Criminal Action NO. 01-235, Section "N"
January 14, 2002
ORDER AND REASONS
Before the Court are two motions: (1) defendant's Motion to Dismiss on the Grounds of Double Jeopardy and Due Process Violations and Petite Policy Violation; and (2) defendant's Motion to Reveal the Confidential Informant. The Court heard testimony and oral argument on both motions on January 9, 2002. For the reasons that follow, both motions are DENIED.
I. MOTION TO DISMISS
Defendant argues that a trial in this matter will violate the Double Jeopardy Clause of the Constitution because the United States is now prosecuting him for the same acts for which the State of Louisiana prosecuted him prior to its entering a nolle prosequi. This argument fails for two reasons. First, because jeopardy never attached in the state proceeding, the Double Jeopardy Clause is not implicated here. "[J]eopardy does not attach . . . until a defendant is `put to trial before the trier of facts, whether the trier be a jury or a judge.'" Serfass v. United States, 420 U.S. 377, 388 (1975) (quoting United States v. Jorn, 400 U.S. 470, 479 (1971)). "In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn." Id. at 388. Thus, it did not attach, as defendant argues, when the state jury venire was sworn for voir dire prior to entry of the State's first nolle prosequi. "[A] jury is not `empaneled' until all parties have exercised their strikes, and twelve jurors are selected to hear the case." United States v. Juarez-Fierro, 935 F.2d 672, 675 (5th Cir.) (rejecting appellants' argument "that the pre-voir dire swearing of the entire venire caused jeopardy to attach"), cert. denied, 502 U.S. 951 (1991). Nor did jeopardy attach, as defendant argues alternatively, when the state trial judge granted defendant's motion to quash. The defendant "was not then, nor has he ever been, "put to trial before the trier of facts."' Serfass, 420 U.S. at 389 (rejecting petitioner's argument that jeopardy attached when trial judge granted defendant's pre-trial motion to dismiss the indictment). Like the trial judge in Serfass, the state trial judge here "was without power to make any determination regarding [defendant's] guilt," and "[w]ithout risk of a determination of guilt, jeopardy does not attach." Id. at 389, 391.
Second, even if jeopardy had attached in the state prosecution, which it did not, trial in this still would not implicate the Double Jeopardy Clause because the state and federal governments are separate sovereigns. "[B]ased on the `dual sovereignty' concept which underlies the federal union," the Supreme Court has held that "an act of a defendant may be made a crime under both federal and state laws and the defendant may be punished by each sovereign for the same act without offending the Double Jeopardy Clause." United States v. Patterson, 809 F.2d 244, 247 (5th Cir. 1987) (citing Abbate v. United States, 359 U.S. 187, 195 (1959)). Defendant argues that the dual sovereignty doctrine does not apply here because the state prosecution was a "sham" prosecution under Bartkus v. Illinois, 359 U.S. 121 (1959). "In Bartkus, the Supreme Court suggested in dictum that an exception to the dual sovereign doctrine might exist when prosecution by one sovereign is used as a cover or tool for a successive prosecution by another sovereign." United States v. Cooper, 949 F.2d 737, 750 (5th Cir. 1991), cert. denied, 504 U.S. 975 (1992). "Such collusion between state and federal prosecutors could lead to a conclusion that there are not, in fact, two sovereigns, in which case traditional double jeopardy analysis would apply." Id. Toward this end, defendant here presented the testimony of Sanem Ozdural, the Assistant District Attorney who handled most of the state prosecution, as well as two agents of the Drug Enforcement Agency ("DEA"). Having heard the testimony and considered defendant's evidence, the Court finds that defendant has failed to establish a prima facie case that the state prosecution was a mere tool of federal prosecution. See United States v. McKinney, 53 F.3d 664, 676 (5th Cir.) ("defendant has the burden of producing evidence to show a prima facie double jeopardy claim"), cert. denied, 516 U.S. 901, 903, 970 (1995); see also Patterson, 809 F.2d at 247-48 (upholding district court's finding "that the defendants had not discharged their burden of making out a prima facie nonfrivolous claim that the state prosecution was a mere tool of federal prosecution"). Nor is the Court persuaded by defendant's argument that the State's inherent sovereignty should be disregarded because the activities leading to defendant's arrest (the surveillance and plain view discovery of crack cocaine in defendant's car after it crashed into another vehicle) were handled by a joint drug task force of state law enforcement officers working together with federal DEA agents. Nothing in Bartkus supports such a theory. See United States v. Beckford, 211 F.3d 1266, 2000 WL 376155 at *10 (4th Cir.) (rejecting defendant's argument that Bartkus' "sham prosecution" exception to dual sovereignty extends to cases of cooperation and interdependence of federal and state law enforcement authorities on a joint Homicide Task Force), cert. denied, 531 U.S. 889, 907 (2000).
Alternatively, defendant argues that, in filing charges against the defendant, the United States has violated the Petite policy (a Department of Justice policy limiting federal prosecution of an offense previously subject to a state prosecution to cases with compelling reasons). This argument, too, must fail. "Even if the government failed to adhere to the Petite policy in this case," this would be of no avail to the defendant, for "[c]ourts have consistently held that . . . criminal defendants may not invoke [this internal rule] to bar prosecution by the federal govenment." United States v. Harrison, 918 F.2d 469, 475 (5th Cir. 1990); Patterson, 809 F.2d at 248.
II. MOTION TO REVEAL CONFIDENTIAL INFORMANT
In his second motion, defendant seeks an order directing the government to reveal the identity of the confidential informant(s) whose call to DEA agents (describing defendant and his car) instigated the surveillance that led to defendant's arrest.
The Supreme Court examined in Roviaro v. United States, 353 U.S. 53 (1957) the "government's privilege to refrain from disclosing the identity of an informant." See United States v. De Los Santos, 810 F.2d 1326, 1331 (5th Cir.), cert. denied, 484 U.S. 978 (1987). In determining whether to order disclosure, the Court must balance the "public interest in protecting the flow of information" against "the individual's right to prepare his defense." Roviaro, 353 U.S. at 62. "Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the . . . significance of the informer's testimony, and other relevant factors." Id.
The Fifth Circuit "has established a three-part test to determine whether disclosure is mandated." De Los Santos, 810 F.2d at 1331. First, the Court must "evaluate the level of the informant's participation in the alleged criminal activity." United States v. Orozco, 982 F.2d 152, 156 (5th Cir.), cert. denied, 508 U.S. 945 (1993). "The more active the participation, the more likely disclosure will be required." De Los Santos, 810 F.2d at 1331. "On the other hand, if the informant's participation is minimal, it favors nondisclosure." Id. Second, the Court "consider[s] the helpfulness of disclosure to any asserted defense." Orozco, 982 F.2d at 156. "The defendant is required to make a sufficient showing that the testimony would significantly aid the defendant in establishing an asserted defense." De Los Santos, 810 F.2d at 1331. "`[M]ere conjecture or supposition about the possible relevancy of the informant's testimony is insufficient to warrant disclosure.'" Id. (quoting United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979)). Third, the Court evaluates "the government's interest in nondisclosure," which entails consideration of "both the safety of the informant and the informant's future usefulness to the authorities as a continuing confidential source." De Los Santos, 810 F.2d at 1331.
In support of his motion, defendant presented the testimony of two DEA agents, James Sewell and Darrell Lyons, and Sanem Ozdural, a former Assistant District Attorney for the State. Having heard the testimony and considered the defendant's evidence, the Court finds that the government's interest in nondisclosure far outweighs the defendant's interest in disclosure. It is evident from the DEA agents' testimony that the confidential informants continue to play important roles in ongoing DEA investigations. At no time did either informant interact with the defendant, and neither gave the agents any information about the defendant other than a description of the defendant as a black male along with a description of the car he was driving, including the license number. Thus, the informants did not play an important role in the activities underlying the offense. Further, the Court is unpersuaded that the informants' specific identities are critical to or would significantly aid an entrapment defense. Defense counsel admits that he has access to Ms. Bates, the alleged pivotal figure in his alleged entrapment scenario.
Accordingly, for the foregoing reasons, IT IS ORDERED that (1) defendant's Motion to Dismiss on the Grounds of Double Jeopardy and Due Process Violations and Petite Policy Violations is DENIED and that (2) defendant's Motion to Reveal the Confidential Informant is DENIED.