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Terry Clark has seen a lot in his 15 years as a federal prosecutor, but he’s never seen an opinion as long as the one recently issued by the judge in a capital murder case he’s handling. But solo Michael Ramsey and Stanley G. Schneider of Schneider & McKinney, two of the Houston lawyers who represent Robert Angleton in his second trial for the 1997 murder of his wife, Doris Angleton, welcome the hefty 102-page opinion issued July 19 by U.S. District Judge Lee H. Rosenthal, of the Southern District of Texas, in response to their motion to dismiss in U.S. v. Robert N. Angleton. They welcome it, even though she denied their motion. “This is good news for us,” Ramsey says. “She discusses all our issues and finds that they are not frivolous.” That finding entitles Angleton to an expedited interlocutory appeal. The issue: whether the double jeopardy clause of the Fifth Amendment bars prosecution of the pending federal case because of Angleton’s prior trial and acquittal on state capital murder charges. Angleton plans to appeal to the 5th U.S. Circuit Court of Appeals within the next few days, Schneider says. The appeal will postpone the trial that was scheduled to begin Aug. 19. The opinion noted that in 1997, a Texas grand jury indicted Angleton for the capital murder of his wife, Doris Angleton, alleging that he promised to pay his brother, Roger Angleton, to have his wife killed. The jury acquitted Robert Angleton in August 1998. According to the opinion, it was the first acquittal in a capital murder case tried in Harris County since the death penalty was reinstated in 1976. Roger Angleton was indicted by a grand jury, but he committed suicide in 1998 before his trial, leaving a controversial note saying he committed the crime by himself. In January 2002, a federal grand jury indicted Robert Angleton under the federal murder-for-hire statute — Title 18 of the U.S. Code, � 1958 — alleging that he had promised to pay his brother to have his wife killed and caused Roger to use interstate facilities to accomplish the murder. Robert Angleton moved to dismiss on the basis of the prior trial and acquittal. In his motion Angleton challenged the federal indictment, contending that state officials were extensively involved in his federal indictment and prosecution, which triggered a “sham prosecution” exception to the dual sovereignty doctrine. The doctrine allows the federal and state governments to prosecute someone for the same act if it violates laws of each government. Angleton also argued that there is no separate federal basis for this prosecution because the federal murder-for-hire statute incorporates the Texas capital murder statute. Moreover, he argues, making a federal case out of what historically has been a state law crime properly tried in state court, raises issues of due process, federalism and the limits on Congress’ power under the commerce clause. The federal government, for its part, asserted that the cooperation between the state and federal governments did not trigger the sham prosecution exception and that the dual sovereignty doctrine permits the federal government to prosecute Angleton for the separate federal offense alleged. The government also argued that murder for hire is a federal crime when its perpetration involves the use of interstate travel or facilities in interstate commerce. The government asserted that the law is so clear that Angleton’s argument should be deemed frivolous, which would allow the court to retain jurisdiction and proceed with the trial despite an appeal. Criminal-law Professor Neil McCabe, who read the briefs for the defense and government, says the defense “did about the best job you can” trying to show that the dual sovereignty doctrine does not apply or that it should be abandoned as a theory. But while Rosenthal could have ruled that this case is distinguishable from the run-of-the-mill dual sovereignty case by implicating an exception, she’s not authorized to say that the dual sovereignty doctrine is no longer good — only the U.S. Supreme Court can say that, says McCabe of Houston’s South Texas College of Law. However, McCabe adds, “if there is an area of criminal procedure where the U.S. Supreme Court has found itself overruling its own cases, it’s been double jeopardy. I teach this in my classes — some decisions have lasted only three years before the court says, ‘We figured out we were wrong.’” In addition, McCabe says that in recent years the Supreme Court has used commerce clause analysis to limit the power of the federal government. EXTENSIVE PRECEDENT Rosenthal’s opinion analyzes each argument at length before concluding that double jeopardy will not bar the federal prosecution. “The opinion was … very well-written,” says Clark, an Assistant U.S. Attorney for the Southern District of Texas. “She [Rosenthal] obviously read both our brief and the defense briefs and in the opinion agreed with us on the law.” The government’s strongest argument, of course, is the extensive precedent in its favor, Clark says. For example, take the discussion of the “sham prosecution” exception derived from Bartkus v. Illinois, a 1959 U.S. Supreme Court case. Angleton urges in his motion that the sham prosecution exception applies to his case because of the extensive involvement of the Houston Police Department and other state officials in the federal prosecution. Angleton contends that the federal government is not pursuing an independent sovereign interest but instead is acting as a surrogate for the state by bringing a second prosecution. Twenty pages of the opinion examine whether such an exception would apply before Rosenthal concluded that the facts do not support an inference of collusion or sham prosecution. In reaching her conclusion, the judge said that although 5th Circuit cases involving Bartkus are few and not directly on point, such cases, as well as those from other circuits, make it clear that Angleton’s double jeopardy claim based on the Bartkus exception is precluded by law. But even though precedent may favor the government, Ramsey and Schneider say they are pleased that the opinion discusses every point the defense made, pros and cons. “It overrules the motion, but it is very kind,” Ramsey says. “If you read between the lines, there are several times it would appear she would rule in our favor but for a precedent that goes against us, which is really what we are asking — to go up and test the theories that are now, we claim, outmoded.” Angleton notes in his brief that this case presents a rare situation. He contends the “second indictment seeks a second bite at the same statutory apple.” Angleton claims that the federal indictment incorporates and derivatively enforces the state statute, which renders the dual sovereign doctrine inapplicable. Schneider calls this a case of first impression. “This issue has never been raised: that the federal statute incorporates the state statute and that the federal government gets its authority for prosecution from the state statute … . It is a fascinating issue that has never been addressed by any court in the United States.” Schneider estimates having spent 50 to 60 hours on the incorporation issue, seeing where Bartkus went, reading law review articles, cases, looking at trends, congressional intent and various related statutes. Rosenthal noted in her opinion that only one reported circuit court case — Basile v. United States, issued in 1997 by the 8th U.S. Circuit Court of Appeals — considered a double jeopardy challenge to a successive prosecution under the federal murder-for-hire statute following a state prosecution for capital murder. Moreover, there is no indication that the defendants in that case raised the argument that incorporation of the state statute into the federal law precluded the successive prosecution by the federal government, Rosenthal wrote. Her opinion noted that Angleton’s legal argument is “not addressed or specifically foreclosed by decisions of the Supreme Court or this circuit.” Elsewhere, the opinion noted that the U.S. Supreme Court has not considered a case involving successive state and federal prosecutions for the same offense since 1959, when it decided Bartkus and Abbate v. United States. Rosenthal noted that the Supreme Court in 1969′s Benton v. Maryland held that the double jeopardy clause of the Fifth Amendment is applicable to the states, but the high court has not examined the impact of the holding on the dual sovereignty doctrine. Rosenthal found that the Supreme Court’s silence contrasts with its approach to the dual sovereignty doctrine in cases decided under the Fourth Amendment and self-incrimination clause of the Fifth Amendment after they were held to apply to the state. And despite the decision in Benton to apply the double jeopardy clause to the states, the Supreme Court has not examined whether the dual sovereignty doctrine applied in Bartkus and Abbate should be re-examined, Rosenthal wrote. Angleton argues in his motion that changes in the dual sovereignty doctrine, the increasing federalization of criminal law and changes in the jurisprudence of the commerce clause make federal prosecution hard to justify. “The legal world is moving with regard to the breadth of the commerce clause,” Ramsey says. “Why can the federals in a situation where there is no clear federal interest simply intervene at their whim and say they are going to prosecute crimes of violence because they affect interstate commerce?” he asks. “They [the defense] want to narrow the scope of interstate commerce,” counters Clark. But when you have an egregious case like this — Doris Angleton was shot 13 times — and “interstate commerce is involved in that homicide, the federal interest needs to be vindicated,” Clark says. The real problem, Ramsey says, is that once you get into a situation where there is joint jurisdiction for virtually everything, every time a state prosecutor is dissatisfied with the outcome, he’s going to call a friend at the federal building and say, “Take a look at this and see if you can’t reprosecute and get it right under the federal statute.” Why should the work that is done in our state court be good enough to rely on to execute people but not good enough to free people when they are acquitted?” Ramsey asks. Rosenthal’s opinion recognized that Angleton is far from the first to argue that some of the assumptions on which relevant case law rests have changed and that the Supreme Court has not specifically addressed the federalism aspects of the dual sovereignty doctrine since Bartkus in 1959. And that was before the high court recognized that the double jeopardy clause applies to the states, before the vast increase in federal criminal law, and before the Court recognized limits to the commerce clause. Nonetheless, Rosenthal stated that circuit courts consistently reject arguments like Angleton’s seeking to limit the dual sovereignty doctrine. Thus, while Rosenthal held that under existing precedent Angleton’s double jeopardy claim is without merit, she stated that his argument for modifying and narrowing the dual sovereignty doctrine as applied to the facts disclosed on the record is not frivolous. “It may well fail, but is not frivolously asserted,” the judge concluded. “This case can be decided narrowly on the double prosecution for exactly the same statute or it can cause a re-examination of the relationship of law enforcement to federalism,” Ramsey says. He hopes for the latter. “It is one of those cases that has the kind of issues the Supreme Court has not dealt with for generations, and it very easily, with the confused state of the law as it is now, could end up before the Supreme Court,” he says. Schneider says the appeal process probably will stretch to the end of the year.

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