# United States v. Donald Rutherford McVean

> Court of Appeals for the Fifth Circuit · March 10, 1971 · 436 F.2d 1120

URL: https://www.frixlaw.com/law-library/cases/9456417

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Donald Rutherford McVEAN, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** March 10, 1971
- **Citations:** 436 F.2d 1120
- **Precedential status:** Published
- **Opinion:** Concurrence by Simpson
- **Judges:** Wisdom, Coleman, Simpson
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SIMPSON, Circuit Judge
(concurring specially):
I concur without reservation in Parts I and III of the Court’s opinion.
As to Part II, I concur specially on the basis of my special concurrence in United States v. Navarro, 5 Cir. 1970, 429 F.2d 928, 932 . It is unnecessary to repeat the views there expressed. Based on a purchase of STP on May 13, 1968, the state search warrant was issued May 17, 1968, and a state arrest was made that day. The state charges were dismissed as to McVean on November 27, 1968, after pending for more than six months in the state courts. Although the matter is not clearly spelled out in the record here, the inference is clear that the holding in Panzavecchia v. State, Fla.App., 3rd Dist., Fla.1967, 201 *1125 So.2d 762 , was an effective bar to the state proceedings. There were no further proceedings for eleven months, until October 24, 1969, when the U. S. Attorney for the Middle District of Florida filed the information under Title 21, U.S.C., Sections 321 (v), 331(q) (3) and 331 (q) (2) upon which McVean was tried and convicted June 2 and June 3, 1970.
This is another example of the sort of “unabashed forum shopping”, Navarro, supra, 429 F.2d page 932, between state and federal officers, which should not continue to receive judicial sanction. See the special concurrence of Mr. Justice Goldberg in Cleary v. Bolger, 1963, 371 U.S. 392, 404 , 83 S.Ct. 385, 392 , 9 L.Ed.2d 390, 398 . I recognize however that the practice is not forbidden under the present state of the decisions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456417. Public record. Not legal advice.