*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 5/29/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EUGENE VELARDE,

Defendant-Appellant.

No. 96-1013

(D.C. No. 95-CR-261-7)

(D. Colo.)

ORDER AND JUDGMENT*

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.

On July 19, 1995, Defendant-Appellant Eugene Velarde was charged in the United

States District Court for the District of Colorado with conspiracy to possess with intent to

distribute over one kilogram of heroin as well as quantities of marijuana and cocaine in

violation of Title 21 U.S.C. §§ 846 and 841(a)(1). The charged conspiracy was alleged to

have run from about January, 1986 through and including July, 1995. Velarde had

previously been charged and convicted in Adams County, Colorado (Case No. 93CR65)
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of conspiracy to distribute heroin on December 9, 1992. Based on this previous charge

and conviction for conspiracy, Velarde filed a Motion To Dismiss-Double Jeopardy on

December 1, 1995. In his motion, he argued: (1) that the Adams County prosecution

involved the same witnesses as those to be utilized in the federal prosecution; (2) that the

Federal Government participated in the decision to prosecute him in Adams County; and

(3) that the conspiracy charged in the Adams County prosecution was identical to the

present federal prosecution. The district court denied Velarde’s Motion on December 22,

1995, stating that Velarde “failed to set forth any evidence that federal authorities

orchestrated the state process to perpetuate a sham or manipulate state authorities as a tool

for federal aims.” The district court also stated that the federal conspiracy covered dates

which could not have been included in the state case brought in 1993. Velarde now

appeals. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. See Abney v.

United States, 431 U.S. 651, 662 (1977) (a pretrial order rejecting a claim of former

jeopardy is a “final decision” under 28 U.S.C. § 1291).

We review the district court’s legal conclusion on the double jeopardy claim de

novo, and we review the underlying factual findings for clear error. United States v.

Raymer, 941 F.2d 1031, 1037 (10th Cir. 1991). We reject Velarde’s double jeopardy

claim for two reasons. First, the Adams County conspiracy covered a single transaction

on a single date whereas the federal conspiracy charge was much more expansive. We

have held that “[m]erely because some of the overt acts contained in the conspiracy
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counts of the federal indictment encompass defendant’s prior . . . convictions or . . .

charges does not violate double jeopardy.” Raymer, 941 F.2d at 1038 (relying on the

district court’s findings that: (1) the state charges encompassed only a small part of the

defendant’s alleged criminal activities; and (2) that the federal superseding indictment

involved criminal activity of a larger scope). In this case, the federal indictment involves

criminal activity of a larger scope than the previous state prosecution. The federal

indictment charges a conspiracy alleged to have been in effect from January 1986, to July

1995, while the conspiracy charged in Adams County referred to conduct occurring on

one specific date, December 9, 1992. Considering the time frame of the federal

conspiracy charge, the state case brought in 1993 could not have included facts and

events which the federal government seeks to prosecute which occurred in 1994 and

1995. Thus, Velarde is not being put in jeopardy twice for the same offense. See United

States v. Rodriguez-Aguirre, 73 F.3d 1023, 1026-27 (10th Cir. 1996) (Subsequent

prosecution for continuing criminal enterprise based in part on conduct which formed the

basis of a prior Kansas conviction for conspiracy did not constitute double jeopardy

where second prosecution specifically relied upon events allegedly committed by

defendant after Kansas indictment was returned). Moreover, the conspiracy in the federal

indictment involved heroin, as well as marijuana and cocaine, while the state charge

involved only heroin.

Second, even if we were to assume, arguendo, that the prosecutions involve the
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same offense, Velarde has failed to show that he is entitled to the exception to the general

rule that “a subsequent federal prosecution based upon the same conduct as a terminated

state prosecution does not violate the Double Jeopardy Clause of the Fifth Amendment.” 

Raymer, 941 F.2d at 1037. The Supreme Court in Bartkus v. Illinois, 359 U.S. 121, 123-

24 (1959) indicated that there is an exception to this “dual sovereignty” rule when a state

prosecution was “merely a tool” of federal authorities to revive a prosecution barred on

federal constitutional grounds. Relying on this exception, we have recognized that courts

will consider double jeopardy claims where: “(1) federal prosecutors have manipulated

state processes rendering the state prosecution a sham and a cover for an otherwise barred

federal prosecution, and (2) state prosecutors have manipulated federal processes

rendering the federal prosecution a sham and a cover for an otherwise barred state

prosecution.” Raymer, 941 F.2d at 1037 (citations omitted). The defendant has the

“substantial burden of proving that one sovereign is so dominated by the actions of the

other that the former is not acting of its own volition.” Id. The district court found, and

we agree, that in this case Velarde has failed to allege facts sufficient to indicate that

federal prosecutors manipulated state processes to cover for a barred federal prosecution,

or that the state did the same with respect to a barred state prosecution. Essentially

Velarde merely alleges that the federal government was active in the state proceedings

and aided the state authorities in their case. However, “[c]lose coordination between state

and federal authorities, including the employment of agents of one sovereign to help the
1 Velarde also argues on appeal that the district court should have granted his

request for an evidentiary hearing prior to denying his Motion. Whether an evidentiary

hearing is appropriate is in the discretion of the district court. United States v. Gines, 964

F.2d 972, 977 (10th Cir. 1992), cert. denied, 113 S. Ct. 1023 (1993). In light of the fact

that Velarde has not made a showing that he was prosecuted for the same offense in

Adams County as that for which he is indicted by the federal government, we do not

believe that the district court abused its discretion in denying Velarde’s request for an

evidentiary hearing.

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other sovereign in its prosecution, does not implicate the Double Jeopardy Clause.” 

United States v. Real Property Located in El Dorado, Cal., 59 F.3d 974, 987 (9th Cir.

1995). Velarde’s claim here amounts to nothing more than a conclusory allegation of

collusion. United States v. Koon, 34 F.3d 1416, 1439 (9th Cir. 1994), cert. granted, 116

S. Ct. 39 (1995).1

For the forgoing reasons, we AFFIRM the district court’s Order denying

Velarde’s Motion To Dismiss - Double Jeopardy.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge