leathers, Assistant
United States Attorney Charles Ambrose phoned Mr. Quinn. During this telephone
conversation Mr. Quinn speculated that Leathers would only receive a sentence of
two and a half years on the state convictions. Leathers argues that Mr. Quinn's
inaccurate estimate of the length of the state sentence improperly influenced the
federal prosecutor. It is difficult to imagine how speculation as to the length of a state
sentence could improperly influence a federal prosecutor's independent assessment
of a case as a candidate for federal prosecution. In any event, because Leathers was
sentenced to ten years on the state convictions prior to his indictment by a federal
grand jury, any underestimate by Mr. Quinn became irrelevant.

       Third, Leathers argues that Ms. Connelly's presence in the United States
Attorney's office for the Western District of Missouri created a conflict of interest that
undermined the federal prosecutor's independence. The Bartkus exception only
applies when a sovereign improperly influences another sovereign. Even if we were
to assume that Ms. Connelly's difficulties with Leathers affected the decision to
prosecute Leathers under federal law (an assumption that is unsupported by any
evidence), the prosecution would not fall within the exception because Ms. Connelly
did not represent Missouri's interests either from her previous position as defense
counsel or from her post in the United States Attorney's office. Furthermore, an
ethical wall3 separated Ms. Connelly from the Leathers case, and the United States
Attorney's Office for the District of Kansas handled the prosecution, thereby
undermining any claim of undue influence resulting from Ms. Connelly's presence
in the United States Attorney's office for the Western District of Missouri. See also
infra at 8.




      3
       Otherwise known as a "Chinese Wall." See Black's Law Dictionary 573 (7th
ed. 1999).

                                           -6-
       In sum, nothing in the record suggests that the federal prosecutors were
anything but independent; thus the dual-sovereignty doctrine applies. Leathers's right
to be free from being placed in jeopardy twice was not violated by his subsequent
federal prosecution for the same acts.

                                         III.

        Leathers also contends that his federal prosecution is an example of vindictive
prosecution that violates his due-process rights under the Fifth Amendment. A
prosecution designed solely to punish a defendant for exercising a valid legal right
violates due process. See Blackledge v. Perry, 417 U.S. 21, 25-26 (1974); United
States v. Graham, 323 F.3d 603, 606 (8th Cir.), cert. denied, 124 S. Ct. 235 (2003).
It is the defendant's burden to show that the prosecution was brought in order to
punish the defendant for the exercise of a legal right. See United States v. Kriens,
270 F.3d 597, 602 (8th Cir. 2001), cert. denied, 535 U.S. 1008 (2002). A vindictive
or improper motive may be proved either by direct or circumstantial evidence.
See United States v. Beede, 974 F.2d 948, 951 (8th Cir. 1992), cert. denied, 506 U.S.
1067 (1993). The defendant's evidentiary burden is a heavy one, and we are mindful
of the broad discretion given to prosecutors in carrying out their duty to enforce
criminal statutes. See United States v. Kelley, 152 F.3d 881, 885–86 (8th Cir. 1998).



       The District Court found that Leathers had not made a sufficient showing of
impermissible motive. Because a finding of vindictiveness vel non can only be made
on the basis of evidence pertaining to the prosecutor's motives, we treat the question
as one of fact and thus review the District Court's ruling for clear error. See United
States v Parham, 16 F.3d 844, 846 (8th Cir. 1994).4


      4
       We realize that there has been some confusion as to the proper standard of
appellate review of district court determinations of vindictive prosecution. Compare

                                         -7-
       Leathers focuses much of his brief on detailing the evidence that shows that
Mr. Quinn, the state prosecutor, referred the matter for federal prosecution because
he was dissatisfied with the bail-bond amount set in the state court. Leathers fails,
however to make a showing that Mr. Quinn's motives can somehow be attributed to
the federal prosecutors in this case. Leathers attempts to use as a basis for inferring
an improper motive the phone conversation between Mr. Quinn and Assistant United
States Attorney Ambrose in which Mr. Quinn speculated that Leathers would receive
a light sentence on his state convictions. However, we have repeatedly stated that a
defendant may be subject to a harsher sentence in federal court than the sentence he
would receive in state court on charges based on the same conduct without
implicating his due-process rights. See Beede, 974 F.2d at 952 (citing United States
v. Turpin, 920 F.2d 1377, 1388 (8th Cir. 1990), cert. denied, 499 U.S. 953 (1991)).
Leathers simply has not come forward with any evidence that the federal prosecutors
were actuated by any impermissible motive.

      Again, Leathers attempts to use the presence of Ms. Connelly in the United
States Attorney's office for the Western District of Missouri as evidence of
impropriety, this time to prove vindictiveness. As we previously noted, there has
been no showing that Ms. Connelly's presence had any effect on the federal
prosecutors' decision to seek an indictment against Leathers. Nothing more need be
said about this meritless point.




Kriens, 270 F.3d at 603 (reviewing de novo a denial of a motion to dismiss an
indictment on vindictive prosecution grounds); Kelley, 152 F.3d at 885 (using an
abuse-of-discretion standard in reviewing a trial court's decision not to hold an
evidentiary hearing on a claim of vindictive prosecution). However, we agree with
Parham that vindictiveness vel non is a question of fact and that the trial court's
determination should be subject to appellate review under the clear-error standard.

                                         -8-
       Leathers further argues that an improper motive may be ascribed to the federal
prosecutors because the decision to seek the Attorney General's authorization for a
waiver of the Petite policy5 was made in the Western District of Missouri by
colleagues of Ms. Connelly. Not only is there no evidence that would allow us to
infer that Ms. Connelly's presence affected the decision to seek the Petite waiver, but
this Court has previously declined to examine the application of the Petite policy for
evidence of vindictive prosecution. See Basile, 109 F.3d at 1308. The Petite policy
is a discretionary policy of the Department of Justice. It does not confer any
substantive rights and its application cannot form the basis for a claim of improper
prosecution. See Kreins, 270 F.3d at 603; United States v. Lester, 992 F.2d 174, 176
(8th Cir. 1993). Leathers's argument on this point lacks merit.

       For the reasons already stated for rejecting Leathers's other arguments, we
reject Leathers's argument that the circumstances of the case give rise to a
presumption of vindictiveness. There being no evidence of improper motive on the
part of any of the federal prosecutors in pursuing federal charges against Leathers, the
vindictive prosecution claim must fail.

                                          IV.

       Leathers also claims that his prosecution was selective and thus violated his
equal-protection rights under the Due Process Clause of the Fifth Amendment. In
order to prevail on a claim of selective prosecution a defendant must show "1) that
he has been singled out for prosecution while others similarly situated have not been
prosecuted for similar conduct and 2) that the government's action in thus singling

      5
       The Petite policy is an internal Department of Justice policy that prohibits a
federal prosecution of a defendant who has been convicted in state court for the same
conduct unless the subsequent federal prosecution is specifically authorized by the
Attorney General. This policy was named after the Supreme Court case that first
described it. See Petite v. United States, 361 U.S. 529 (1960) (per curiam).

                                          -9-
him out was based on an impermissible motive such as race, religion, or the exercise
of constitutional rights." Parham, 16 F.3d at 846.

       Leathers points to the testimony of a federal prosecutor and a federal ATF
agent to support his argument that he was singled out for prosecution. Prosecutor
Ambrose and agent Getty both testified that they could not recall another instance of
federal prosecution on firearm charges after a defendant had been prosecuted and
convicted in state court for the same conduct. Despite the recollections of prosecutor
Ambrose and agent Getty, there have been past federal prosecutions of defendants
previously convicted in state court for offenses that involved the use of firearms. See
e.g., United States v. Garner, 32 F.3d 1305 (8th Cir. 1994), cert. denied, 514 U.S.
1020 (1995); United States v. Talley, 16 F.3d 972 (8th Cir. 1994). Leathers's
argument that others similarly situated have not been federally prosecuted is factually
incorrect. He thus fails the first part of the Parham test.

       Because Leathers fails the first part of the Parham test, and both parts of the
test must be satisfied if a defendant is to prevail on a claim of selective prosecution,
we need not discuss the second part of the test. We do so only for the sake of
completeness. The second part of the Parham inquiry requires a showing of a
constitutionally impermissible motive prompting the prosecution, such as racial or
religious bias or the defendant's exercise of a constitutional right. Here, as with the
vindictive prosecution claim, Leathers failed to show a constitutionally impermissible
motive for his federal prosecution. His claim therefore also fails the second part of
the Parham test. Leathers's claim of selective prosecution in violation of the Due
Process Clause must be, and is, rejected.

      For the reasons stated, we affirm the judgment of the District Court.
                      ______________________________




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