Be wary of state prosecutors who offer great pleas. That's the hidden -- and important -- message behind the holding in this case.
The defendant here gets arrested on various charges, including carrying a concealed handgun. Nevada could charge him with a plethora of offenses, but instead offers him a seemingly great deal. They let him plea to a misdemeanor -- carrying a concealed weapon -- for which he's sentenced to a whopping $500 fine. A great outcome for the defendant, right?
Wrong. 'Cause shortly after the defendant's plea, the U.S. Attorney in Nevada indicts the defendant for being a felon in possession of a firearm. Which ain't a misdemeanor, and for which the maximum sentence is 10 years in the pokey (rather than a mere $500). And what's darn good evidence of the defendant's guilt? His recent guilty plea to the state offense. Which is basically all the prosecution needs. And don't think that the "great" deal defendant got in state court is a stunning coincidence, since the federal and state officials had been working together in a federally funded task force to target people precisely like defendant for prosecution.
The case is a healthy reminder of the fact that -- as we all know -- the Double Jeopardy Clause has been repeatedly held inapplicable to dual prosecutions by separate sovereigns. There's a limited exception (the "Bartkus exception") that applies when the state prosecution is merely a sham and cover for the federal prosecution. But the panel holds that this exception doesn't apply here; indeed, that defendant isn't even entitled to discovery on the issue, since the mere fact that there's a jointly funded taskforce working closely together isn't enough to give rise to a sufficient inference that the Bartkus exception might be applicable.
I've got no real beef with the outcome. Though the panel could have been a little more forthright about the evidence that defendant submitted. The panel claims that he's merely relying on the fact that there's a joint taskforce where federal and state officials are working together. But that's not really right. Rather, the best evidence that the state prosecution was a sham cover for the subsequent federal action was, in my mind, the stunningly good deal that defendant received in state court in return for his guilty plea, followed promptly thereafter by his federal indictment. Do you think Nevada regularly offers convicted felons who are caught with concealed weapons misdemeanor pleas and $500 sentences? I doubt it. That's the best evidence that the exception applies, and the panel doesn't even mention it.
There's another part of the opinion that may be interesting to federal courts scholars; namely, whether the denial of discovery on the issue is an appealable collateral order. But all I'll really say on this issue is that the majority (Judges Kozinksi and Thomas) is right and the concurrence (Judge Wallace) is wrong. Fairly clearly, I think. But I'll say nothing more on this point, and instead leave the dueling opinions to battle it out amongst themselves.
