United States District Court, N.D. California, San Francisco Division
ORDER DENYING DEFENDANT'S MOTION FOR DISCOVERY [Re: ECF No. 23]
LAUREL BEELER, Magistrate Judge.
Joshua Lucas pleaded guilty in state court to being a felon in possession of a firearm and was sentenced to a year in county jail. Just before he was released, the federal prosecutor obtained an indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The Double Jeopardy Clause does not prohibit a second prosecution in federal court merely because an accused has been convicted or acquitted by a state court of the same basic charge. See, e.g., Bartkus v. Illinois, 359 U.S. 121, 128-29 (1959). That is because the governments are separate sovereigns. Id. But if the federal authorities commandeer the state's prosecutorial system, making it a sham, a cover for the federal prosecution, and the equivalent of another federal prosecution, then the Double Jeopardy Clause might bar the second federal prosecution. See id. at 123 (dictum). The Ninth Circuit applies this Bartkus exception as the controlling law in the Ninth Circuit. See United States v. Zone, 403 U.S. 1101, 1104 (9th Cir. 2005) (per curiam).
Because he believes that a successive federal prosecution is unusual after a conviction in state court for the same crime, Mr. Lucas suspects collusion and wants discovery to try to prove it. Because Mr. Lucas did not make a preliminary showing of collusion, the court denies the motion for discovery. See Zone, 403 F.3d at 1107.
I. THE STATE PROSECUTION
According to the government, BART police arrested Mr. Lucas on October 15, 2013. Berg Decl., ECF No. 25,  ¶ 1. They tried to question him and two others about whether they had evaded paying fare, and Mr. Lucas gave a fake name. Id. When the officers "went" to check the identification, Mr. Lucas jumped the turnstile and fled. Id. ¶ 2. Officers warned him to stop or he would be tased, and he fled anyway. Id. An officer tased Mr. Lucas, and as he fell, a loaded handgun fell from his shorts. Id. A subsequent search revealed a second gun hidden in his shorts. Id. After he received Miranda warnings, Mr. Lucas admitted that he had the guns and gave a false name because there was a "parolee-at-large" warrant for his arrest. Id.
On October 31, 2013, Mr. Lucas pleaded guilty to one count of being a felon in possession of a firearm. Id., ¶ 3. On December 9, 2013, he received a two-year suspended sentence, one year in county jail, and three years' probation. Id. He completed his sentence on April 15, 2014, because he had 55 days credit from being in custody from arrest to sentencing, and good-time credits reduced his sentence by 50%. Blank Decl., ECF No. 22, ¶ 2; Berg Decl., ¶ 5.
II. THE TIME LINE OF FEDERAL PROSECUTION
The grand jury returned a one-count 922(g) indictment against Mr. Lucas on April 3, 2014, based on his possession of the two firearms on October 15, 2013. See ECF No. 1. The government asked for the indictment to remain under seal, saying, "Because this matter is currently still under investigation and the defendant has not yet been arrested, the Government is concerned that public disclosure of this case may prompt the defendant's accomplices and co-conspirators to try to obstruct the investigation by fleeing or hiding." See Application for Sealing Order, ECF No. 2. Government counsel explained at the hearing that she used a form, that the case is a single-defendant gun case and nothing more, and there are no accomplices or co-conspirators.
On April 14, 2014, the government sought a writ to bring Mr. Lucas from state custody to federal court on April 16, 2014. See ECF No. 3. The writ issued, and Mr. Lucas made his initial appearance on April 16, 2014. See ECF No. 5.
III. THE DISCOVERY
In his discovery request, counsel asked for the following: "I am writing to request that you disclose to me any and all information regarding the coordination of firearms investigations and prosecutions between the federal government here in the Northern District of California and state law enforcement authorities here in the Northern District of California and state law enforcement authorities in the City and County of San Francisco, California, for the past 10 years, and particularly in the instant case of Joshua Lucas, who was arrested on October 15, 2013." Blank Decl., Ex. A, ECF No. 22-1 at 2. The motion narrows the request to five categories and tethers each to discovery that "may have played a role in the successive charging of Mr. Lucas in this case:" (1) any policy or memorandum of understanding between the United States Attorney and the San Francisco District Attorney, Sheriff, or Police Department regarding coordination in the investigation and prosecution of firearms; (2) any documentation of any informal agreement or practice of coordination among these same law enforcement entities; (3) the identity of any cross-designed federal and state law enforcement ...