do we have to rely on to import collateral estoppel into this particular little matter and make it a part of double check party or by the same token why isn't this something it's not a double decker jeopardy claim but was the prosecutor in the state case and the one that drafted the federal indictment chose not to appeal the ruling by the state of nevada and now there is no really no different law in the state of nevada than exists circuit so that's that's sort of implied by the briefs but it's not true in the state of nevada they found the supreme court of the state of that found the attempt determination based on that because apparently in the state court the state court judge said it had to be actually a minor it couldn't be right well the court so they could have been element at the state court court but he chose not to appeal now is the fact that the issue is the same and the fact that you have a determination that is allowed to be final because he doesn't appeal that that gives finality to it and that's what triggers  the violation of collateral estoppel in this case under tarkanian you can't have what it allows the government to do is actually engage in sort of a pretty pernicious type of forum shock because the same prosecutors that was involved in this state case the same task force unlike the twenty other cases that have been brought in the state under this particular task force and this was talked about in the hearing unlike all of those this is the only case that was first brought in state court failed in state court then brought again in state court by a grand jury proceeding failed in state court the state the same prosecutor elected not to appeal that but instead went and drafted a federal indictment and went after him federally so what you're allowed to do und er this situation unlike all of the others and there was testimony about the government going after other people bring in an indictment first or going after many other people by going to the state route first oh my god what about the cases where you know i would say i think you have one where there was an acquittal in state court and they brought a federal prosecution there's one case there that was bernhardt and then you also have it's not unheard of  prosecutors in state court loose motion to suppress and i'm in california it's fifteen thirty eight point five or whatever and then they bring this same action in state court in federal court because the evidence isn't going to be suppressed there if the government is involved in the and the problem is it created just oppression then the government might be foreclosed and that the doctor collateral estoppel in this case what is allows the government to do  judge ruled that in this case the state prosecutor was allowed to deal away federal prosecution as part of his ability to tell a state court ple that's hardly separate in fact the only thing that isn't separate in this case is the fact or that is separate is the fact that mr shulman had to go to mr great show and say can prosecute him federally that's the only thing other than that mr shu and judge the state prosecution and then he draft was only one sovereign would have had to  go permission move words of yours he was representing the sole sovereign he would just go do it with me yes but if you're going to give any effective bernhardt and if you look at if you look at bernhard the problem is how close are these two entities that it's not just say that of course he has to have approval of a federal prosecutor that isn't sufficient or else in every case you would be able to have this this th and say maybe i do this then the state is not running the feds well he doesn't have a key to the grand jury room that's the only thing the state prosecutor drafted the indictment the state prosecutor lost the state case the state prosecutor elected not to appeal it and at that point i think you've got a real race to get caught a problem because he says i don't want to appeal the situation i want to the decision by the state prosecutor to not go to the appellate process in this case the state prosecutor affirmatively said i've decided that i'm not going to go to the  process instead i am going to go directly to federal court this is after losing twice in state court but not at the appellate division in other words the prosecutor in this case accepted the yeah i'm sorry i understand your contention but i think i don't fully understand whether you're saying the state was running the federal government or the federal government was running   state because that at least as i'm understanding barca's subject to study it further it's like the supreme court is that that the  my opinion but the bernhardt decision bernhardt case in fact was a state prosecution that was failed that went to the federal court and the federal court sent it back more clearly showing that mr shrew in a state prosecutor made the decisions all along he made the decisions to indict he went all he did is ask mr ratio can i prosecute successive prosecutions by different sovereigns does not implicate the double jeopardy clause but in part gets injected the supreme court hypothesized in nine hundred fifty nine that a circumstance might arise in which one sovereign in those forty seven ensuing years there is not a single reported appellate decision in the united states in which the barkus exception has been applied this case should not be the first one for several reasons three reasons again reasons the panel seems to have touched upon already first jeopardy has not attached in the state court proceeding here no factors that have been addressed by the fact finder that was  dismissed by the court for insufficiency of the in the indictment upon a finding by the trial judge that there must be in fact an actual victim under the age of sixteen and there isn't one so the indictment was insufficient at that point with the express permission of the united states attorney and with immediate supervision by the united states attorney mr she won acting as a special  was permitted to indict the case in federal court we have no former jeopardy so there can't be double jeopardy nothing in the fifth amendment i guess i know that you didn't there wasn't i guess there wasn't a witness to warn an order though i jury wasn't paneled the question i have is and i'm not i think the state court couldn't have gone another round could it i mean you get two bites at the apple in this situation is that is that correct well that you get two filings and then what did the court me finding on the merits that there was no crying well they they made legal finding that there could not have been a crime because the state had not nine and it says jeffrey does not attach without the consideration of some or all of the factual elements in the case and the problem and why they decide then also in that jeopardy had never tash was that the court made quote a purely legal determination about the sufficiency of the indictment without receiving and evaluating evidence and applying it to the question of guilt or innocence and quote that's precisely what we have here but even if you could get around that point there are two other barriers to jurisdiction in this case the first is identical elements because under block berger jeopardy is not implicated if the prior crime and the form a crime if different elements which they do here the existence of an actual minor under the age of sixteen is required by the state it's not required by the federal government and conversely in the federal prosecution you need an interstate nexus which is not required in the state prosecution of the elements of the crime i beg your pardon absent an element of the crime yes your honor and for that reason alone we have no double jeopardy problem here and third and this takes us to most of the matters the panel focused on already  united states attorney's permission to bring the indictment in the first place and also that he had to be immediately supervised by the united states attorney during the course of that litigation those concessions alone take this case out of the park as exception because he can't show given those facts and again there's no contrary evidence that the volition of the united states that's been stripped away by a state prosecutor it hasn't he's had a stand court that's been decided  there are just a few other points i'd like to touch on first of all as i read the colostrum all opinion from the nevada supreme court it does not say that in an attempt scenario you don't need a minor it says that that's an issue for another day because that was not hearing it's quite clear that the united states attorney had in the first instance and at all times maintain control over whether that incitement to comply and beyond that supervision while that case disputed i should add is that mr she won left the district attorney's office to months after the indictment was brought and the united states attorney's office through assistant united states attorneys alone continue prosecuting that case and we do continue prosecuting except this now actually it is because at the hearing they discussed why mr long left and then my last point and this is come up today in this argument and proceeding in federal court without mr ray show he was there alone he drafted the indictment as far as the the immediate supervision of mr ray show the record doesn't really reflect that there was any other than seeking permission  the elements are the same because mr thurber was prosecuted in his count with both loring and the attempt to lure by the nature of the count that was charged against him so under block burker the claims are exactly the same the bernhardt decision i believe is the mirror image of this in mr bernhardt's case the prosecutor the state prosecutor had to get permission of the federal prosecutor just like in this case but he was paid by the state his salary was paid by the state as was mr issue and and i don't see any factual distinction between virgie hard in this case  but we're allowing to happen is in mr service case we're allowing the government to essentially have a cover for a failed state prosecution and in this case and it's clear from the record that this cover the threat of federal prosecution was used repeatedly there could hardly be an assertion that there is independence under this scenario say thank you for your