Sunday, November 13, 2016

Case o' The Week: Double Trouble - Lucas and discovery for (suspected) Petite Policy and Double Jeopardy Violations

State plea of guilt. 
Sentence imposed.
Feds charge same crime
(Ninth indisposed).
United States v. Lucas, 2016 WL 6595972(9th Cir. Nov. 8, 2016), decision available here.

Players:  Decision by Judge Tallman, joined by Judges McKeown and Wardlaw. 
  Hard-fought appeal by ND Cal AFPDs Dan Blank and Carmen Smarandoiu.

Facts: Lucas ran after being stopped for BART fare evasion. Id. He fell when tazed: a pistol fell out of his shorts, then a second pistol was found. Id. Lucas pleaded guilty to being a felon in possession in state court, was sentenced, and was scheduled for release on his state sentence. Id. 
  Two weeks before his release date on his state case, he was charged federally with being a felon in possession (same guns, same event). Id. at *2. As soon as he was released from state custody, he was brought into federal court.
  When pressed the AUSA said that she had obtained a Petite waiver. Id. The “important federal interests” were reportedly the fact that the event had taken place in a BART station, and that Lucas “had not received an adequate state sentence.” Id.  
  The defense sought discovery, seeking information that would demonstrate that state and federal authorities colluded in prosecuting Lucas and thereby violated Double Jeopardy. Id. The AUSA refused to disclose; motions to compel were denied by magistrate and district judges. Id. at *3.  

Issue(s): “[Lucas’s] appeal turns on a discovery issue: whether the district court erred by denying his motion to compel information he contends will support a motion to dismiss the federal indictment under the Double Jeopardy Clause of the United States Constitution.” Id. at *1.

Held: “Because Lucas failed to either make the requisite showing of materiality under . . . Rule 16 or adequately challenge the government’s representation that it does not have any Brady material, we affirm.” Id.  
  “In short: Cooperation is constitutional; collusion is not. Impermissible collusion may be found when the prosecutors of one sovereign so thoroughly dominate[ ] or manipulate[ ] the prosecutorial machinery of the other sovereign that the latter retains little or no volition in its own proceedings.” . . . Such collusion may occur when a second prosecution is not pursued to vindicate the separate interests of the second sovereign, but is merely pursued as a sham on behalf of the sovereign first to prosecute.” Id. at *5 (quotations and citations omitted). 
  “Here, the district court properly found that Zone is indistinguishable from Lucas's case and that Lucas failed to make the threshold showing of materiality. Lucas's arguments to the contrary are unpersuasive. The Trigger Lock article that Lucas presented to the district court, like the news articles in Zone, merely describes the cooperation between federal and state authorities in attempting to reduce gun violence in San Francisco.” Id. at *7. 
  “We conclude on this record that, under Zone and the high evidentiary standard in double jeopardy claims, the district court did not abuse its discretion in ruling that Lucas failed to make a sufficient showing of materiality under Rule 16.Id. at *8.

Of Note: In Lucas, the feds targeted a man who already pleaded guilty to the identical offense at the Hall of Justice, and who had already completed his state sentence for the same crime. Turns out the ND Cal USAO has taken this approach in at least five other cases in the last five years. Id. at *7 (discussing AUSA’s report of an informal poll). 
  Judge Tallman assures us that “It is perfectly sensible that federal authorities sought to prosecute Lucas after his comparatively light state sentence for possessing a firearm as a convicted felon.” Id. at *8. State actors – the PD, the DA, and the judge who resolved the first case in good faith -- may disagree. 
  Lucas is a tough read for AFPDs, but an even harder case for our county comrades. How does one advise a client on the merits of a state plea offer, when lurking feds wait to re-charge the same case when the state sentence is done?

How to Use: Does Brady apply to double jeopardy claims? An open question, and one that is (perhaps thankfully) not resolved in Lucas. Id. at 9 & n.9. Lucas’s holding is limited to the insufficiency of the discovery showing – don’t let the case be cited for the proposition that Brady claims do not apply to double jeopardy challenges.
For Further Reading: It is interesting to consider DOJ's Petite policy waiver form, in the context of the Lucas decision. A July 2016 version of the waiver application for AUSAs is available here.

“Double Jeopardy” image from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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