well here united states versus jenkin he is about to start trial in the federal district court in at least five of the counts we believe are affected by the prior conviction prior to trial  prior to actually being here counsel filed a motion to dismiss the indictment at least certain counts of the indictment based upon the fact of the berkus exception to the dual sovereignty rule you said at furtherance of a crime of violence right that's correct what's a crime of violence charges a rickety hearing conspiracy runner and there's various counts of murder charges of violence including voters including the murders information with respect to what took place in the you know in the local court these are the the federal government's intervention and what we believe to be the control of the of the prosecution is a m attached to the if a davit were numerous excerpts of transcripts of meetings which counsel had with the trial judge who also expressed her feelings of just tista i suppose is the best way to put it for what was going on for the fact that the state of the state prosecutors had to rely on information from the federal government which was not forthcoming or which was not forthcoming in a timely fashion matter of fact there had been one witness who had testified and who had been cross examined and at a later time with the federal government revealed that there was additional information which was turned over to the state prosecutor and the let's precedent that makes clear that mark is exception applies despite the fact that the federal and state authorities cooperated that they were playing a role in each other's investigations what the law does prosecution had resulted in a favorable disposition for your client and now the feds were trying this to get the second bite but your client as he's pointed out at the start stands convicted and is facing life in prison so whatever reasons the federal government has for looking for further charges against him all they're going to do is prove the charge that he's guilty of murder probably with the evidence from the state but then prove the added elements that are required for the state these federal crimes they were assuming a greater burden how does any of that smack of using the state as a tool or a sham or  mentioned and in the court said this court said nothing prevents a federal prosecution whenever the state proceedings have not be adequately protected the federal interest and they have never been addressed by anybody prosecution but the the federal the federal interest one would think in terms of prosecuting underage jenkinson a state case would have been to put him in jail for the rest of his life which is exactly where he is so the question really comes down to you have a along with a host of other crimes i don't think you can deny that that's a legitimate interest i think your honor that if you look at the at the first count of the indictment which is a record here in charge and you look at the it's interesting because there is a record he conspiracy charge down it's not a substance record tearing but the government chose to put in overt acts which traditionally are not included in a conspiracy going to recruit here in conspiracy because they're not necessary twenty two of the over to x you are over six are not necessary in a rico conspiracy twenty two out of the twenty six over to actually believe that that's the number or the murders which occurred which were the basis for the federal for the state prosecution twenty two out of the twenty six so i think it could hardly be said that there isn't a federal interest in putting this man in jail again for life with you without the ability of a parole a second time when he's already there as a result of the first prosecution sencion out the district court made a finding here that there wasn't an impermissible collusion between the federal and state government sets a finding that i understand the charge of error that you're making is that you were entitled to a hearing so is that what this all reduces to is that we would defer to the district court's judgment except you're saying you were entitled to the hearing that's correct or the appeal direct it does not directly deal with the issue of whether we could show in the district court fit the exception to the dual sovereignty rule applies because we never had the opportunity to show what we needed to show and that raises the question because we have that we wanted to have answered and then we want to have a hearing based upon the fact that we believe that upon the prior counsel's affidavit that a substantial likelihood or a substantial showing had been to support what is a pretty you know expansive fishing expedition expedition into every communication between the federal and state of the art us i mean where we're all you've come forward with  judge sheldon in the negra county court it's clear that something was going on and it's clear that the federal government that was was doing something in order to see which way this prosecution was going to go and i think you're right  can look at it and say which way it was going to go first that's correct and there's a right there's nothing in permissible about that well have their separate interests but they they are making a decision as to who would go case to offer the certificate of conviction in this case against them directly in the federal case and that's an issue that's still up in the year but the question is how much easier does it make the state prosecution if to offer the certificate of conviction i think that there's a big question here and doubt the state proving him guilty beyond a reasonable doubt that's correct that extent i'm not sure you can show any improper action when the believe a substantial showing through the f a david has two things that were happening and control of the state prosecution by the federal authorities we believe that we showed it and we believe that the eight or nine questions that we put to the court were asked the court to put to the government were material to the determination your honor here the bottom line is judge and i think that we see it in the brief is if we don't have this ability to do that there is no way that i can think of that a defendant could show that the exception of barca supplies that's the problem here there have been a lot of courts which have which you have ordered the at the hearing be conducted or that these questions be answered and that's traditionally because it's based on just about nothing and one of the cases cited by the government the court refused to conduct a hearing or to order anything further because the initial showing was based upon a press release and nothing else this is something that it please the court my name is joseph care chef scared or upset the united states on this appeal setting aside for a moment the jurisdictional issue which we've set forth first in our in our brief the question with regard to the double jeopardy violation of the alleged double jeopardy why lateline you story if you will mr green in left off he says if you can't pose if you can't question the government how are you ever going to establish issue of whether this moment this new york state murder fired that would be part of the week out what element of state i mean you have to have just to satisfy black burka both the federal and the state crimes which have to have an element that the other does not require my understanding of your rico prosecution is that you can approve new york state murder pulling out it's  almost like it's a lesser included offense in your in your rico allegation which does not satisfy blocker one of the one of the rico murder and activity related to the charges have to have an element that the other lacks so what does new york murder require be proved that murder is a rico predicate murder is the violent crime with gun trafficking or any of the others where it's it's predicate doesn't require you to prove what i'm saying judges that the rico conspiracy does not require proof of the murder at all it can be proven and mr jenkins is understand that you don't have to prove it but you if if you say if you say that the murder is an element of the conspiracy then i have no answer to that element of your your guns in violent crime and out it's it's a it's an element of every one of the charges they out well certainly the will judge with regard to the state court murder of well i understand i do understand your status five blocks for i think you satisfied black burger because you have an entirely distinct offense with regard to say count what we're talking about we're talking about theoretically comparing elements here and i understand i understand what you're saying your honor about that yes we have alleged the murders in the in the conspiracy  the and really that's all there was was cooperation between the federal government that's all that was shown between the federal government and so you say and no doubt that's true on the other hand you have a series points out that you mak present he did not participate in the in the in the state prosecution as a matter of fact the say well it doesn't have to be accepted but the judge can accept it and the judge has why discretion in making to the demand for a hearing here the demand for a hearing if the judge and this court has said in a number of context including this that the court has the discretion to make a determination as to whether a hearing is required now now here the judge looked at an affidavit from one of the attorneys that represented mr changes in the state court looked at mr tripp these affidavit mr trippi saying that i look what happened  here and the circumstances the murder occurred on september sixth of two thousand and four by october i'm sorry two thousand and fourteen by october thirtieth of two thousand and fourteen that was ready indicted in the state court and during that period of time mr trippi was involved in another trial in federal court he married he went on his honeymoon i mean all of this all this militates against the determination that the government that the federal government was pulling the strings in state court when they get it done and followed two months or seven weeks after the murder occurred the government's investigation the federal investigation was much more involved  involved certainly in the the commission of these murders in furtherance of the rico conspiracy and by mr jenkins to maintain or to further his  first of all that sentence that he was that stay conviction is not final as your as your honor noted that there is still an appeal pending and if if that if that that conviction stay conviction is reversed on appeal certainly the government interest of the federal government interest in prosecuting this case becomes stronger but it's strong nonetheless you have a situation where you have this rico enterprise you have  frivolous certainly that certainly that doesn't buy this court but i made that determination and as far as i understand it the defense hasn't moved certainly hasn't moved this court to stay the district court pena both seized and prosecutors will hear nothing from them and we certainly heard nothing from the state district attorney with regard to what her position was and what how she perceived what was going on which a hearing w discretion you or i think that you well i think that humanity it's frankly admittedly a case by case determination and what we think is that what we've done here more so than virtually all of the other case of not all the other cases were discovery was denied was that we made a substantial showing more than anybody else is or has really ever done it done previously so i don't think you want or that it can be a bright line or a holding that you can say that this is what you need to prove because i think it would be impossible for the court to do but i do think that the court certainly is in a position to say under these circumstances the shoeing made in this case was substantial enough and certainly the questions that we wanted to answer were turning material