United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3365
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Willie Vinson, *
*
Appellant. *
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Submitted: March 17, 2005
Filed: July 14, 2005
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Before WOLLMAN, JOHN R. GIBSON, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Willie Vinson pled guilty to possession with intent to distribute more than 50
grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Vinson
reserved the right to appeal several issues that he raised unsuccessfully in the district
court. We have considered Vinson’s arguments, and we affirm.
I.
On July 30, 1999, state law enforcement officers executed a search warrant at
Vinson’s home in St. Paul, Minnesota, and discovered 95.7 grams of cocaine base and
a handgun. Vinson then began to serve a term of imprisonment in the State of
Minnesota on unrelated charges. In December 1999, while Vinson was imprisoned,
the county prosecutor in Minnesota brought charges against Vinson based on the
search in July 1999. The State lodged a detainer against Vinson based on the new
charges, and Vinson then filed a written request for disposition of the new charges.
The record reflects that the state charges subsequently were dismissed by a state court
on the ground that the State’s failure to bring the matter to trial within six months of
Vinson’s written request violated Minnesota’s Uniform Mandatory Disposition of
Detainers Act. Minn. Stat. § 629.292, subd. 3.
Vinson was released from prison in July 2002. On June 9, 2003, state law
enforcement officers developed information that Vinson was in possession of a large
quantity of cocaine. Officers executed a search warrant at Vinson’s home, and seized
10.3 grams of cocaine, 470.9 grams of marijuana, a handgun, and ammunition. An
additional 48.8 grams of cocaine and 6.2 grams of cocaine base were found in
Vinson’s vehicle.
State investigators referred the evidence gathered during the June 2003
investigation and the July 1999 investigation (which resulted in the dismissed state
court charges) to federal authorities. The United States Attorney eventually sought
and obtained an indictment alleging that in July 1999, Vinson possessed with intent
to distribute more than 50 grams of cocaine base, and unlawfully possessed a firearm
as a previously convicted felon, and further that in June 2003, Vinson possessed with
intent to distribute over five grams of cocaine base, possessed a stolen firearm, and
unlawfully possessed a firearm as a previously convicted felon.
Vinson moved to dismiss the indictment on several grounds. He asserted that
the federal government’s prosecution based on the July 1999 investigation violated
the Interstate Agreement on Detainers, 18 U.S.C. App. 2, that the federal charges
subjected him to double jeopardy in violation of the Fifth Amendment, and that the
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indictment violated a non-prosecution agreement that Vinson had reached with local
law enforcement officials. The district court1 rejected these arguments.
On the day his trial was to begin, Vinson entered into a plea agreement with the
government. Pursuant to the agreement, Vinson pled guilty to possession with intent
to distribute more than 50 grams of cocaine base on or about July 30, 1999. The
government agreed to recommend a two-level reduction under the United States
Sentencing Guidelines for acceptance of responsibility. Vinson waived his right to
appeal his sentence unless it resulted from an offense level greater than 32, but
reserved his right to appeal the district court’s denial of his pre-trial motions. He now
argues that the district court erred in refusing to dismiss his indictment based on the
IAD or a non-prosecution agreement, that the district court erred in denying his
motion to suppress evidence from the 1999 search, and that the district court should
have decreased his offense level by three levels rather than two for acceptance of
responsibility.
II.
The Interstate Agreement on Detainers (“IAD”) provides:
Whenever a person has entered upon a term of imprisonment in a penal
or correctional institution of a party State, and whenever during the
continuance of the term of imprisonment there is pending in any other
party State any untried indictment, information, or complaint on the
basis of which a detainer has been lodged against the prisoner, he shall
be brought to trial within one hundred and eighty days after he shall
have caused to be delivered to the prosecuting officer and the
appropriate court of the prosecuting officer’s jurisdiction written notice
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, adopting the Report and Recommendations of the Honorable Jonathan
G. Lebedoff, Chief United States Magistrate Judge for the District of Minnesota.
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of the place of his imprisonment and his request for a final disposition
to be made of the indictment, information, or complaint . . . .
18 U.S.C. App. 2, § 2, Art. III(a). Minnesota and the United States each is a party
“State” under the Agreement. 18 U.S.C. App. 2, §2, Art. II(a); see also United States
v. Mauro, 436 U.S. 340, 362 (1978).
Vinson argues that because charges filed against him by the State of Minnesota
in December 1999 were dismissed after the State failed to prosecute him within six
months of his written request, the IAD bars a later prosecution by the United States
of criminal charges based on the same facts that gave rise to the dismissed state
charges. We disagree. The IAD requires when there “is pending in any other party
State” an indictment that gives rise to a detainer against a prisoner, and when the
prisoner makes written request for disposition of the indictment, the prosecuting
officer in that “other party State” must proceed with the prosecution within 180 days
of the request. In 1999, however, the United States was not the prosecuting
jurisdiction in Vinson’s case. The 1999 indictment was pending only in the State of
Minnesota. The United States did not lodge a detainer against Vinson, and Vinson
did not provide written notice to the United States of his place of imprisonment or his
request for disposition of the charges filed in state court. In fact, the record shows
that federal authorities were not even aware of the 1999 investigation until after the
2003 investigation, at which time state officers referred both the 1999 and 2003
matters to federal authorities for possible prosecution. The disposition request that
Vinson filed was pursuant to Minnesota’s separate Mandatory Disposition of
Detainers Act and not pursuant to the IAD, but even if the IAD had been implicated
by his first detainer, the IAD does not provide that the noncompliance of one party
State may be attributed to another sovereign party.
Vinson also contends that the federal prosecution subjects him to jeopardy
twice for the same offense, and thus violates his rights under the Fifth Amendment.
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We agree with the district court, however, that jeopardy never attached to the state
charges filed in December 1999, which were dismissed before any jury was
empaneled and sworn, see Crist v. Bretz, 437 U.S. 28, 35 (1978), so no subsequent
prosecution is prohibited by the Double Jeopardy Clause. Vinson’s double jeopardy
argument, moreover, overlooks the separate sovereignty of the United States and the
State of Minnesota. See United States v. Leathers, 354 F.3d 955, 959-60 (8th Cir.
2004). While one sovereign may not place an individual in jeopardy twice for the
same acts, a subsequent prosecution by a separate sovereign does not violate the
Constitution. And while the Supreme Court has suggested that a state prosecution
that is merely a “sham and a cover” for a duplicative federal prosecution may be
impermissible, Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959), this possibility
affords no basis for relief in this case. Vinson was the subject of a subsequent
federal, not state, prosecution, see Leathers, 354 F.3d at 960, and more importantly,
Vinson has offered no evidence that the federal prosecution operated as a “sham and
a cover” to disguise a second prosecution in which the United States Attorney was
a mere “tool” of the State of Minnesota. See Bartkus, 359 U.S. at 123-24. We
therefore conclude that the district court correctly denied Vinson’s motion to dismiss
based on the Double Jeopardy Clause of the Fifth Amendment.
Vinson next contends that his “speedy trial” rights under the Sixth Amendment
were infringed by the government’s prosecution in October 2003 of charges that
stemmed from a search that occurred more than three years earlier, in July 1999. This
contention is without merit, because the Sixth Amendment’s guarantee of a “speedy
and public trial” applies to the interval between accusation and trial, and does not
obligate the United States to make speedy accusations. United States v. Marion, 404
U.S. 307, 313 (1971). Vinson refers obliquely in an argument heading to “pre-
indictment delay,” which suggests a claim based on the Due Process Clause of the
Fifth Amendment. See United States v. Lovasco, 431 U.S. 783, 789 (1977); Marion,
404 U.S. at 324. We see no indication that such a due process claim was raised in the
district court. In any event, Vinson has not demonstrated prejudice arising from pre-
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indictment delay, Lovasco, 431 U.S. at 790, or deliberate delay by the government to
gain a tactical advantage, both of which are required to establish a deprivation of
liberty without due process of law based on pre-indictment delay. United States v.
Grap, 368 F.3d 824, 829 (8th Cir. 2004).
Vinson also argues that his prosecution based on the evidence seized in 1999
violates a non-prosecution agreement that he reached with a deputy sheriff in
Minnesota. Vinson asserts that he agreed to cooperate, “made three buys for the
sheriff,” and “was told that the case would be dismissed altogether.” (Appellant’s Br.
at 32). The district court found as a matter of fact that even a state prosecution was
not precluded by the purported agreement, because Vinson failed to complete the
required number of “buys.” But even assuming there was an enforceable non-
prosecution agreement between Vinson and the county sheriff, it does not bar the
federal prosecution, because state and local officials have no power to bind the
federal government. United States v. Glauning, 211 F.3d 1085, 1087 (8th Cir. 2000).
III.
Vinson next contends that the district court erred in failing to suppress the
evidence obtained pursuant to the 1999 search warrant, because the warrant was
based only “upon the bald allegations of an unidentified allegedly confidential
reliable informant.” (Appellant’s Br. at 33). In evaluating a district court’s denial of
a motion to suppress, we review its factual determinations for clear error and its legal
conclusions de novo. United States v. Lynch, 322 F.3d 1016, 1017 (8th Cir. 2003).
Determinations of probable cause are “paid great deference by reviewing courts.”
Illinois v. Gates, 462 U.S. 213, 236 (1983).
Because the disputed evidence was seized pursuant to a warrant, it will not be
excluded, even if a reviewing court determines that the supporting affidavit failed to
establish probable cause, as long as the executing officers relied in objectively
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reasonable good faith upon the warrant. United States v. Leon, 468 U.S. 897, 922
(1984). As relevant here, the good faith exception to the exclusionary rule applies
unless an affidavit is “so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.” Id. at 923 (internal quotation omitted).
Vinson contends that the affidavit in support of the application for the 1999
search warrant was unsupported by probable cause because the informant was
unreliable. We believe the affidavit provided the magistrate with “a substantial basis
for determining the existence of probable cause,” Illinois v. Gates, 462 U.S. at 239,
and, in any event, we have no hesitation in concluding that an objectively reasonable
officer could rely in good faith on the issuance of the warrant. Information from a
confidential informant may be sufficient to establish probable cause if it “is
corroborated by independent evidence” or if the informant “has a track record of
supplying reliable information.” United States v. Gabrio, 295 F.3d 880, 883 (8th Cir.
2002) (internal quotations omitted).
The affidavit in this case explained that the informant previously had provided
information to law enforcement agencies that led to the arrest and conviction of
numerous felony narcotics violators. The affiant stated that the informant had
furnished information that was proven to be true and correct through independent
corroboration. With respect to the information provided by the informant about
Vinson, the deputy sheriff investigated post office and utility records to confirm that
Vinson lived at the home identified by the informant, and confirmed that a car
identified by the informant had been parked in front of the home on several occasions.
The affiant also checked Vinson’s criminal history, and discovered that he had
sustained two prior convictions for drug offenses. This track record and
corroboration is sufficient to establish the informant’s reliability, and the facts
contained in the warrant application – that the informant observed Vinson possessing
and selling cocaine at his residence on “numerous occasions over the past 30 days”
– were more than sufficient to establish probable cause. We conclude, therefore, that
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the district court did not err in denying Vinson’s motion to suppress the evidence
seized pursuant to the warrant.
IV.
Finally, with regard to his sentence, Vinson argues that his cooperation with
law enforcement investigations justified a three-level reduction for acceptance of
responsibility pursuant to USSG § 3E1.1(b), rather than the two-level reduction that
he received. Vinson advances this position even though his plea agreement called for
only a two-level reduction, and stated that “[b]ecause the defendant entered his plea
on the day of trial, the government will not agree to an additional point reduction for
acceptance of responsibility.” (App. at 8). We decline to consider this argument,
because Vinson waived “his right to appeal . . . the sentence on any ground, unless
the court should impose a sentence in violation of the law apart from the Sentencing
Guidelines,” as long as the court sentenced him “at or below offense level thirty two
(32).” The district court imposed sentence based on a total offense level of 30, so the
terms of the appeal waiver preclude Vinson’s challenge to his sentence, and Vinson
has presented no basis to conclude that his waiver was other than knowing and
voluntary, or that enforcement of the agreement would be a miscarriage of justice.
See United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc).2
* * *
The judgment of the district court is affirmed.
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2
Vinson has raised no challenge to his sentence based on United States v.
Booker, 125 S. Ct. 738 (2005).
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