2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
11-5-2003 

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w . v i l l a no va . e du/thir dc ir c uit_2003/1401 NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT No: 02-3911 UNITED S TATES OF AMERI CA

v. DESHAUNE HARRI GAN, Appellant Appeal from the United State s District Court for the Virgin Isl ands (Crim. No. 00- 559) Distri ct Court: Hon. Raymond L. Finch Submitte d Pursuant to Third Circ uit LAR 34.1(a)

April 29, 2003 Be for e: R OT H, M cK EE and CO W EN , Circuit Judges
. OPI NION (Fil ed: November 5, 2003) M cK EE , Circuit

Judge
. We are ask ed to d eterm ine if th e D istrict Co urt for the D istrict of th e V irgin Island s erred by acce pting D esha une H arrigan ’s guilty plea but fa iling to d ismiss c ertain charges as he and the government had agreed i n the writ ten ple a agreement he reli ed upon in pl ead in g gu il ty . F orth e r eas ons th atfol lo w, we wil l a ffi rm.1 The prosecution was shif ted to t he CriminalDivisi on of the U.S. Department of Justi ce because of t

he victim’s cl ose ti es to t he U.S. Attorney’ s Office. 2 I. Bec ause we write o nly for the parties, it is n ot nec essary to re cite the f acts of this case in de tail . Accordingl y, we will only briefl y menti on those fac ts neces saryto our discussions. Harrigan s hot and kil led Jas on Carroll , the son of the Fi rst Assi stant United States Atto rney for the D istrict of th e V irgin Isla nds. T he T erritorial G over nm ent of the V irgin Islands ther eafter

charged Harri gan with second de gree murder, possessi on of an unlice nsed handgun, pos sessi on of a fire arm during a c rime of vi olence, and possess ion of a fire arm with an obl iter ated serial number . The information was later amended by sub stitutin g fir st de gre e m urd er fo r the orig inal c har ge o f se con d de gre e m urd er. Af ter indic ting H arrigan , the go vern men t of the Virg in Islan ds co ntinue d its investigati on in cooperation wit h the U.S. Department of Jus tice (“DOJ”) 1 and the Office of the V irgin Islands A ttorney General. Th e investigation resu lted in a federal g rand jury indicting H arrigan on f ive charge s: first degree mu rder in violation of 14 V .I.C. § 922(a); pos sess ion of a fire arm wit h an obl itera ted s erial num ber in v iolat ion of 1 8 U .S.C . § 922(k); use a firearm during and in rel ation to a crime of vi olence i n violat ion of 18 U.S.C . § 924(c)(1); po ssession of a loaded firea rm in violation o f 14 V .I.C. § 2253(a ); and possess ion of a fi rearm withi n a school zone in viol ation of 18 U.S.C. § 922(q) . The2 The exact re lati onship i s unclear . The onlyinformation in t he record about why Judge Moore recused hi mself is a footnot e in his Memorandum and O rder dated May 4, 200 1, w hich state s: “A ltho ugh neith er th e de fen dan t no r the pro sec utio n ha d ra ised it, I also not ed my reluctance t o sit on the trial of

Mr. Harrigan s ince the person he i s charged w ith sh oo tin g w as Ja so n C ar ro ll, t he so n o f th e F irs t A ss ist an t U ni ted St ate s A tto rn ey, James C. Carrol l, who res ides on St . Thomas. The parties agreed that Chief J udge Raymond Finch would handl e all further proceedi ngs.” A. 140. 3 defendant was ar

raigned on t

hese charge s in the District Court for the Virgin Isl ands and the case was assigned to Judge Thomas K. Moore. The “local ” charges were t hereaft er dis missed with prejudi ce by t he territorial court. Subsequentl y, Harrigan moved t o dismis s the fede ral charges pendi ng in the distri ct court, ar guing that the DOJ w as precluded from bringing these charges because they had been dism issed w ith preju dice in the territo rial cou rt. Judg e M oore denie d his motion. Moore then recuse d himself f rom the case due to his relat ionshi p with the victim’s father. 2 The case was reass igned to J udge Raymond L. Finc h. In Jan uary 20 02, H arrigan and th e D OJ e xecu ted a p lea ag reem ent. Pu rsuan t to that a greement, Harrigan pl ed guilt y t o murder in t

he second degre e and possess ion of a firearm during a crime of viol ence. The government agreed to recommend consecuti ve
sen tenc es o f 10 years o n th e m urd er ch arg e an d 5 ye ars o n th e fir earm pos sess ion cha rge . Th e go ver nm ent a lso a gre ed to mo ve to dism iss th e rem ainin g ch arg es in the in dictm ent. The court i niti ally

sentence d Harrigan on Octobe r 10, 2002; it resentenc ed him on De cem ber 11, 2 002 . Th is ap pea l foll ow ed. II.4

On appe al, Ha rrigan raises f ive issu es. First, h e argu es that h is due proc ess righ ts were somehow violat ed because the government of t he Virgin I slands and the feder al government conducted a joi nt inves tigat ion and pros ecuti on. Second, he clai ms that t he district co urt cou ld no t try him on charg es that th e V .I. court h ad dis misse d w ith prejudi ce. Thir d, he argue s that his ri ght to a s peedy t

rialwas violated. Fourt h, he argue s that hi s fundamentalright to have an unbi ased jurist hear his case was somehow violated whe n Judge Mo ore abuse d his discretion an d denied his motion to d ismiss befo re recusing h imself. Finally, Harrigan arg ues that the cum ulative effect o f the prosec utor’s abus es un derm ined th e fun dam ental f airnes s of th e trial pro cess a nd th erefo re den ied him th e d ue pr oc es s o f l aw. Ou r review of an y legal issue s that ha ve no t been wa ived b y the guilty plea is plen ary. U.S . v. Ben itz , 21 F.3d 3 7, 38 (3d C ir. 1994). W e review the district court jud ge’ s de cisio n to den y the re que sted recu sal f or a bus e of disc retio n. Se cu ra Comm Consulti ng Inc. v. Securacom Inc. , 224 F.3 d 27 3, 27 8 (3 d C ir. 20 00)
. A. Be cau se H arrig an p led g uilty an d do es n ot ch allen ge th e va lidity of his g uilty ple a, we must firs t consi der the e xtent to which he has waived the issue s he is now attempti ng to ra ise. U.S . v. Pan arella , 277 F.3d 678 , 682 (3d Cir . 200 2), cert. denied , 537 U.S. 819 (2002). A guilty

plea re sult s in a waiver of non-jurisdi ctiona l claims that are not exp licitly pr ese rve d by e nter ing a co ndi tion al gu ilty plea
. Id. at 68 9.5

Ha rrigan ’s wr itten plea agree men t did no t cond ition his g uilty plea on his ab ility to rais e any i ssues on appea l. Si milarl y, he did not attempt to ente r a condit

ional gui lty

plea at his change of plea he aring, nor even sugges t that he inte nded to appealany as pect of his pros ecuti on. Foll owing his pl ea, he waited four months bef ore moving to wit

hdraw his gui lty

plea. Therefore, he clearly “eschew[ed] the benefit of Rule 11(a) (2) ;” a rule that would ha ve all owed him to enter a conditional pl ea of guil ty and there by pr eserve t he issu es h e is n ow attem ptin g to raise
. Pan arella , 277 F.3d at 682. Jurisdic tional c laims s urviv e an u ncon ditiona l guilty plea b ecau se they rela te to “the very power of t

he State to bri ng the defendant into cour

t to ans wer the char ge brought agai nst hi m.” Blackledge v. Perry , 417 U.S. 21, 30 (1974). In Blackledge , a defendant who pled gui lty to a fel ony l ater a llege d that hi s being charged with the felony violated his right under the Double Jeopardy Clause of the Fifth Amendment and the Due Pro ces s C laus e of the F our teen th A me ndm ent. Id. at 23-24. The Supreme Court found that h is du e pr oce ss cla im w as ju risdi ction al an d, th us s urv ived his g uilty ple a. Id. at 30- 31. The Court noted that the prac tica l effect

of the al leged due pr ocess vi olati on and double je opardy violat

ion was the s ame; both vi olati ons operat ed “to pre vent a trialfrom taking pl ace at al l, r ather t han to pres cribe procedural rules that gove rn the conduc t of a tri al. ” Id. A year l ater, the Court r uled that a double jeopardy clai m also survi ves an
unc ond ition al gu ilty plea
. Menn a v. New Y ork , 423 U .S. 61, 62 (197 5) (per curiam ). The government concedes that two of Harrigan’s c laims are juri sdictional and6

theref ore survi ve his gui lty

plea: his cl aim that

due process was denied byprosecut orial
over reach ing, an d his c laim th at collate ral estop pel ba rred p rosec ution o f cha rges in federal cou rt after the territorial court had dism issed them w ith prejudice. Go vernm ent’s Brief at 13. H ow ever, th e gov ernm ent arg ues th at Ha rrigan ’s spee dy trial claim and h is cha lleng e ba sed upo n an alleg edly b iase d ju rist ar e w aive d by th e gu ilty plea
. We agree that

chall enges based upon an a llege d violat ion of the right

to a speedy trial a re n on- juris dicti ona l claim s. Co ffin , 76 F .3d at 4 97; see also U.S. v. Bradford , 113 F.3d 515, 526 ( 5th Cir. 1997) (st ating t hat the defendant' s fail ure to move for dismis sal prior to an entry of a p lea of guilty constitutes a w aiver of the righ t to dismissal for a Speedy Tri al Act vi olati on). Such cl aims go to t he timi ng of a defendant’ s tri al, not the righ t of th e go ver nm ent to brin g a d efe nda nt in to co urt to ans we r ch arg es. Ha rriga n’s c halle nge to Ju dge M oor e’s f ailur e to d ism iss re qui res s om e dis cus sion
. The refor e, we will ass um e that it w as no t waiv ed an d brief ly addres s it. B. We review Judge Moore’s recus al deci sion for abuse of dis creti on. Under 28 U.S .C. § 4 55, dis trict cou rt judge s mu st recu se them selves only w here th eir “im partiality might rea sonablybe questi oned.” The only evidence on t

he record regarding J udge Moore’s decis ion to recuse himsel f sua sponte wa s the af orem ention ed fo otno te in his May memorandum which indicates onlythat he knew the father of the vi ctim. The government’s brief t akes it a step further, indicating t hat Moore had “a profes sional7

acquaint ance” with t

he victim’s fat

her, t he First Assist ant Unite d States Attorneyfor the Distric t of the Virg in Islan ds. W e nee d no t decid e w hethe r Judg e M oore wa s oblig ated to recuse hi mself under t

hese circumstances. Judge Moore clearly did recus e himself in an abundance of cau tion, and Harrigan’s clai m that he is somehow en titl ed to relief because Judg e M oore did n ot recu se him self ea rlier or dis miss th e indic tmen t is frivilou s. In fac t, his claim that Jud ge M oore shou ld hav e dism issed th e cha rges is in cons istent w ith his clai m that the judge shoul d have recuse d himself e arli er. Obvious ly , a j udge with a personalrelat

ionshi p to a defendant ’s famil y can not dismis s cri minal char ges without
crea ting the v ery ap pea ran ce o f im pro prie ty that § 455 wa s en acte d to pre ven t. Harrigan ’s position to the con trary, and his attempt to leverage relief from Ju dge M oore’s
recu sal, e vid enc es m ore des per ation than me rit. C. Ha rrigan next a rgue s that his due p roces s rights w ere vio lated b ecau se the V irgin Island s and the fe deral g over nm ent join tly investiga ted him . The prose cutors abus ed the ir power by goi ng forum shopping t ogether, he argues, and shifting his prosecution to t he dist rict court af ter i t had been pendi ng for months i n the te rri tori al court . He clai ms that their joint effort ga ve the pros ecutors access t o federalresourc es to i nvesti gate the shooti ng, and i t als o pressur ed an ey ewitness into testi fyi ng against Harrigan byforcing3 Harrigan al so argues t hat tr ansferring the c ase to t he dist rict court created a confl ict of interest. How ever, he does not explain this confli ct. Presumably t he conflict arose from the vic tim be ing the son o f the F irst Ass istant U nited S tates A ttorney, w ho u sually pro sec utes thes e ca ses, a nd J udg e M oor e’s re latio nsh ip w ith th e vic tim’ s fa ther
. However, the Cri minal Divi sion of the U.S. Department of Justice t ook over the f ederal prosecution, a nd Judge Moore recused hi mself. There is no reasonable basis f or thi nking there i s a confli ct of i nteres t here.
4 48 U.S.C. § 1612(c ) gives the U.S. Dis tri ct Court f or the Vir gin Isl ands concurr ent juri sdiction over ce rtai n Virgin I slands terri tori al char ges, t herebygiving pr osecutor s the discre tion to b ring tho se ch arges in the te rritorial co urts or in fede ral cou rt. 8 hi m to tes tif y in fr on t o f a fe de ra l g ra nd ju ry re ga rd in g h is o w n p ot en tia l cu lp ab ilit y. 3 Ne ither of th ese we re leg itima te rea son s fo r tran sfe rring the c ase ove r, H arrig an a rgu es. Gen erally, i f criminal cha rges can b e broug ht in more tha n one f orum, pro secutors are free to exerc ise t

heir di scretion in s electing the f orum where theywill bring the charges. 4 Thus, nothi ng prevents prosecut ors from see king dis missalof a state or loca l pro sec utio n in fav or o f a f ede ral f oru m. U.S. v. Melendez , 60 F .3d 4 1, 50 (2d Cir . 199 5). In order to show that

a prosecut or abused this di scretion and the reby violated a defendant’ s due proces s right s, a defe ndant must present “c lear e vidence” t hat the dec ision to p rose cute in a p artic ular for um wa s pre dica ted o n im per mis sible gro und s. U.S. v Armstrong , 517 U.S . 456 , 464 -65 (19 96)
. There is no s uch evidence he re. I t is clearly not improper to sel ect a feder al forum to gain a legit imate pr osecutorial a dvantage, and Harrigan a llege s nothi ng more. He does not even ar gue that

the pros ecutor’ s decis ion to pur sue the charges i n federalcourt r ather than the territorial c ourt was dri ven by an i mpermissi ble moti ve.9 D. Harri gan ’s cl ai m th atth e fe der al cou rt was e st opp ed f

ro m try in g hi m on t

he s ame charg es that th e territoria l court h ad pr eviou sly dismiss ed w ith preju dice is s imilarly meritl ess. Harrigan fi rst c oncedes that the terri tori al and feder al court s general ly have dual sover eignty

over his crimes, but he argue s that he fall s int o an excepti on where a
seco nd p rosec ution is barred beca use th e one sove reign a cts as th e tool o f the o ther in bringi ng a subsequent

prosecution aft er charge s are di smissed. He then argues t hat, even if the prosecutions were conducted by two sovereigns, the te rri tori al court ’s dis missal of the char ges with pr ejudic e coll atera lly estopped t

he federaldist

rict court fr om proceeding. We agree that

a subsequent

federal prosecution is barred when it is merel y a pl oy for brin gin g w hat is reall y just an oth er sta te pr ose cutio n. Bar tkus v. Illin ois , 359 U.S. 121, 123 -24 (1 959 ). Ho we ver, the exce ption p reclud ing a s ubse quen t fede ral pro secu tion is not trigg ered m erely bec ause state an d fed eral pro secu tors’ of fices w ork to gethe r to inv estig ate a cas e. Id. Harrigan’ s prosecut ion is merelyan example of the cooperation common among prosecutors with concurrent jurisdi ction. Harrigan offe rs two case s to support his clai m that a “di smissalwith prej udice” for eve r pre clud es th e go ver nm ent f rom rep rose cutin g a c ase . Dawsey v. Government of the Virgin Islands , 931 F.Supp. 397, 402 (D.V.I . 1996); and Rin ald i v. U .S., 434 U.S. 22, 29 (1977). However, neither case i nvolves t he effect of

such a dis missalon a prosecution in a dif ferent juri sdiction. Rather, t

hey di scuss courts’ power to deny gover nment10

motions to d ismiss charge s under F ed. R. C rim. P. 48(a). He also cites to American Juris prudence Second, which states that “the State’s appropri ate re medy aft er [a di smissal with prej udice] i s to appealrather than reque st re consider ation of the court ’s order .” 21 Am. Jur. 2d, Criminal Law § 778 (1998). This i s true , but i t say s nothi ng about the federalgovernment’s right to prose cute base d on the same fact s that supporte d crimina l charges in the “terri torial” court s. Harrigan’ s finalargument on this i ssue is a bit garbled. He seems to be argui ng that no c harge dis missed with prejudi ce in the terr itorial c ourt can be brought i n federal district court because the latter’s jurisdiction is derived from the territorial court’s jurisdictio n. A lthoug h H arrigan does not sa y so, we believ e that h e is refe rring to juri sdiction granted to feder al court s under 48 U.S. C. § 1612(c), which effecti velygives prosecut ors the discr etion to bring cer tain Virgin Isl ands ter

rit orialcharges i n the territo rial c our ts or i n fe der al co urt. However, a dismi ssal wit h prejudi ce in a l ocal, state or ter rit orialcourt does not necessarily have a p reclusive effe ct on a sub sequen t prosecution in f ederal cou rt. Where a def enda nt is ind icted in two cour ts with conc urren t jurisdictio n, a dism issal w ith prejud ice o nly ba rs re- pro sec utio n in the c our t dism issin g th e ch arg es. See, e. g., U. S. v. Lindsey , 47 F.3d 440, 444 (D.C. Cir. 1995), vacated on other grounds sub nom . Robinson v. U.S., 516 U.S. 10 23 (199 5). Here, the defendant was i ndicte d by the federalgovernment befor e any t rialin the5 Harrigan al so clai ms that t he cumulati ve effect of the abuses he has ident ifie d denied due p roces s. Sinc e w e con clude there w ere no such abus es, w e nee d no t addre ss this cl ai m. 11 territorial c ourt. The territorial prosecutor then asked t

he territorial c ourt t o dismis s the cha rge s, an d ac qui esc ed to a dis mis sal w ith p reju dice
. IV. For allof the above r easons, we will affi rm the dis tri ct court ’s judgment of sentence and conviction. 5

TO THE CLERK OF THE CO URT:

Please fi le the foregoing Opini on.

/s/ Theodore A. McKee Circuit

Judge