United States v. Venable, 585 F.2d 71, 74 (3d Cir. 1978). Therefore, denial of a motion to dismiss based on double jeopardy is a final and appealable order under the collateral order doctrine.Id.; seealso United States v. Berry, 164 F.3d 844 (3d Cir. 1999) (interlocutory appeal from district court order denying motion to dismiss indictment on double jeopardy grounds). There is a procedural context for the decision on a pretrial motion to dismiss based on a claim of double jeopardy in this Circuit, as described in Venable:
Indeed, under the doctrine of dual sovereignty, dual federal and state prosecutions do not, standing alone, represent a violation of the Fifth Amendment's proscription against double jeopardy. Id. (citing U.S. v. Gricco, 277 F.3d 339, 352 (3d Cir.2002) (citing Abbate v. U.S., 359 U.S. 187, 194, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Ill., 359 U.S. 121, 137, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); U.S. v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922))); U.S. v. Berry, 164 F.3d 844, 846 (3d Cir.1999). The doctrine, articulated by the Supreme Court in Bartkus v. Illinois and Abbate v. United States, specifically recognizes that the state and the federal governments act as โseparate sovereigns, with distinct interests in criminalizing and prosecuting certain conduct.โ
Following that precedent, the Third Circuit has continued to uphold successive state/federal prosecutions in a steady stream of cases. See, e.g., United States v. Wilson, 413 F.3d 382, 390 (3d Cir. 2005); United States v. Gricco, 277 F.3d 339, 352 (3d Cir. 2002); United States v. Berry, 164 F.3d 844, 845-47 (3d Cir. 1999); United States v. Bell, 113 F.3d 1345, 1351 n.6 (3d Cir. 1997); United States v. Pungitore, 910 F.2d 1084, 1105-07 (3d Cir. 1990); United States v. Grimes, 641 F.2d 96, 100-04 (3d Cir. 1981); United States v. Frumento, 563 F.2d 1083, 1085-89 (3d Cir. 1977); United States v. Ortiz-Velez, 328 F. App'x 765, 766 (3d Cir. 2009); United States v. Bibbs, 152 F. App'x 247, 249-50 (3d Cir. 2005); United States v. Harrigan, 80 F. App'x 738, 743 (3d Cir. 2003). Some circuits, however, recognize what has been called the "Bartkus exception" to the dual sovereignty doctrine.
Recognizing Bartkus, this Court has ruled that the dual sovereignty doctrine could not save a successive federal prosecution where it is merely a sham and a cover for another state prosecution. United States v. Berry, 164 F.3d 844, 846-47 (3d Cir. 1999). The present case does not warrant the application of the Bartkus exception.
Seeking to avoid this result, they urge this Court to adopt as law and apply what some have called the โBartkus exceptionโ to the Dual Sovereignty rule. That exception, to the extent it has been recognized by federal courts, stems from language in which the Supreme Court โalluded to the possibility 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 โa sham and a cover for a federal prosecution.โ โ United States v. Berry, 164 F.3d 844, 846 (3d Cir.1999) (quoting Bartkus, 359 U.S. at 123โ24, 79 S.Ct. 676).
"Indeed, under the doctrine of dual sovereignty, dual federal and state prosecutions do not, standing alone, represent a violation of the Fifth Amendment's proscription against double jeopardy. Id. (citing U.S. v. Gricco, 277 F.3d 339, 352 (3d Cir.2002) (citing Abbate v. U.S., 359 U.S. 187, 194, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Ill., 359 U.S. 121, 137, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); U.S. v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922))); U.S. v. Berry, 164 F.3d 844, 846 (3d Cir.1999)." United States v. Perry, 79 F. Supp. 3d 524, 529 (D.N.J. 2015).
In that case, the Supreme Court stated "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 for a federal prosecution." United States v. Berry, 164 F.3d 844, 846 (3d Cir. 1999) (quoting Bartkus, 359 U.S. at 123-24). Here, there is nothing to suggest that the Government acted as a surrogate for the State of New Jersey in prosecuting Yahsi.
Protection from multiple criminal prosecutions for the same offense arises from the Fifth Amendment, which states, at relevant part: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . ." U.S. Const. amend. V. Defendants acknowledge that under the doctrine of dual sovereignty, both the federal and state governments may prosecute a defendant for the same conduct without violating the double jeopardy clause. United States v. Berry, 164 F.3d 844, 846 (3d Cir. 1999) (citing Bartkus v. Illinois, 359 U.S. 121, 124 (1959)). Instead, Defendants argue that the federal prosecution falls within the narrow "Bartkus exception."
Every circuit to consider the issue has held that the cross-designation of a state law enforcement agent or district attorney as a federal official to assist or even to conduct a federal prosecution does not bring a case within the Bartkus exception to the dual sovereignty doctrine. See United States v. Berry, 164 F.3d 844, 845 (3d Cir.), cert. denied, 526 U.S. 1138 (1999); United States v. Trammell, 133 F.3d 1343, 1350 (10th Cir. 1998); United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (9th Cir. 1991), cert. denied, 502 U.S. 1098 (1992); United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir. 1990), cert. denied, 499 U.S. 924 (1991); United States v. Safari, 849 F.2d 891, 893 (4th Cir.), cert. denied, 488 U.S. 945 (1988); see also United States v. Perchitti, 955 F.2d 674, 677 (11th Cir. 1992). The courts have held that one sovereign's request that another instigate a subsequent prosecution does not trigger the Bartkus exception.
However, in Bartkus v. Illinois, the Supreme Court appeared to carve out an exception to this rule, stating that the double jeopardy clause may be violated where a sovereign has brought its prosecution merely as a "tool" of the other, making the second prosecution a "sham and cover" for the first. Bartkus, 359 U.S. 121, 123-24 (1959); United States v. Berry, 164 F.3d 845, 846-47 (3d Cir. 1999); Trammell, 133 F.3d at 1349. To the extent that the federal courts of appeals have recognized the Bartkus exception, they have construed it narrowly.