The opinion of the court was delivered by: Chief Judge Kane
Before the Court are four pre-trial motions filed by Defendant: a motion to dismiss the indictment (Doc. No. 28); a motion to compel the government to disclose 404(b) evidence (Doc. No. 30); a motion for discovery or, alternatively, a bill of particulars (Doc. No. 32); and a motion to suppress identification testimony (Doc. No. 34). The government has filed an omnibus brief opposing these motions (Doc. No. 44), to which Defendant replied (Doc. No.47). Defendant's motion to suppress identification testimony will be granted and the remaining motions will be denied.
On December 14, 2005, the grand jury issued a one-count indictment, charging Defendant Roderick Morris with distribution and possession with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841, "[b]eginning in approximately 2003 and continuing through on or about December 1, 2005." (Doc. No. 47, at 3.) Defendant entered a plea of not guilty on January 23, 2006. (Doc. No. 13.)
Previously, Defendant was tried and acquitted in a Lebanon County, Pennsylvania, court ("state court") of a charge related to an alleged drug deal on March 24, 2005. Following his acquittal, Assistant Attorney General Alice Fisher, through her deputy, John Keeney, granted a waiver to the Department of Justice's Petite policy,*fn1 thereby approving Defendant's federal prosecution "because the state prosecution has left a substantial federal interest unvindicated." Id. (citing Doc. No. 19, Defendant's Ex. 2.) On April 14, 2006, Defendant filed the motions that are the subject of this memorandum. (Doc. Nos. 28, 30, 32, 34.)
A. Motion to Dismiss the Indictment
Defendant argues that his acquittal in state court should preclude subsequent trial in federal court regarding substantially the same issues. While Defendant's argument is compelling from a public policy standpoint, his argument that the Fifth Amendment prohibition against double jeopardy prohibits such a trial is not. As the government's brief correctly notes, established case law makes it clear that Defendant's subsequent federal prosecution does not constitute double jeopardy.
The Fifth Amendment to the United States Constitution provides, "[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., amend. V. The United States Supreme Court has explained that the constitutional guarantee against double jeopardy consists of three separate constitutional protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1968).
Notwithstanding the constitutional guarantee against double jeopardy, the Supreme Court has recognized an exception to the guarantee that emanates from our federal system of government. This exception, commonly referred to as the dual-sovereignty doctrine, allows federal prosecutors to prosecute a defendant on federal charges if there exists a federal interest that was left unvindicated by a prior state prosecution, notwithstanding the fact that a defendant had already been charged and tried in state court. Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959). As Defendant notes, judges in the United States Court of Appeals for the Third Circuit have questioned and criticized the dual-sovereignty doctrine, but have recognized that only the Supreme Court can overturn the rule, and the Supreme Court has not yet done so. See United States v. Wilson, 413 F.3d 382, 394 (3d Cir. 2005) (Aldisert, J., dissenting); United States v. Grimes, 641 F.2d 96, 104 (3d Cir. 1981).
In this case, Defendant objects to the dual-sovereignty doctrine but concedes that the Third Circuit has stated that "the dual sovereignty doctrine [stands] until the Supreme Court [strikes] it down." (Doc. No. 29, at 6.) Accordingly, Defendant's motion to dismiss the indictment as being in violation of the prohibition on double jeopardy must be denied.
2. Vindictive Prosecution
Defendant also argues that the indictment should be dismissed because it constitutes vindictive prosecution, in that federal prosecutors unreasonably "up[ped] the ante" in terms of potential sentencing as compared to the jail time he faced in state court, after Defendant was acquitted in state court. (Doc. No. 29, at 8.) The government maintains that it enjoys prosecutorial discretion to bring the charge against Defendant and further asserts that the discrepancy between state and federal ...