United States v. Angleton

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.

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.”).

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...)

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))).

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).

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).

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-

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.