United States v. Cortrayer Zone

403 F.3d 1101 UNITED STATES of America, Plaintiff-Appellee, v. Cortrayer ZONE, Defendant-Appellant. No. 03-10361. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 13, 2004. Filed April 18, 2005. COPYRIGHT MATERIAL OMITTED Jason F. Carr and Alexander Modaber, Assistant Federal Public Defenders, Las Vegas, NV, for the defendant-appellant. Kathleen Bliss, Assistant United States Attorney, Organized Crime Strike Force, Las Vegas, NV, for the plaintiff-appellee. Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CR-02-00475-PMP/LRL. Before WALLACE, KOZINSKI and THOMAS, Circuit Judges. PER CURIAM Opinion; Concurrence by Judge WALLACE. PER CURIAM. 1 Cortrayer Zone appeals from the district court's order denying his motion to dismiss his federal criminal indictment. He argues that the instant federal prosecution violates his rights under the Double Jeopardy Clause because federal prosecutors orchestrated a previous state plea agreement in order to obtain a sworn admission for use in the federal proceedings. Because Zone has produced no evidence that "the state in bringing its prosecution was…

concurring.

I agree that we have jurisdiction to review the district court’s order denying Zone’s motion to dismiss on double jeopardy grounds; that the district court did not err in denying that motion; and that Zone is not entitled to an evidentiary hearing on his double jeopardy claim. I write separately, however, to discuss the majority’s analysis of whether we have jurisdiction to review the district court’s denial of Zone’s discovery request. I would dismiss the appeal from the district court’s order denying discovery for a lack of jurisdiction. I therefore concur in all but Part V of the opinion and concur in the result.

Pursuant to 28 U.S.C. § 1291 , we “have jurisdiction of appeals from all final decisions of the district courts.” In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), the Supreme Court established the “collateral order doctrine,” which provides an exception to section 1291’s requirement of finality. In order to ensure that the exception does not swallow the rule, we have often expressed a reluctance, if not outright unwillingness, to allow interlocutory review of discovery orders under the collateral order…

PER CURIAM Opinion; Concurrence by Judge WALLACE.

Cortrayer Zone appeals from the district court’s order denying his motion to dismiss his federal criminal indictment. He argues that the instant federal prosecution violates his rights under the Double Jeopardy Clause because federal prosecutors orchestrated a previous state plea agreement in order to obtain a sworn admission for use in the federal proceedings. Because Zone has produced no evidence that “the state in bringing its prosecution was merely a tool of the federal authorities,” United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (9th Cir.1991) (quoting Bartkus v. Illinois, 359 U.S. 121, 123 , 79 S.Ct. 676 , 3 L.Ed.2d 684 (1959)) (internal quotation marks omitted), we affirm the district court’s denial of his motion to dismiss and deny his request to remand for an eviden-tiary hearing and further discovery.

I

In early 2002, law enforcement officials in the Las Vegas area assembled a federally funded task force to address escalating gun violence. According to United States Attorney Daniel Bogden, the task force’s ultimate objective was to “attack the violence of gun offenders” and “tak[e] them off the streets…