United States v. Drake

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-50593
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY PAUL DRAKE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
No. 6:03-CR-59-1
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
In this interlocutory appeal, Stanley Drake argues that the
district court erred in denying his motion to dismiss a one-count
indictment for distribution of hydrocodone on the ground of double
jeopardy. We review de novo. See United States v. Delgado, 256
F.3d 264, 270 (5th Cir. 2001).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Drake argues that state officials were aware that he was on
probation by the Texas State Board of Pharmacy for the same mis-
conduct alleged in his federal indictment. He argues that the de-
lay in the instant prosecution by the federal government estab-
lishes a sham prosecution effected by state officials manipulating
the federal prosecution.
The “dual sovereignty” doctrine provides that a person may be
prosecuted for the same act by both state and federal governments.
United States v. Moore, 958 F.2d 646, 650 (5th Cir. 1992). To es-
tablish the narrow exception of a “sham prosecution” to the dual
sovereignty doctrine, Drake must demonstrate that one sovereign
manipulated the other into the subsequent prosecution. See Bartkus
v. Illinois, 359 U.S. 121, 123-24 (1959); United States v. Angle-
ton, 314 F.3d 767, 774 (5th Cir. 2002).
Drake fails to meet the arduous burden of demonstrating a sham
prosecution. See United States v. Cooper, 949 F.2d 737, 751 (5th
Cir. 1991). His allegations of delay alone will not suffice to es-
tablish that the federal government was manipulated by state offi-
cials in the instant proceedings. See Angleton, 314 F.3d at 774.
Because Drake failed to allege sufficient facts to support his al-
legations of a sham prosecution, the district court did not abuse
its discretion in failing to conduct an evidentiary hearing on the
issue of double jeopardy. See Dickens v. Lewis, 750 F.2d 1251,
1255 (5th Cir. 1984); United States v. Harrelson, 705 F.2d 733, 737
2
(5th Cir. 1983).
AFFIRMED.
3