United States v. Angleton

United States Court of Appeals
Fifth Circuit
F I L E D
December 12, 2002
Charles R. Fulbruge III
Clerk
REVISED DECEMBER 13, 2002
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-20887
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT NICHOLAS ANGLETON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
Before SMITH, BARKSDALE, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Robert Angleton was acquitted, in state
court, of the murder of his wife. A federal
grand jury then indicted him for the same mur-
der. Angleton appeals, on grounds of double

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jeopardy, the denial of his motion to dismiss
the indictment. Concluding that the dual
sovereignty doctrine permits a successive pro-
secution, we affirm.
I.
In April 1997, Doris Angleton was shot to
death in her Houston home. At the time, she
was seeking a divorce from her husband, Rob-
ert Angleton, a local bookmaker and police
informant.
An investigation led police to suspect that
Roger Angleton, Robert’s brother, was in-
volved. Police developed evidence showing
that shortly before the murder, Roger had trav-
eled from his home in San Diego, California,
to Houston, where he used various aliases to
register in different hotel rooms and rent two
cars. A few days after the murder, he aban-
doned a suitcase containing two guns at an air-
port security checkpoint. He was arrested in
Las Vegas, Nevada, on unrelated California
warrants.
Both brothers were held on suspicion of the
murder, and in October 1997 a Texas grand
jury returned separate indictments against the
two for capital murder. The indictments al-
leged that Robert had promised to pay Roger
money in exchange for Doris’s murder. While
awaiting trial in jail, Roger committed suicide,
leaving behind a handwritten note professing
that he alone was responsible for the murder.
A state petit jury acquitted Robert Angleton
of capital murder. Six months later, FBI
agents began investigating him for separate of-
fenses stemming from his bookmaking activi-
ties, including tax evasion. The Harris County
District Attorney’s Office then contacted the
United States Attorney’s Office, requesting
that it expand the investigation to include
Doris’s murder.
A joint task force of FBI agents and Hous-
ton Police Department (“HPD”) officers was
formed to investigate the murder. The task
force received all the information and evidence
previously gathered for the state prosecution.
The three lead HPD investigators were depu-
tized as United States Marshals, still on the
city payroll, so they would have access to files.
The two assistant district attorneys who prose-
cuted Angleton in the state trial also assisted
the task force. As part of the investigation,
FBI agents interviewed members of the jury
that had acquitted Angleton.1
In January 2002, a federal grand jury in-
dicted Angleton on three counts. In counts 1
and 2, the indictment charges Angleton with
murder for hire and conspiracy to commit
murder for hire, both in violation of 18 U.S.C.
§ 1958(a), which prohibits interstate travel or
the use of instrumentalities of interstate com-
merce “with intent that a murder be committed
in violation of the laws of any State” in ex-
change for consideration. Count 3 charges
Angleton with using a firearm in connection
with a crime of violence in violation of
18 U.S.C. § 924(c)(1)(A).
After an evidentiary hearing, the district
court found Angleton unable to establish a pri-
ma facie case of double jeopardy and denied
his motion to dismiss the indictment. United
States v. Angleton, 221 F. Supp. 2d 696 (S.D.
Tex. 2002). After determining, however, that
Angleton’s arguments are not frivolous, the
1 The joint task force has received one piece of
new evidence, a tape recording of an interview An-
gleton gave to a writer, Vanessa Leggett. In addi-
tion, federal investigators contend that they have
enhanced the quality of a surveillance tape of An-
gleton that was used at the state trial.

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court stayed its proceeding pending the out-
come of this interlocutory appeal. We have
jurisdiction over an appeal, on nonfrivolous
grounds of double jeopardy, of an order deny-
ing a motion to dismiss an indictment. Abney
v. United States, 431 U.S. 651, 657-62
(1977).
II.
No person shall “be subject for the same
offense to be twice put in jeopardy of life or
limb.” U.S. CONST. AMEND. V. Double jeo-
pardy concerns are implicated where a
defendant is retried for the same offense
following acquittal. Illinois v. Vitale, 447
U.S. 410, 413-15 (1980). Determining wheth-
er two offenses are the same offense for
purposes of the Double Jeopardy Clause
focuses on their statutory elements. We need
not decide, however, whether the federal
prosecution of Angleton constitutes double
jeopardy, because we conclude that no
exception to the dual sovereignty doctrine
applies to this case in such a way as to call the
federal indictment into question.2
III.
The dual sovereignty doctrine permits the
United States to “prosecute a defendant after
an unsuccessful state prosecution based on the
same conduct, even if the elements of the state
and federal offenses are identical.”3 Angleton
nevertheless argues that the dual sovereignty
doctrine “relies on a rigid adherence to a
premise that is no longer tenable: that state
and federal prosecutors always pursue
different interests as separate and distinct
sovereigns.” He contends that the rise of co-
operative federalism and the incorporation of
the Double Jeopardy Clause through the Four-
teenth Amendment have eroded the
foundations of the dual sovereignty doctrine.
A.
The dual sovereignty doctrine derives from
the common law notion that a crime is an of-
fense against the sovereign.4 “When a
defendant in a single act violates the ‘peace
and dignity’ of two sovereigns by breaking the
laws of each, he has committed two distinct
‘offenses.’” Heath, 474 U.S. at 87. As a
sovereign,5 the United States “has the right to
decide that a state prosecution has not
vindicated a violation of the ‘peace and
dignity’ of the federal government.” Id. at 93.
The dual sovereignty doctrine is best
understood, then, not as an exception to dou-
2 See, e.g., United States v. Basile, 109 F.3d
1304 (8th Cir. 1997) (holding that the dual
sovereignty doctrine permits a successive federal
prosecution after a state acquittal, without
addressing whether the underlying state murder
charge and § 1958(a) constitute the same offense
for purposes of double jeopardy); United States v.
Koon, 34 F.3d 1416 (9th Cir. 1994) (applying dual
sovereignty doctrine without addressing whether
state charges of assault with a deadly weapon and
excessive use of force by a police officer were the
same offenses, for double jeopardy purposes, as the
deprivation of constitutional rights, 18 U.S.C. §
242).
3 United States v. Avants, 278 F.3d 510, 516
(5th Cir.) (citing Heath v. Alabama, 474 U.S. 82,
93 (1985)), cert. denied, 122 S. Ct. 2683 (2002).
4 Note, Popular Sovereignty, Double Jeopardy,
and the Dual Sovereignty Doctrine, 102 YALE L.J.
281, 290 (1992).
5 See McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 410 (1819) (“[In] America, the
powers of sovereignty are divided between the
government of the Union, and those of the States.
They are each sovereign, with respect to the objects
committed to it, and neither sovereign with respect
to the objects committed to the other.”).

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ble jeopardy, but rather as a manifestation of
the maxim that where a defendant violates the
laws of two sovereigns, he commits separate
offenses.6
The Supreme Court directly embraced the
doctrine for the first time in United States v.
Lanza, 260 U.S. 377, 382, recognizing that “in
determining what shall be an offense against its
peace and dignity [, each sovereign] is exer-
cising its own sovereignty, not that of the
other.” Id. at 382. Before Lanza was
decided, several nineteenth century opinions
illustrated that even before the rise of modern
“cooperative federalism,” Murphy v.
Waterfront Comm’n, 378 U.S. 52, 55 (1964),
there was concurrent regulation.7 Until Lanza,
however, the Court was faced only with
threats of successive state-federal
prosecutions.
Two 1959 Supreme Court decisions bol-
stered Lanza and helped shape the modern
view of the dual sovereignty doctrine as a
mainstay of federalism. In Bartkus v. Illinois,
359 U.S. 121 (1959), the Court decided that a
successive state robbery prosecution following
an acquittal under the federal robbery statute
did not deny due process. Key to the decision
was the inapplicability of the Fifth Amendment
to the states, id. at 123-29, a point reiterated
in another decision decided the same day, Ab-
bate v. United States, 359 U.S. 187, 194
(1959).8
In Heath,9 474 U.S. at 88, the Court rec-
ognized that in assessing the validity of the du-
al sovereignty doctrine, the “crucial determina-
tion is whether the two entities that seek suc-
cessively to prosecute a defendant for the same
course of conduct can be termed separate sov-
ereigns.” Where the dual sovereignty doctrine
has been found inapplicable, it is because “the
two prosecuting entities did not derive their
powers to prosecute from independent sources
of authority.”10 Id. at 90. The Heath Court
6 See Heath, 474 U.S. at 92 (“This Court has
plainly and repeatedly stated that two identical of-
fenses are not the ‘same offence’ within the mean-
ing of the Double Jeopardy Clause if they are pro-
secuted by different sovereigns.”); United States v.
Lanza, 260 U.S. 377, 382 (1922) (“[A]n act de-
nounced as a crime by both national and state sov-
ereignties is an offense against the peace and dig-
nity of both and may be punished by each.”);
Moore v. Illinois, 55 U.S. (14 How.) 13, 20 (1852)
(“The same act may be an offence or transgression
of the laws of [Illinois and the United States] . . . .
That either or both may (if they see fit) punish such
an offender, cannot be doubted.”).
7 See Moore v. Illinois, 55 U.S. (14 How.) 13
(1852); United States v. Marigold, 50 U.S. (9
How.) 560 (1850) (discussing the concurrent
power of the federal and state governments to pun-
ish counterfeiting); Fox v. Ohio, 46 U.S. (5 How.)
410 (1847) (same); Houston v. Moore, 18 U.S. (5
Wheat.) 1 (1820) (addressing state statute that
punished militiamen who failed to answer the
President’s call to service).
8 Abbate, 359 U.S. at 188-89, upheld a
successive federal prosecution for the destruction
of property where defendants had been acquitted in
state court. The Abbate Court explicitly refused to
overrule Lanza. Id. at 195.
9 Heath applied the dual sovereignty doctrine to
a case involving successive prosecutions by two
states. There is no authority suggesting that its
holding is less relevant in other contexts, such as
successive state-federal prosecutions.
10 For example, successive prosecutions by fed-
eral and territorial courts are barred, Puerto Rico
v. Shell Co., 302 U.S. 253, 264 (1937), as are suc-
cessive prosecutions by municipalities that derive
their power to try defendants “from the same or-
(continued...)

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5
explicitly rejected the notion that applicability
of the dual sovereignty doctrine should hinge
on an assessment of the separate sovereigns’
interests. Id. at 92. Rather, if the prosecuting
sovereigns are separate, “the circumstances of
the case are irrelevant.” Id.
B.
Angleton points out that, since Lanza was
decided, the United States has assumed an in-
creased role in the enforcement of criminal
law. The dual sovereignty doctrine, however,
has never required that where there is concur-
rent regulation, the United States or a state
must demonstrate a unique interest not shared
by the other. Heath, 474 U.S. at 92.
Angleton also accurately observes that
Bartkus and Lanza were decided before the
Double Jeopardy Clause was first applied to
the states in Benton v. Maryland, 395 U.S.
784 (1969). The legal foundations of the dual
sovereignty doctrine, however, have been
firmly rooted in the notion that “[t]he same act
may be an offence [sic] or transgression of the
laws” of two separate sovereigns. Bartkus,
359 U.S. at 131 (quoting Moore, 55 U.S. (14
How.) at 20).
Angleton’s argumentSSthat incorporation
of the Fourth and Fifth Amendments has led
the Court to reconsider the constitutionality of
other previously authorized practices in which
cooperating state and federal prosecutors ac-
complished what the federal government was
unable to do independentlySSis unavailing.
Angleton cites the overruling, in Elkins v.
United States, 364 U.S. 206 (1960), of the
“silver platter doctrine,” a practice that, before
the incorporation of the Fourth Amendment,
permitted federal authorities to use evidence
obtained illegally by state authorities. In El-
kins, the Court reasoned that evidence seized
illegally by one sovereign could not be turned
over to another sovereign, because “[t]o the
victim it matters not whether his constitutional
right has been invaded by a federal agent or by
a state officer.” Id. at 215.11
The dual sovereignty doctrine, however,
exists independently of any interaction be-
tween sovereigns; either may prosecute in-
dependently to vindicate its own interests.
The Supreme Court has said, as recently as
Heath, that the doctrine remains good law.12
We therefore turn to Angleton’s argument that
a successive federal prosecution is barred by
exceptions to the dual sovereignty doctrine.
IV.
Angleton contends that two exceptions to
the dual sovereignty doctrine bar his federal
prosecution. He first argues that the nature
and extent of the state officials’ involvement in
his federal indictment justify application of the
“sham prosecution” exception. Second, re-
lying on language in Houston v. Moore,
18 U.S. (5 Wheat.) 1 (1820), he contends that
the federal murder for hire statute’s
10(...continued)
ganic law that empowers the State.” Waller v.
Florida, 397 U.S. 387 (1970).
11 See also Murphy, 378 U.S. at 77
(overturning the previously authorized rule that,
before incorporation of the Self-incrimination
Clause of the Fifth Amendment, compelled self-
incrimination could be used by a sovereign
different from the one obtaining the confession).
12 See United States v. Singleton, 16 F.3d 1419,
1429 n.48 (5th Cir. 1994) (“Even if the
constitutionality of the ‘dual sovereignty doctrine’
were properly before us . . . we are bound by
Supreme Court precedent upholding the doctrine.”
(citing Heath, 474 U.S. 82 (1985))).

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incorporation of the Texas capital murder
statute leaves his prosecution without an
independent federal interest.
A.
In Bartkus, 359 U.S. at 123-24, the Court
suggested, in dictum, that there is an exception
to the dual sovereignty doctrine where prose-
cution by one sovereign is used as a cover or
tool for a successive prosecution by another
sovereign. In such a case, collusion between
federal and state officials might blur their dis-
tinction such that the defendant is “effectively
prosecuted twice by the same sovereign.”
United States v. Harrison, 918 F.2d 469, 474
(5th Cir. 1990).
The Bartkus Court’s failure to identify a
particular instance of a sham prosecution may
mean that the exception does not exist. Id.;
United States v. Patterson, 809 F.2d 244, 247
n.2 (5th Cir. 1987). Indeed, the close interac-
tion between federal and state authorities in
Bartkus, which included the federal prosecu-
tor’s decision to “instigate and guide” the suc-
cessive state prosecution, suggests that the
sham exception exists, if at all, only in the rar-
est of circumstances. Bartkus, 359 U.S. at
165 (Brennan, J., dissenting).13 In cases in
which we have recognized the exception as a
possible bar to a successive prosecution, we
have never found sufficient collusion to justify
its application.14
For evidence that the federal prosecution is
a sham, Angleton points to the involvement of
state authorities in the process leading to the
federal indictment. He argues that the federal
government’s failure to investigate the murder
until contacted by the Harris County District
Attorney, and the three and one-half year gap
between the state acquittal and federal
indictment, demonstrate a lack of federal
interest. In addition, Angleton claims that the
formation of a joint federal-state task force,
the deputizing of HPD officers as U.S. Mar-
shals, and the interviewing of state jurors sug-
gest that the federal prosecut ion is merely an
avenue for the state to retry the case.
The key, however, is whether the separate
sovereigns have made independent decisions to
prosecute,15 or whether, instead, “one
sovereign has essentially manipulated another
13 See United States v. Figueroa-Soto, 938 F.2d
1015, 1019 (9th Cir. 1991) (“As a practical
matter, . . . under the criteria established by
Bartkus itself it is extremely difficult and highly
unusual to prove that a prosecution by one
government is a tool, a sham or a cover for the
other government.”).
14 See, e.g., United States v. McKinney, 53 F.3d
(continued...)
14(...continued)
664, 676 (5th Cir. 1995) (rejecting claim that state
authorities purposely failed to include charges later
reported to federal prosecutors); United States v.
Moore, 958 F.2d 646, 650 (rejecting claim that
successive prosecution was a sham where
defendant had committed separate offenses against
a federal and state officer); United States v.
Cooper, 949 F.2d 737, 750-51 (5th Cir. 1991)
(finding no sham prosecution where there was a
short time between a mistaken release from state
custody and a federal indictment).
15 See United States v. Baptista-Rodriguez, 17
F.3d 1354, 1361 (11th Cir. 1994) (“To fit within
the [sham prosecution] exception, the defendant
must show that one sovereign was so dominated,
controlled, or manipulated by the actions of the
other that it did not act of its own volition.”); In re
Kunstler, 914 F.2d 505, 517 (4th Cir. 1990)
(stating that the sham prosecution exception “may
only be established by proof that State officials had
little or no independent volition in their
proceedings”) (citation omitted).

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sovereign into prosecuting,” United States v.
G.P.S. Auto. Corp., 66 F.3d 483, 495 (2d Cir.
1995), or because the state and federal
prosecutor are the same person, United States
v. Belcher, 762 F. Supp. 666, 671 (W.D. Va.
1991). The facts of Bartkus demonstrate that
the degree of cooperation between federal and
state authorities cannot, by itself, constitute a
sham prosecution.
B.
Angleton contends that Bartkus defined an
additional class of successive federal-state pro-
secutions in which the dual sovereignty doc-
trine is inapplicable. He relies on language
from Houston, 18 U.S. (5 Wheat.) 1, later in-
terpreted in Bartkus, for the proposition that
“where one sovereign is derivatively enforcing
a statute of the other by explicitly in-
corporating it as a central element of an
offense,” a successive prosecution by the
enforcing sovereign is barred. Angleton
correctly notes that § 1958(a) incorporates the
Texas capital murder statute.16 He argues that
the attempt of the United States derivatively to
enforce the state statute dictates the
conclusion that the sovereigns do not have
“independent and separate interests.”
In Houston, the Court reviewed the
constitutionality of a Pennsylvania statute that
derivatively enforced a federal statute by
providing sanctions for members of the state
militia who failed to answer the President’s
call to service. The Court stated, in dictum,
that if the federal and state military tribunals
exercised concurrent jurisdiction, the former
prosecution might be pleaded in bar of the
other. Id. at 31-32. In Bartkus, however, the
Court, 359 U.S. at 130, stated that Houston
could be cited “only for the presence of a bar
in a case in which the second trial is for a
violation of the very statute whose violation by
the same conduct has already been tried in the
courts of another government empowered to
try that question.”17
Because Houston involved neither
successive prosecutions nor a discussion of the
dual sovereignty doctrine, its continual
relevance is, to say the least, questionable.
Moreover, Angleton’s argumentSSthat a sov-
ereign derivatively enforcing the statute of
another sovereign lacks an independent
interest sufficient to justify its successive
prosecutionSSwas rejected in Heath, 474 U.S.
at 82, in which the Court disavowed the
“uncertain balance of interests approach,” id.
at 92.
16 The federal murder for hire statute states in
relevant part:
Whoever travels in or causes another
(including the intended victim) to travel in
interstate or foreign commerce, or uses or
causes another (including the intended vic-
tim) to use the mail or any facility in in-
terstate or foreign commerce, with intent
that a murder be committed in violation of
the laws of any State or the United States as
consideration for the receipt of, or as con-
sideration for a promise or agreement to
pay, anything of pecuniary value, or who
conspires to do so . . . .
18 U.S.C. § 1958(a) (emphasis added).
17 Angleton also cites United States v. Mason,
213 U.S. 115 (1909), in support of his argument
that a sovereign cannot derivatively enforce the
statute of another sovereign in a successive
prosecution. Like Houston, Mason is “neither a
double jeopardy nor a collateral estoppel holding.”
United States v. Frumento, 563 F.2d 1083, 1087
(3d Cir. 1977).

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Moreover, the United States is not seeking
to enforce the state statute under which Angle-
ton was acquitted. Instead, Congress has
criminalized interstate activities involving mur-
der for hire. Because Congress has acted
within constitutional bounds, United States v.
Marek, 238 F.3d 310, 321 (5th Cir.) (en banc),
cert. denied, 534 U.S. 813, and cert. denied,
534 U.S. 813 (2001), it is free to define the
crime as it deems proper, United States v.
Kozminski, 487 U.S. 931- 939 (1989), includ-
ing the derivative use of borrowed statutes.
V.
Angleton reasons that § 1958(a) should be
interpreted as requiring the United States to
demonstrate a “substantial federal interest” be-
fore bringing a successive federal prosecution
of an acquitted state murder for hire charge.
He contends that in enacting § 1958(a),
Congress “anticipated the grave federalism
concerns raised by a successive prosecution
under the statute by indicating an intent to
reserve any federal prosecution . . . to cases
raising substantial federal interests.”
Angleton’s argument is tantamount to urg-
ing an adoption of the Department of Justice’s
“Petite policy,” which permits federal
prosecutors to obtain authorization to bring a
federal prosecution following a state
prosecution for the same underlying conduct,
where the state proceeding has left “substantial
federal interests demonstrably unvindicated.”
United States v. Jones, 808 F.2d 561, 565 (7th
Cir. 1986). As Angleton concedes, the Petite
policy is not constitutionally mandated,
because “the Constitution does not prohibit
successive state-federal prosecutions.” United
States v. Nelligan, 573 F.2d 251, 254 (5th Cir.
1978) (citing Rinaldi v. United States, 434
U.S. 22, 28 (1977)).
So far as Angleton’s argument can be in-
terpreted as requiring a substantial federal in-
terest to keep § 1958 within the scope of the
Commerce Clause, it is also foreclosed. We
recently confirmed the constitutionality of
§ 1958(a) in Marek, 238 F.3d at 320,
interpreting the statute broadly to allow even
intrastate use of a facility of interstate
commerce.
VI.
Angleton argues that collateral estoppel
prevents the empaneling of a federal jury to
decide factual questions already determined by
a state jury. Collateral estoppel, or issue pre-
clusion, requires that “when an issue of ulti-
mate fact has once been determined by a valid
and final judgment, that issue cannot again be
litigated between the same parties in any
future lawsuit.” Ashe v. Swenson, 397 U.S.
436, 443 (1970) (emphasis added). Collateral
estoppel is inapplicable here, because the
United States and Texas, as separate
sovereigns, are not the “same party.”
In Ashe, the Court held that collateral es-
toppel is embodied in the Double Jeopardy
Clause. Id. at 445. Because that clause does
not bar the United States from prosecuting a
defendant for the same conduct after an
unsuccessful state prosecution, and because
collateral estoppel is embodied in the clause,
collateral estoppel does not bar Angleton’s
successive federal prosecution. Because two
sovereigns are permitted to prosecute for the
same crime, “it would be anomalous, indeed,
if a sovereign were allowed the greater power
of reprosecuting individuals for offenses for
which they had been acquitted but were denied
the lesser power of proving the underlying
facts of such offenses.” United States v.
Tirrell, 120 F.3d 670, 676 (7th Cir. 1997).
The order of the district court, denying An-

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gleton’s motion to dismiss the indictment, is
AFFIRMED, and this matter is REMANDED
for further appropriate proceedings. As the
government requests, in the interest of expe-
diting this matter, the mandate shall issue
forthwith.

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