1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"USA v. Berry" (1999). 1999 Decisions. Paper 8.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/8
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 

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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 

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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 crossdesignated 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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