17‐2372
United States v. Jenkins
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 28th day of February, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 17‐2372
GREGORY WILLSON, AKA FLIP, DAVID
PIRK, TIMOTHY ENIX, AKA BLAZE, FILIP
CARUSO, AKA FILLY, EDGAR DEKAY, II,
AKA ED, AKA SPECIAL ED, JASON
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WILLIAMS, AKA TOOP, THOMAS KOSZUTA,
AKA KAZOO, EMMETT GREEN, ROBERT
OSBORNE, JR., STANLEY OLEJNICZAK, JACK
WOOD, AKA JAKE, AKA SNAKE, RYAN
MYRTLE, THOMAS SCANLON, AKA TOM,
GLEN STACHARCZYCK, AKA TURBO, SEAN
MCINDOO, AKA PROFESSOR,
Defendants,
ANDRE JENKINS, AKA LITTLE BEAR,
Defendant‐Appellant.
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FOR APPELLANT: Herbert L. Greenman (Barry N.
Covert, on the brief), Lipsitz Green
Scime Cambria LLP, Buffalo, NY.
FOR APPELLEE: Joseph J. Karaszewski, Assistant
United States Attorney, for James P.
Kennedy, Jr., United States Attorney
for the Western District of New York,
Buffalo, NY.
Appeal from an order of the United States District Court for the Western
District of New York (Wolford, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the order of the district court is AFFIRMED.
Defendant‐appellant Andre Jenkins, AKA Little Bear, appeals from a July
24, 2017 order of the district court denying his motion to dismiss the indictment
against him as barred by the Double Jeopardy Clause of the Fifth Amendment.
Jenkins argues on appeal that the district court erred by not finding the dual
sovereignty exception applicable, and in denying an evidentiary hearing on his
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motion. We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.
1. The United States contends that this Court lacks jurisdiction to hear
Jenkins’ interlocutory appeal. Under 28 U.S.C. § 1291, “courts of appeals . . .
have jurisdiction of appeals from all final decisions of the district courts of the
United States . . . except where a direct review may be had in the Supreme Court.”
Id. In addition, under Abney v. United States, 431 U.S. 651 (1977), pre‐trial
denials of motions to dismiss on double jeopardy grounds have been recognized
as falling “within the small class of cases” that are “beyond the confines of the
final‐judgment rule,” and may be heard on interlocutory appeal. Id. at 659
(internal quotation marks omitted). That is because the right to not be put in
jeopardy twice for the same offense “would be lost, probably irreparably, if
review had to await final judgment.” United States v. Tom, 787 F.2d 65, 68 (2d
Cir. 1986) (internal citation and quotation marks omitted).
Jenkins initially challenged the entire indictment as barred by the Double
Jeopardy Clause, but conceded in his Reply Brief and at oral argument that he
would face trial on Counts 1, 2, 45, and 46 regardless of how we decide his appeal.
Jenkins also argues that Count 1 “may” be subject to dismissal as well, without
specifying why. See Def. Reply Br. at 2. So now, Jenkins only challenges
Counts 19, 20, 21, 22, and 23 as barred by the Double Jeopardy Clause. We
possess jurisdiction where, as here, “a defendant challenges an entire count on
grounds of former jeopardy.” Tom, 787 F.2d at 68.
2. Under “the principle of dual sovereignty, a defendant in a criminal
case may be prosecuted by more than one sovereign without violating principles
of double jeopardy.” United States v. Sewell, 252 F.3d 647, 651 (2d Cir. 2001)
(internal citation and quotation marks omitted). The dual sovereignty doctrine
is premised “on the common law conception of crime as an offense against the
sovereignty of the government and allows that a defendantʹs single act may break
the laws of two sovereigns and constitute two offenses.” Id. (internal citation
and quotation marks omitted). But under the Bartkus exception to dual
sovereignty, “[t]he Double Jeopardy Clause may be violated despite single
prosecutions by separate sovereigns when one prosecuting sovereign can be said
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to be acting as a tool of the other.” United States v. All Assets of G.P.S. Auto.
Corp., 66 F.3d 483, 494 (2d Cir. 1995) (internal citations and quotation marks
omitted); see also Bartkus v. Illinois, 359 U.S. 121, 123‐24 (1959) (the Double
Jeopardy Clause is violated when a “state prosecution [i]s a sham and a cover for
a federal prosecution.”). Jenkins argues that the Bartkus exception is applicable
in his case because, he alleges, the state authorities were manipulated by the
federal prosecutors. We disagree.
After review of the Saraceno declaration and Tripi affidavit, the district
court properly determined that the Bartkus exception was not applicable since
Jenkins failed to demonstrate any “persuasive evidence that the state acted as a
tool of the federal government.” United States v. Peterson, 100 F.3d 7, 12 (2d Cir.
1996) (internal citation and quotation marks omitted); see also All Assets of G.P.S.
Auto. Corp., 66 F.3d at 495 (“we have repeatedly held that even significant
cooperation between state and federal authorities does not provide a basis for
applying the Bartkus exception”). The district court also did not abuse its
discretion in denying an evidentiary hearing since it had the Tripi affidavit. See
United States v. Russotti, 717 F.2d 27, 31 (2d Cir. 1983) (the federal prosecutor’s
detailed affidavit “obviated whatever necessity there may have been for
conducting a hearing.”).
Accordingly, the order of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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