US v. X. D.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to expedite decision [998613235-2]; denying Motion for summary disposition (Local Rule 27(f)) [998613235-3] Originating case number: 2:10-cr-00036-RGD-FBS-1 Copies to all parties and the district court/agency. [998652669].. [11-4287]

Appeal: 11-4287

Document: 26

Date Filed: 08/11/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4287

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
X.D.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:10-cr-00036-RGD-FBS-1)

Submitted:

June 24, 2011

Decided:

August 11, 2011

Before KING, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant.
Neil H. MacBride, United States
Attorney, William D. Muhr, V. Kathleen Dougherty, Richard D.
Cooke, Assistant United States Attorneys, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
X.D. appeals a district court order denying his motion
to

dismiss

argues

the

that

indictment

the

federal

on

double

jeopardy

prosecution

is

a

grounds.

sham

X.D.

prosecution

brought only after Norfolk, Virginia’s Commonwealth’s Attorney
unsuccessfully brought the same charges against him.

We affirm.

An order denying a motion to dismiss an indictment on
double jeopardy grounds is immediately appealable.
United States, 431 U.S. 651, 659-60 (1977).
double jeopardy issues de novo.
F.3d

415,

protects

418

(4th

against

offense.

Cir.

the

However,

2001).

dual

This court reviews

United States v. Studifin, 240
The

subsequent

the

Abney v.

or

Double

Jeopardy

prosecutions
separate

for

Clause

the

sovereigns

same

doctrine

permits a federal prosecution after a state prosecution for the
same offense.

Heath v. Alabama, 474 U.S. 82, 89 (1985).

In

Barkus v. Illinois, 359 U.S. 121, 122-24 (1959), the Supreme
Court

noted

that

a

subsequent

prosecution

by

a

separate

sovereign could be a sham if it was shown that the sovereign was
merely a tool for the sovereign that originally prosecuted the
case.
A
sovereign

subsequent
had

proceedings.”
1990).

“little
In

re

prosecution
or

no

may

be

independent

Kunstler,

914

F.2d

a

sham

volition
505,

517

if

the

in

their

(4th

Cir.

In addition, a sham prosecution may be found if the
2

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sovereign’s decision-making was dominated or controlled by the
other

sovereign

or

if

the

sovereign’s interests.

prosecution

did

not

vindicate

the

See United States v. Montgomery, 262

F.3d 233, 238 (4th Cir. 2001).
The “sham prosecution” exception to the dual sovereign
doctrine is a narrow one.

See United States v. Djoumessi, 538

F.3d 547, 550 (6th Cir. 2008).
does

not

establish

prosecutorial
Similarly,

that

discretion

cooperation

Cooperation between sovereigns

one
to

sovereign

the

between

law

other

has

ceded

its

sovereign.

enforcement

Id.

agencies

is

commendable, and, “without more, such efforts will not furnish a
legally adequate basis for invoking the Barkus exception to the
dual sovereign rule.”

United States v. Guzman, 85 F.3d 823, 828

(1st Cir. 1996).
In this instance, we conclude that X.D. failed to show
that the U.S. Attorney’s Office’s decision to bring criminal
charges against him was not of the Office’s own volition.

There

is no evidence that the State controlled the U.S. Attorney’s
Office decision-making.

Furthermore, the record shows that the

Federal Government has an interest in bringing charges against
X.D. for murder and assaults that allegedly rose from his gang
activity.
Accordingly, we affirm the district court’s order.
deny

the

Government’s

motion

to
3

expedite

or

for

We

summary

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affirmance.

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Page: 4 of 4

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

the

court

and

argument

would

not

aid

the

decisional

process.

AFFIRMED

4