US v. Zone

No. 03-10361 (4-18-05). The Zone defense was that the fedscontrolled a state prosecution for a weapons misconduct conviction thatcould later be used against him in a felon-in-possession charge. This,alleges Zone in this interlocutory appeal, violates double jeopardy. TheSupremes have held, in Barkus v. Illinois, 359 US 121 (1959) that if thestate becomes a mere tool of the feds in prosecuting, then the sham mightlead to a double jeopardy violation. In reaching such a violation, thefeds would have to control, direct, and make the decisions for the state.This is a high burden. So, although the 9th found that it had jurisdictionfor this appeal, and that it could decide a discovery issue related to it,the defendant had not made a prima facie case to trigger discovery on fedinvolvement. basically, the defendant had pointed to public statementsabout a joint task force. Wallace, concurring, would not have foundinterlocutory jurisdiction over the discovery request. Although the defendant lost here, there are some good points. First, thischallenge can be heard interlocutorily. Second, discovery can be part ofthe remedy. Third, federal involvement to such an extent that the state ismerely a sham can implicate double jeopardy. This last point is especiallysignificant in Indian cases, where tribal police usually defer to the FBIand in joint task forces where the feds are basically the show (on theborder?).