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. e du/thir dc ir c uit_1999/8Filed 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 o f the United States Court of Appeals for the Ninth Circuit, sitt ing 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 ch arged with three counts of distributing cocaine base in v iolation of 21 U.S.C. S 841(a)(1). In his motion to dismiss, Be rry argued that the federal prosecution was barred by h is 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 Cour t denied the motion. The only issue on appeal is whether the District Court erred by doing so. We conclude that it did no t and
will affirm.

I.

The District Court did not make specific findings o f facts, but based its decision on the facts as construed by Berry. The facts favorable to Berry are essentially as fol lows. In about December of 1996, Assistant District Attorney Nancy Winter, who was cross-designated as a Special Assis tant United States Attorney, spoke with Pennsylvania Sta te

2Trooper Carlton Watson and told him that she knew o f a

federal cooperator who had information that Watson might be able to use.1 Watson had previously been designa ted 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 da ys, Watson reported this to Winter. On two later occasi ons, Berry again sold crack to Watson. After the third s ale, on February 21, 1997, the Pennsylvania State Police ar rested 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, coopera tive program between the U.S. Attorney's office and the Philadelphia District Attorney's office, Berry's ca se was reviewed and selected for federal prosecution.2 Ber ry was federally indicted on July 16, 1997. Winter had coo rdinated and organized the FAST (Federal Alternatives to Sta te Trials) program with federal authorities for more t han six years and was cross-designated as a Special Assista nt 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, fede ral prosecution is appropriate. Cases selected by the s tate 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 c ase will be selected for federal prosecution is whether a defendant, based on his or her prior criminal recor d, is a career offender under U.S. Sentencing GuidelinesS 4 B1.l.

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1. Winter testified that there were no federal agen ts 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 f rom the Attorney

General.

3The 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 prosecuti on.

Prosecutor Winter was involved in the selection of Berry's case for federal prosecution, but the two prosecuto rs' offices applied the FAST criteria separately. In other word s, the criteria were used first by the District Attorney's office to decide whether to present the case to federal autho rities, and then by the U.S. Attorney's Office to decide wh ether 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 un der federal drug investigation and advising him to cont act the
Federal Defender's Office if he was unable to affor d an attorney. Berry appeared before a Magistrate Judge who appointed Federal Defender Leigh Skipper to represe nt him. Skipper informed the government of Berry's desire t o cooperate and made an initial "proffer" to the gove rnment. At this meeting the government informed Berry and S kipper that it intended to present Berry's case to the gra nd jury. Skipper requested additional time in which to provi de assistance, and the government agreed to a short de lay to allow Berry an opportunity to earn a downward depar ture under section 5K1.l of the sentencing guidelines.

After a short delay, the federal grand jury indicte d Berry on three counts of distributing crack cocaine. At h is arraignment, Berry told the Pretrial Services Offic er that he was surprised that he had been charged federally be cause he had pleaded guilty in state court to avoid feder al prosecution. Berry stated that he had been told by the attorney representing him in state court that it wa s unlikely that the federal authorities would pursue his case if he pleaded guilty in state court. Neither the Governme nt nor Attorney Skipper was aware, until after Berry's fed eral 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 D istrict Attorney (not Winter) who negotiated Berry's guilty plea

4with his state court defense attorney stated that B erry's

case had been taken out of order at the request of his defense attorney. The Assistant District Attorney w as not aware that Berry was scheduled for federal prosecut ion.

II.

It is not disputed that Berry's prosecution by the federal government for the same acts that his state prosecu tion dealt with does not, standing alone, represent a vi olation of the Fifth Amendment's proscription against double jeopardy. See United States v. Wheeler, 435 U.S. 31 3, 316-17, 98 S. Ct. 1079, 1082 (1978). Nonetheless, B erry argues that when the evidence is viewed as a whole, it is clear that the state prosecution was heavily influe nced and controlled from beginning to end by federal authori ties, 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. C t. 676, 678 (1959). We disagree.

In Bartkus, the Supreme Court alluded to the possib ility 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 fo r a federal prosecution." Id. at 123-24, 79 S. Ct. at 6 78. 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 Stat e 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. Ber ry 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 so vereignty 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 indi ctment.

5Not so. Although we have previously recognized the

potential existence of an exception to the dual sov ereignty 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 over turn a second state or federal prosecution.3 Even were we to apply the Bartkus exception to Berry's case, the facts he re would not fit within the scope of the exception because t his state prosecution simply cannot be considered "a sham and a cover" for a federal prosecution.4

First, the initial investigation was conducted by S tate Trooper Watson, who was not acting as a federal age nt, and
it involved no commitment of federal resources. In Bartkus, federal and state officials had cooperated with eac h other, and this cooperation was sanctioned by the Supreme Court. See Bartkus, 359 U.S. at 123, 79 S. Ct. at 678. Alt hough Trooper Watson had been deputized to act as a feder al agent in another case, he was not performing this r ole in Berry's case. The fact that Watson received informa tion from a federal source does not imply federal contro l over his
actions.

Second, Berry's case was selected for federal prose cution based on facts implicating valid federal interests, namely:

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3. At least one circuit has questioned whether the Court even intended to create an exception in Bartkus. See United State s v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993).

4. Therefore, this is not the occasion for us to de cide whether to apply the Bartkus exception. We also note that we and oth er Courts of Appeal have suggested that the growth of federal criminal law has created a need for the Supreme Court to reconsider the applic ation of the dual sovereignty rule to situations such as this. See Un ited States v. Grimes, 641 F.2d 96, 101 (3d Cir. 1981) (arguing that "a re examination 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 Asset s of G.P.S. Automotive Corp., 66 F.3d 483, 496-97 (2d Cir. 1995) (citing G rimes and noting that "the [Bartkus] exception's narrowness combine[d] wi th significant developments both in substantive federal criminal l aw and in criminal law enforcement [indicates] that the entire dual so vereignty 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 car eer

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 f or federal prosecution. As earlier noted, these are gu ideline 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 correct ly held that there was no merit to Berry's argument th at his federal prosecution requires an exception to the du al sovereignty doctrine because it violates the Double Jeopardy Clause. We conclude that the District Cour t properly denied Berry's motion to dismiss and we th erefore
affirm.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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