United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2000 Decided December 19, 2000
No. 00-3006
United States of America,
Appellee
v.
Mohammed Rashed, a/k/a Rashid Mohammed,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 87cr00308-02)
Robert L. Tucker, Assistant Federal Public Defender, ar-
gued the cause for appellant. With him on the briefs was A.
J. Kramer, Federal Public Defender.
John F. De Pue, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Scott J. Glick and Susan A. Sinclair, Attorneys, and Wilma
A. Lewis, U.S. Attorney.
Before: Williams, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Mohamed Rashed moved the
district court to dismiss six of the nine counts of an indict-
ment charging him with terrorism. He claimed that under
the Double Jeopardy Clause his prior prosecution in Greece
for related offenses foreclosed a prosecution in the United
States. Rashed recognized that the dual sovereignty doctrine
normally renders the double jeopardy bar inapplicable in
cases of prosecutions by different sovereigns. But he invoked
an exception overriding the dual sovereignty doctrine when
one sovereign's prosecution is a "sham" for prosecution by the
other. See Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959).
The district court denied the motion. United States v.
Rashed, 83 F. Supp. 2d 96 (D.D.C. 1999).
We affirm. In no reasonable sense of the word was
Greece's prosecution of Rashed a sham. Far from being
controlled by the United States, the Greek trial occurred only
because Greece rejected U.S. demands for Rashed's extradi-
tion, yet was subject to the requirement of Article 7 of the
Montreal Convention to prosecute Rashed itself if it failed to
extradite him. Convention on Suppression of Unlawful Acts
Against the Safety of Civil Aviation, Sept. 23, 1971, arts. 7-8,
24 U.S.T. 565, 571 ("Montreal Convention").
* * *
Rashed is charged with participating in various bombing
enterprises around the world in violation of U.S. law. The
charges include placing a bomb on an August 11, 1982, Pan
Am flight from Tokyo to Honolulu, killing one and wounding
15 passengers. Rashed is also charged with conspiring in the
same month to place a bomb on a Pan Am aircraft in Rio de
Janeiro, a bomb that luckily was discovered and removed
safely. The counts of the indictment at issue here, 1 and 3-7,
all relate to the bomb on the Tokyo-Honolulu flight.
At the request of the United States, Greek authorities
detained an individual bearing a passport in the name of
Mohammed Hamdan on May 30, 1988. The individual was in
fact Rashed, who here asserts--at the expense of his notion
that Greece is a U.S. pawn--that the United States did not
tell Greece of Hamdan's true identity for fear that otherwise
Greece wouldn't have apprehended him. After verifying
Rashed's capture, the United States requested his extradition
under its bilateral extradition treaty with Greece. Treaty of
Extradition between the United States and the Hellenic
Republic, May 6, 1931, 47 Stat. 2185, as further interpreted
by the Protocol, Sept. 2, 1937, 51 Stat. 357. In May 1989 the
Greek Supreme Court ruled that Rashed could be extradited
on some but not all counts of the U.S. indictment. Decision
820/1989, Greek Supreme Court, Sixth Penal Section (May 12,
1989). But the Greek government delayed handing Rashed
over to the United States and officially rejected the United
States's extradition request in September 1990. Instead
Greece chose to pursue Article 7's alternative course, that of
prosecuting Rashed itself. Montreal Convention, art. 7, 24
U.S.T. at 571.
A Greek court found Rashed guilty of intentional homicide
and placement of explosive devices in an aircraft, but acquit-
ted him of charges of illegal seizure of an aircraft and
instigation of damage to aircraft. Although sentenced to 15
years in prison, he was released on December 5, 1996, after
serving eight and a half years. In the course of his travels
away from Greece he was taken into custody and arrested by
the FBI.
In denying Rashed's motion to dismiss, the district court
not only rejected Rashed's sham prosecution theory but also
concluded that none of the charges satisfied the Blockburger
test for determining when crimes stated in two charges
constitute "the same offense." Rashed, 83 F. Supp. 2d at
103-04; see Blockburger v. United States, 284 U.S. 299
(1932). We affirm, but because we reject the sham prosecu-
tion theory we have no need to address the Blockburger issue.
* * *
The Double Jeopardy Clause of the Fifth Amendment
provides that "[n]o person shall be subject for the same
offense to be twice put in jeopardy of life and limb." The
clause forecloses multiple prosecutions for the same offense
by the same sovereign, but not ones by different sovereigns.
Heath v. Alabama, 474 U.S. 82 (1985) (successive state-state
prosecutions); United States v. Wheeler, 435 U.S. 313 (1978)
(successive Navajo tribal court-federal prosecutions); Abbate
v. United States, 359 U.S. 187 (1959) (successive state-federal
prosecutions); United States v. Rezaq, 134 F.3d 1121, 1128
(D.C. Cir. 1998) (successive foreign-federal prosecutions).
The exception for dual sovereignty flows from the under-
standing that every sovereign has the authority to punish
infractions of its own laws. Wheeler, 435 U.S. at 317.
In Bartkus v. United States, 359 U.S. 121 (1959), however,
the Supreme Court implicitly suggested an exception to the
dual sovereignty doctrine. Illinois had brought a robbery
charge against a man who had been acquitted of the same
charge in federal court. The Court upheld the state prosecu-
tion, but emphasized that the evidence failed to show that
Illinois, in bringing its suit, had been "merely a tool of the
federal authorities" or that its prosecution had been "a sham
and a cover for a federal prosecution." Id. at 123-24. A
number of circuits have accordingly inferred a "sham prose-
cution" exception to dual sovereignty. See, for example,
United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir.
1991); United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir.
1987). United States v. Balsys, 524 U.S. 666 (1998), may
indicate further support for such an exception. There the
Court held that while fear of prosecution in a foreign country
normally does not provide a basis for asserting the Fifth
Amendment right against self-incrimination in a judicial pro-
ceeding in the United States, a different result might be
appropriate if the foreign nation brought its prosecution "as
much on behalf of the United States as of the prosecuting
nation" itself. Id. at 698-99.
Several courts have stressed that the Bartkus exception is
a narrow one and difficult to prove. United States v. Guz-
man, 85 F.3d 823, 827 (1st Cir. 1996) (narrow exception);
United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir.
1984) (same); United States v. Figueroa-Soto, 938 F.2d 1015,
1019 (9th Cir. 1991) (difficult to prove). Others have ques-
tioned whether the exception even exists. United States v.
Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993); United
States v. Patterson, 809 F.2d 244, 247 n. 2 (5th Cir. 1987).
We have uncovered no case where a court found successive
prosecutions by different nations to fall under the Bartkus
exception, though defendants have tried the theory in at least
four cases. See Guzman, 85 F.3d at 827; United States v.
Baptista-Rodriguez, 17 F.3d 1354, 1361 (11th Cir. 1994);
United States v. McRary, 616 F.2d 181, 185 (5th Cir. 1980);
United States v. Richardson, 580 F.2d 946, 947 (9th Cir.
1978). The government suggests that we should hold the
exception inapplicable to foreign prosecutions. It reasons
foreign governments are never subject to the sort of federal
domination that states may be, so that the sham relationship
is much less probable in the international context. Improba-
bility may imply rarity, but we do not think the sham
relationship so unlikely as to justify a blanket rule against the
exception in the foreign prosecution context.
As a preliminary matter, we are not persuaded by Rashed's
suggestion that the United States may have been in "privity"
with Greece in that government's prosecution, and that this
privity argues for finding the sham exception applicable.
(Rashed makes no collateral estoppel claim per se, identifying
no issue that was resolved in his favor in the Greek litigation.)
In general, a party is in privity with another if it "assume[d]
control over litigation" by the other. Montana v. United
States, 440 U.S. 147, 154 (1979). See also 18 Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure s 4451, at 428 (1981). Wright, Miller
& Cooper suggest that control is enough if "the nonparty has
the actual measure of control or opportunity to control that
might reasonably be expected between two formal coparties."
Id. at 430, citing Jones v. Craig, 212 F.2d 187 (6th Cir. 1954).
Courts have occasionally hinted that privity as ordinarily
conceived might justify application of collateral estoppel in
the dual sovereignty context, but, finding privity require-
ments unmet, have not reached the issue. See United States
v. Davis, 906 F.2d 829, 834-35 (2d Cir. 1990); United States
v. Parcel Land at 5 Bell Rock Road, 896 F.2d 605, 610 (1st
Cir. 1990) (Breyer, J.). Because double jeopardy is a consti-
tutionalized instance of preclusion principles, Ashe v. Swen-
son, 397 U.S. 436, 445-46 (1970), a privity or control test
represents an obvious candidate as the standard for an excep-
tion to the dual sovereignty doctrine.
Yet in Bartkus the Court used the terms "sham" and
"tool," which indicate--and have uniformly been understood
by the lower federal courts to indicate--a far more special
relationship than is suggested by the concept of privity or
control, namely a relationship with a strong element of ma-
nipulation. See United States v. Liddy, 542 F.2d 76, 79 (D.C.
Cir. 1976) (reading Bartkus as support for the proposition
that "federal authorities are proscribed from manipulating
state processes to accomplish that which they cannot constitu-
tionally do themselves"); Guzman, 85 F.3d at 827 (emphasiz-
ing that the Bartkus exception is limited to situations in
which one sovereign "thoroughly dominates or manipulates
the prosecutorial machinery of another"). An easy case, for
example, might be where a nation pursued a prosecution that
did little or nothing to advance its independent interests,
under threat of withdrawal of American aid on which its
leadership was heavily dependent. But where the United
States simply lends a foreign government investigatory re-
sources, the manipulation moniker is out of the question. Id.
at 828; Baptista-Rodriguez, 17 F.3d at 1361.
The Court's presumably deliberate non-use of the privity
concept may also have reflected a recognition that under the
dual sovereignty doctrine one sovereign's right to enforce its
criminal law cannot be classified as the same "cause of action"
as another's, and that the double jeopardy bar is more akin to
claim preclusion than to issue preclusion. Cf. Montana v.
United States, 440 U.S. at 154 (stating that res judicata
applies only to the same cause of action, and a cause of action
vicariously asserted by a nonparty "differs by definition from
that which he subsequently seeks to litigate in his own
right"); but see Richards v. Jefferson County, 517 U.S. 793,
797-802 (1996) (noting that res judicata may bar claims by
privies, but finding application of res judicata a violation of
due process on the specific facts before it). In any event, the
Bartkus Court's selection of one formula precludes our adop-
tion of another. And here we needn't consider the issue-
preclusive effects of foreign judgments.
The central issue in this case is whether Greece, in prose-
cuting Rashed, was a tool of the United States and the Greek
trial a sham. Two facts render Rashed's claim implausible.
First, the United States wanted Greece to extradite Rashed,
not to prosecute him. Greece stood its ground and refused.
Rashed acknowledges both the U.S. preference and the Greek
resistance. He points to what we may loosely call evidence
that the United States threatened Greece with sanctions, but
that evidence itself shows that the threats (if made at all)
were always intended to secure extradition. See, for exam-
ple, U.S. Blackmails Greece on Rashid [sic] Matter Through
Aid, Eleftherotypia, May 27, 1989; New Pressure by the U.S.
for Rashid [sic], Eleftherotypia, Sept. 30, 1989; Statement on
the Rashid [sic] Case by Efstratios Korakas, Member of
Greek Parliament representing the Communist Party of
Greece and Member of European Parliament as of June
1999. The stalwart Greek resistance dispels any notion that
Greece had "little or no independent volition" in its proceed-
ing. Liddy, 542 F.2d at 79 (D.C. Cir. 1976); United States v.
38 Whalers Cove Drive, 954 F.2d 29, 38 (2d Cir. 1992).
Rashed argues that the United States preferred a Greek
prosecution to Rashed's release. But that the United States
got its second preference over its third is not evidence either
of control or of a sham prosecution, especially where the
United States's first option would have avoided the double
jeopardy problem altogether. Moreover, the only evidence
Rashed has for the proposition that the United States sought
a Greek prosecution on terrorism charges is unsubstantiated
Greek newspaper stories claiming that "[r]umors have it that
the Americans don't necessarily want Rashid [sic] right now,
provided he stays in prison and is not let free." U.S.: Cut
Off Relations with the Arabs!, Pondiki, Feb. 17, 1989. See
also The Blade--The Americans Find New "Evidence", Pon-
diki, Feb. 24, 1989. Had Rashed read the two stories in their
entirety he would have learned that the United States did not
want Rashed imprisoned on the terrorism charges. Rather,
the scuttlebutt offered in the articles is that the United States
wanted a prison guard to plant a knife on Rashed while he
was awaiting extradition and have the Greek courts imprison
him for the separate crime of possession of an illegal weapon.
Second, Greece had an undeniable duty under the Montreal
Convention to extradite Rashed. Montreal Convention, art.
8, 24 U.S.T. at 571. Once it rebuffed the United States's
extradition request, however, it was bound by the same treaty
to prosecute. Id., art. 7, 24 U.S.T. at 571. Rashed's response
is that the United States tricked Greece into arresting him;
thus, but for the trick, Greece would never have faced the
dilemma of having to extradite or prosecute. But even after
the arrest, Greece could have chosen extradition; yet it
refused to extradite, contrary to the United States' wishes
and in the face of alleged congressional hints of foreign aid
sanctions.
Rashed offers other items as clues that Greece was a tool of
the United States. First, he points to extensive cooperation
between the United States and Greece in his first trial.
Indeed, U.S. assistance was so pervasive that Greece gath-
ered little of the presented evidence independently. But
Bartkus acknowledges that extensive law enforcement and
prosecutorial cooperation between two sovereigns does not
make a trial by either a sham. Bartkus, 359 U.S. at 122-23.
Indeed, courts have rejected the sham inference in the face of
more far-reaching cooperation than that which occurred be-
tween Greece and the United States. See, for example,
United States v. Padilla, 589 F.2d 481, 484 (10th Cir. 1978)
(rejecting a double jeopardy claim based on successive state-
federal prosecutions although state prosecutor was also the
federal prosecutor and the only piece of evidence in the case
was the testimony of a state police officer). An inference of
sham prosecution from cooperation would be especially weak
where the Montreal Convention applies, for on these facts it
required the United States to afford Greece the maximum
possible assistance. Montreal Convention, art. 11(1), 24
U.S.T. at 572. Finally, it would little advance the purposes of
the Double Jeopardy Clause to require that the country more
bent on prosecution refuse to cooperate with the other,
forcing the latter to waste its resources in a redundant
investigation.
Rashed also argues that Greece had no independent inter-
est in prosecuting him. It is true that none of the offenses for
which Rashed was prosecuted in Greece had any specific link
to Greece, such as it being the site of the offense or the
residence of the victims. But international law recognizes
stopping terrorism and piracy on (or above) the high seas as
an interest of all nations, an interest strong enough to give
the Greek courts jurisdiction. Restatement (Third) of the
Foreign Relations Law of the United States, ss 404, esp.
comment a, and 423 (1987). Further, Greece had an interest
in abiding by its treaty obligations--here the requirement of
the Montreal Convention, in the event of a refusal of extradi-
tion, to prosecute Rashed "without exception whatsoever and
whether or not the offense was committed in its territory."
Montreal Convention, art. 7, 24 U.S.T. at 571.
The government suggests--and Rashed accepts--that one
possible sign that the United States was using the Greek
prosecution as its "tool" would be an indication that it was
able, through the Greek prosecution, to achieve something it
could not under the U.S. Constitution. Cf. United States v.
Liddy, 542 F.2d at 79. Of course a procedural divergence
alone would necessarily give only a weak sign; states and
nations naturally vary in details of criminal procedure, so a
rule inferring manipulative intent merely from a few prosecu-
torial advantages in the state or nation that initially prose-
cutes would gut the dual sovereignty rule. Similarly, the fact
that dual prosecution is likely to increase the probability of
conviction and the probable aggregate prison sentence is
alone of no consequence, as dual prosecution always has those
effects. But a prosecutorial advantage, coupled with some
evidence that the United States had helped bring it about, or
that its existence had induced the United States to prefer and
promote the foreign prosecution, might help support the
"tool" inference.
All Rashed has to offer on this account is a law, passed by
Greece just before his trial, that had the effect of allowing
him to be tried to a panel of three judges rather than a mixed
jury of three judges and four lay jurors. Greek Law
1897/1990, art. 12, p 1 (Aug. 11, 1990). Rashed does not claim
that the United States pressured Greece into adopting the
law, or that the United States saw Rashed's right to a jury
trial as a hurdle to prosecution at home. Further, the
bedrock fact that the United States sought extradition over a
Greek prosecution is completely inconsistent with an intent to
bypass the U.S. Constitution.
Ultimately we find that Rashed has failed to identify evi-
dence that would place his case within the Bartkus "sham
prosecution" exception. It is possible that, because terrorist
acts committed anywhere are criminal in all countries,
Rashed might find himself confronted with a Sisyphean chal-
lenge: defeating the claims against him in one country only to
have them brought against him in another. As this is only
his second prosecution, the hazard is speculative. We leave
the solution to another day.
As a corollary to his double jeopardy claim, Rashed seeks
discovery of information related to his "sham prosecution"
allegation. We see no reason to disturb the district court's
denial of his request. Because Rashed's defense here relates
not to refutation of the government's case in chief but to
establishment of an independent constitutional bar to the
prosecution, Rule 16(a)(1)(C) of the Fed. R. Crim. P. is
inapplicable. United States v. Armstrong, 517 U.S. 456, 462-
63 (1996). Armstrong requires the defendant, as a condition
of discovery, to adduce "some evidence tending to show the
essential elements of" the defense, not just evidence "materi-
al" to that defense as required by Rule 16. Id. at 462, 470.
In Armstrong, which involved a claim of selective prosecution,
the Court explained that this "rigorous standard" was suit-
able to prevent undue diversion of prosecutorial resources
and disclosure of the government's prosecution strategy. Id.
at 468. Discovery into Rashed's claim of "sham" prosecution
presents the same issues of prosecutorial resources and strat-
egy, together with sensitive matters of foreign relations. Cf.
United States v. Yunis, 867 F.2d 617, 622-23 (D.C. Cir. 1989).
In any case, Rashed has not met either the Armstrong or
the Rule 16(a)(1)(C) test. He doesn't claim that the United
States preferred prosecution to extradition, or that further
discovery would uncover evidence of such a preference. He
certainly cannot deny that the Montreal Convention required
prosecution once Greece refused extradition to the United
States. The most that Rashed suggests would be uncovered
in discovery is evidence that the United States, upon learning
that Greece would refuse extradition, encouraged that gov-
ernment to prosecute rather than release Rashed. But such
evidence, as we have explained, would not sustain a conclusion
that Greece was a tool of the United States.
The district court's decision to deny Rashed's motion to
dismiss on grounds of double jeopardy is
Affirmed.