United States v. Mardis

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0089p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 09-5696

v.

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Defendant-Appellant. -

DALE MARDIS,

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 08-20021-001—Bernice B. Donald, District Judge.

Argued: March 10, 2010

Decided and Filed: March 31, 2010

Before: MARTIN, SILER, and MOORE, Circuit Judges.

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COUNSEL

ARGUED: Howard B. Manis, MANIS & SALOMON, PC, Memphis, Tennessee, for

Appellant. April J. Anderson, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee. ON BRIEF: Howard B. Manis, MANIS & SALOMON,

PC, Memphis, Tennessee, Blake Ballin, BALLIN BALLIN & FISHMAN, PC, Memphis,

Tennessee, for Appellant. Linda F. Thome, Jessica Dunsay Silver, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. Dale Mardis appeals the district court’s

denial of his motion to dismiss the federal indictment brought against him. The motion

alleged a violation of the Double Jeopardy Clause of the Fifth Amendment because the

federal indictment was brought subsequent to his entering a nolo contendere plea in a

Tennessee state court on a related charge. He argues that the dual sovereignty doctrine must

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be re-examined as federal and state authorities have become so intertwined that they are

functionally indistinguishable as separate sovereigns. Alternatively, he argues that the federal

prosecution should be barred under the “sham prosecution” exception to dual sovereignty

and that public policy requires that the indictment be dismissed.

For the reasons set forth below, we AFFIRM the decision of the district court.

I.

In 2001, a federal grand jury in the Western District of Tennessee convened to

investigate the disappearance of Mickey Wright, a Memphis and Shelby County Codes

Enforcement Officer. A task force comprised of federal and local law enforcement agencies

uncovered evidence indicating that Wright disappeared on April 17, 2001, and that his last

known location was on property owned by Mardis in Memphis, where Wright appears to

have written a “courtesy” citation. Wright’s burned-out truck, badge, and identification card

were found in Mississippi; his body was not recovered.

The 2001 federal grand jury, which heard evidence on charges of arson of a motor

vehicle, interstate transportation of a vehicle, and a firearms charge, ultimately did not return

charges against any individual, though Mardis was called to testify. The matter was further

investigated by state authorities while federal prosecutors held in abeyance additional efforts

to investigate potential federal charges. However, the federal prosecutors did not formally

close their investigation into Wright’s disappearance. After its investigation, the State of

Tennessee indicted Mardis for first degree murder and sought the death penalty. Mardis was

represented in state court by attorney Howard Wagerman. The state’s lead prosecutor was

Assistant District Attorney General Tom Henderson. In the week before Mardis’ state court

trial, Wagerman and Henderson discussed a possible plea deal and reached a tentative

agreement whereby Mardis would plead nolo contendere to second degree murder, inform

the state as to what happened to Wright’s body, and serve the entirety of a sentence of 13.5

years’ incarceration.

Wishing to resolve all potential charges at the same time, Wagerman contacted

Assistant U.S. Attorney Jennifer Webber and inquired if there were any pending federal

charges that might be brought against Mardis. She indicated to Wagerman that she

No. 09-5696 United States v. Mardis Page 3

possessed a case report relating to a contemplated, but not yet initiated, federal firearms

charge. As a result of Wagerman’s inquiry, Webber called Henderson to ask if he would like

her to request an agreement from her supervisor to add to Mardis’ state plea agreement that

the federal government would not prosecute this federal firearms charge if the state’s plea

agreement increased the sentence. Henderson indicated that he was interested, and the

federal government subsequently agreed that the federal firearms charge would be resolved

if Mardis agreed to an increased sentence of 15 years.

Mardis agreed, and on April 5, 2007, Mardis entered a nolo contendere plea to the

charge of second degree murder in the Criminal Court for Shelby County. He was sentenced

to 15 years in prison with a stipulation that he serve the entire sentence. Wagerman wrote

a note giving the location of Wright’s remains, which does not mention how this information

was obtained, to fulfill the plea agreement.

A subsequent federal investigation commenced under the lead of Joe Everson, a

Shelby County Sheriff’s Deputy and a Special Deputy United States Marshal. Henderson

turned over his file on the Mardis case to the U.S. Attorney’s Office, and Everson was

assigned as a liaison to the federal investigation. A second federal grand jury was impaneled

and returned an indictment against Mardis on January 30, 2008, for a civil rights murder in

violation of 18 U.S.C. § 245, as well as for using a firearm to accomplish the murder in

violation of 18 U.S.C. § 924(j). According to the pending federal indictment, Mardis

murdered Wright on account of the victim’s race and color (Wright was African-American

and Mardis is Caucasian) as well as the victim’s employment by a governmental entity. On

or about March 3, 2008, the federal government filed a notice of certification to prosecute

Mardis under the civil rights statute, 18 U.S.C. § 245.

Mardis moved to dismiss the indictment on the ground that it violated the Fifth

Amendment’s ban on double jeopardy. On June 24, 2008, the district court denied the

motion. United States v. Mardis, No. 08-20021 (W.D. Tenn. June 24, 2009). The court first

declined to reconsider the validity of the dual sovereignty doctrine, finding it to be well-

established in federal case law. The court then found that the dual sovereignty doctrine

applied in this case because it was Mardis’ counsel who had involved the U.S. Attorney’s

Office in plea negotiations and the federal government had not entered into a non-

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prosecution agreement. The court then concluded that the “sham” exception to the dual

sovereignty doctrine did not apply because “the federal government did not intervene into

the state’s prosecution to such an extent as to make the state’s prosecution of [Mardis] a

sham.” (June 24, 2009 Order at 7.)

The district court then found that the state court plea agreement did not preclude a

federal prosecution because, based upon the testimony of both Wagerman and Webber,

Webber’s “involvement in the plea negotiations was limited to the distinct issue of the

federal gun case. She did not discuss disposing of all possible federal charges that might be

brought against [Mardis] in the future.” Id. As the federal government did not prosecute the

federal firearms offense, the district court found that the state plea agreement did not bar the

latest federal prosecution.

Finally the district court found that the federal indictment does not violate the

Department of Justice’s Petite policy, which guides federal prosecutors’ decision on whether

to prosecute a defendant “based on substantially the same act(s) or transactions involved in

a prior state or federal proceeding.” Id. (citing United States Attorneys’ Manual, § 9-2.031

(1997)). The court found that the Petite policy applies only to prosecutions, not to

investigations, and that, as the policy permits “successive or dual prosecutions such as in the

instant matter when federal interests have not been vindicated,” id. at 10, the government did

not violate the policy. The court found that the policy “is not constitutionally mandated and

confers no rights upon the accused.” Id. Mardis timely appealed.

II.

A. Standard of Review

We review de novo a denial of a motion to dismiss on double jeopardy grounds.

United States v. DeCarlo, 434 F.3d 447, 452 (6th Cir. 2006). To the extent that the district

court made factual findings following an evidentiary hearing, those findings may be

overturned only if they are clearly erroneous. Id.

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B. The Dual Sovereignty Doctrine and Sham Prosecutions

The Double Jeopardy Clause states that no person shall “be subject for the same

offen[s]e to be twice put in jeopardy of life or limb . . . .” U.S. Const. amend. V. Usually,

prosecution in both state court and federal court for offenses that would otherwise constitute

the same “offense” under the Fifth Amendment if tried successively in the same forum is

constitutional under the dual sovereignty doctrine. Heath v. Alabama, 474 U.S. 82, 88-89

(1985). “The dual sovereignty doctrine holds that the double jeopardy clause does not apply

to suits by separate sovereigns, even if both are criminal suits for the same offense.” United

States v. Louisville Edible Oil Prods., Inc., 926 F.2d 584, 587 (6th Cir. 1991) (citation and

internal quotation marks omitted).

Mardis first argues that the dual sovereignty doctrine itself should be reexamined in

light of increases in inter-jurisdictional cooperation. However, as there is no basis on which

we could embark upon a re-examination of “the legitimacy of the doctrine’s rigid application

in light of the modern criminal justice system” as Mardis requests, we decline the invitation.

Mardis also argues that the “sham prosecution” exception to the dual sovereignty

doctrine applies in his case because “the actions of the federal and state authorities . . . are

so intertwined that they are indistinguishable as separate sovereigns.” The Supreme Court

suggested a very limited exception to the dual sovereignty doctrine in Bartkus v. Illinois, 359

U.S. 121 (1959), in the context of finding that a state prosecution for the same crime upon

which the defendant had been acquitted in federal court was constitutional under the Fifth

Amendment, as made applicable to the states under the Fourteenth Amendment. Id. at 123.

In Bartkus, the defendant was tried and acquitted by a federal court and a state grand jury

indicted him for the same conduct less than a month later. After the federal acquittal, federal

investigators turned over their evidence and evidence acquired after the acquittal to the state

prosecutors. The federal court also delayed sentencing two accomplices until they had

testified at the state trial. The Supreme Court held that this level of cooperation and

coordination was “conventional practice between the two sets of prosecutors throughout the

country” and that “[t]he state and federal prosecutions were separately conducted [and] that

the prosecution was undertaken by state prosecuting officials within their discretionary

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responsibility and on the basis of evidence that conduct contrary to the penal code of Illinois

had occurred within their jurisdiction.” Id. at 122-23. The Supreme Court articulated the

“sham prosecution” exception in dicta:

[The record] does not support the claim that the State of Illinois in bringing

its prosecution was merely a tool of the federal authorities, who thereby

avoided the prohibition of the Fifth Amendment against a retrial of a federal

prosecution after an acquittal. It does not sustain a conclusion that the state

prosecution was a sham and a cover for a federal prosecution, and thereby

in essential fact another federal prosecution.

Id. at 123-24; see also United States v. Deitz, 577 F.3d 672, 686-87 (6th Cir. 2009) (citing

United States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1984)).

While no court has found that cooperation between sovereigns in the investigation

and the timing and planning of successive prosecutions of an individual for related offenses

violates the dual sovereignty doctrine, it is not impossible that it could occur. One can

imagine a situation in which Sovereign A failed to secure a conviction and therefore takes

its evidence and charges to Sovereign B for another bite at the apple in a way that does

constitute a sham prosecution. Such circumstances, in which Sovereign A pulls the strings

of Sovereign B’s prosecution, may indeed violate the Fifth Amendment’s ban on double

jeopardy.

Here, however, the cooperation and coordination was less than that which took place

in Bartkus, which the Supreme Court found not to constitute a sham prosecution. The

agencies cooperated substantially in their investigations of the crimes and appear to have

coordinated the timing of their prosecutions. While federal and state authorities cooperated

in the investigation of Wright’s disappearance, this is an admirable use of resources that the

courts have found not to be problematic. See, e.g., United States v. Angleton, 314 F.3d 767,

774 (5th Cir. 2002) (holding that the facts that, after the defendant had been acquitted of

murder charges in state court; (1) the district attorney’s office itself had asked the U.S.

Attorney’s Office to investigate the case; (2) a joint task force of FBI agents and local police

officers investigated the crime; (3) two state assistant district attorneys involved with the

state prosecution assisted with the second federal investigation; and (4) FBI agents

interviewed members of the state court jury that acquitted the defendant, did not defeat dual

sovereignty).

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Moreover, based on the record and the testimony of those involved, the state and

federal prosecutions proceeded independently. There is neither evidence that the federal

prosecutor manipulated the state prosecutor nor of the reverse; indeed, Henderson stridently

denied that the U.S. Attorney’s Office had manipulated his prosecution in any way, stating

that “[i]f they had, I would have punched them out and turned them in in that order.” (May

27, 2009 Tr. at 238.) As in Bartkus, there is no evidence that the prosecutions were not

conducted separately.

Thus, the only remaining issue is the level of involvement of the U.S. Attorney’s

Office in the plea negotiations between the state and Mardis. Mardis claims that the “federal

government deliberately interfered with the State prosecution’s plea negotiations and

agreement.” Essentially, Mardis argues that when Webber became involved in the state plea

agreement in any capacity, double jeopardy prohibited future federal claims arising from

these facts.

However, the federal government was only involved at the explicit invitation of

Mardis’ attorney, who called Webber to ask about resolving federal charges against Mardis

through the state plea agreement that he had already concluded with Henderson. It is

disingenuous to suggest that the federal government’s involvement in a state plea agreement

was improper when the defendant himself invited the federal government to participate.

Mardis next claims that the federal government became involved in order to acquire

a plea to second degree murder in the state court and a statement regarding the disposition

of Wright’s body. However, the plea and the statement from Mardis’ attorney were elements

of Mardis’ state court plea agreement well before the involvement of the federal government

in the plea negotiations. As the plea and the statement would have been available to a

subsequent federal prosecution without federal involvement, it is highly implausible that the

U.S. Attorney’s Office became involved in order to acquire this information for their

subsequent federal prosecution.

Finally, Mardis argues that Webber “intentionally misrepresented the existence of

federal charges that could subsequently be brought against” him. However, the evidence on

record does not support this interpretation of events. After Henderson and Wagerman

reached an agreement on the state charges, Wagerman contacted Webber “to determine if

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there were outstanding federal charges that could be disposed of as well.” (June 24, 2009

Order at 6.) Wagerman testified that he did not ask Webber about a universal plea

agreement because he knew that the federal government does not make them available.

Instead, Webber said that he asked her if there were any pending charges and told her that

he had previously called the clerk of court’s office, so Webber believed him to be asking

about both sealed and unsealed indictments against Mardis. Wagerman further testified that

he and Webber “didn’t go into [the question of whether the federal government would

conduct a new investigation with new information] at all” and that he “wasn’t concerned”

about new information arising. (May 27, 2009 Tr. at 76.) Wagerman testified to his belief

that Webber only mentioned the federal gun charge because that was all she anticipated at

the time of the call, a belief supported by the record as the only charge recommended in the

case report was a state charge of first degree murder. Webber testified that she knew of no

evidence presented to the first grand jury regarding racial motivation and that the only

charges under consideration when she spoke with Wagerman were interstate transportation

of a motor vehicle and arson, and also a firearms charge, which the government chose not

to pursue. Additionally, when speaking with Henderson about a potential change to the state

plea agreement to take into account a federal charge, Webber asked Henderson whether he

was interested in having her go to her supervisor about this offer. Thus, Webber did not

mislead Wagerman or Mardis during her involvement in the state plea agreements and her

actions did not undermine Henderson’s freedom to prosecute Mardis in state court as he saw

fit.

The facts of this case do not rise to the level of a “sham prosecution” so as to qualify

for the exemption to the dual sovereignty doctrine.

C. Public Policy and the Petite Policy

Mardis argues, citing no authority, that public policy requires dismissal of the federal

indictment. He suggests that permitting the federal prosecution “will undermine both the

integrity of the federal government and public confidence in the federal criminal justice

system.” He further claims that he has a “right to have his trial completed by a particular

tribunal” and to avoid the stress of a federal trial after having entered a plea specifically to

avoid a state court trial, that his case is over-publicized, and that he would never have pled

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nolo contendere had he known that he would be tried again in federal court. Essentially, he

argues that the dual sovereignty doctrine is against public policy. As the doctrine is well-

established federal law, this argument is unpersuasive.

Mardis further claims that the government violated its own Petite policy in choosing

to prosecute him, which he contends constitutes a violation of due process. The Petite

policy, which derives its name from Petite v. United States, 361 U.S. 529 (1960), provides:

“No Federal case should be tried when there has been a State prosecution for substantially

the same act or acts without a recommendation having been made (to and approved by) the

Assistant Attorney General demonstrating compelling Federal interests for such

prosecution.” United States v. Renfro, 620 F.2d 569, 573 n.2 (6th Cir. 1980). As Mardis

concedes, the Petite policy “is not constitutionally mandated and confers no rights upon the

accused.” Id. at 574 (citing United States v. Frederick, 583 F.2d 273 (6th Cir. 1978), cert.

denied, 444 U.S. 860 (1979)). Thus, “the government is the only party with standing to

assert the applicability of the Petite policy in seeking the dismissal of an indictment.” Id.

(citing Rinaldi v. United States, 434 U.S. 22 (1977); Thompson v. United States, 444 U.S.

248 (1980)).

Mardis argues that the government should not be able to “hide behind the Petite

policy without having to explain whether it indeed followed its own internal policy.”

However, he cites no authority for this proposition. He also argues that because he pled nolo

contendere and “accepted punishment without a jury trial,” rather than pleading not guilty

or pleading guilty, his situation is more complicated than most. But “[t]he decision of

whether or not to prosecute . . . is a decision firmly committed by the [C]onstitution to the

executive branch of the government.” Renfro, 620 F.2d at 574. Therefore, “intervention by

the court in the internal affairs of the Justice Department would clearly constitute a violation

of the Separation of Powers Doctrine.” Id. Additionally, the Supreme Court has specifically

rejected a request that it abandon sovereignty analysis and instead balance the relevant

interests to determine whether the Double Jeopardy Clause has been violated. Heath, 474

U.S. at 92. We may not reverse that decision here.

III.

We therefore AFFIRM the decision of the district court.