UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

RASHED, MOHAMMED


00-3006a

D.C. Cir. 2000


*	*	*


Williams, Circuit Judge: Mohamed Rashed moved the  district court to
dismiss six of the nine counts of an indict- ment charging him with
terrorism. He claimed that under  the Double Jeopardy Clause his prior
prosecution in Greece  for related offenses foreclosed a prosecution
in the United  States. Rashed recognized that the dual sovereignty
doctrine  normally renders the double jeopardy bar inapplicable in 
cases of prosecutions by different sovereigns. But he invoked  an
exception overriding the dual sovereignty doctrine when  one
sovereign's prosecution is a "sham" for prosecution by the  other. See
Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959).  The district court
denied the motion. United States v.  Rashed, 83 F. Supp. 2d 96 (D.D.C.


We affirm. In no reasonable sense of the word was  Greece's prosecution
of Rashed a sham. Far from being  controlled by the United States, the
Greek trial occurred only  because Greece rejected U.S. demands for
Rashed's extradi- tion, yet was subject to the requirement of Article
7 of the  Montreal Convention to prosecute Rashed itself if it failed
to  extradite him. Convention on Suppression of Unlawful Acts  Against
the Safety of Civil Aviation, Sept. 23, 1971, arts. 7-8,  24 U.S.T.
565, 571 ("Montreal Convention").


* * *


Rashed is charged with participating in various bombing  enterprises
around the world in violation of U.S. law. The  charges include
placing a bomb on an August 11, 1982, Pan  Am flight from Tokyo to
Honolulu, killing one and wounding  15 passengers. Rashed is also
charged with conspiring in the  same month to place a bomb on a Pan Am
aircraft in Rio de  Janeiro, a bomb that luckily was discovered and
removed  safely. The counts of the indictment at issue here, 1 and
3-7,  all relate to the bomb on the Tokyo-Honolulu flight.


At the request of the United States, Greek authorities  detained an
individual bearing a passport in the name of 


Mohammed Hamdan on May 30, 1988. The individual was in  fact Rashed,
who here asserts--at the expense of his notion  that Greece is a U.S.
pawn--that the United States did not  tell Greece of Hamdan's true
identity for fear that otherwise  Greece wouldn't have apprehended
him. After verifying  Rashed's capture, the United States requested
his extradition  under its bilateral extradition treaty with Greece.
Treaty of  Extradition between the United States and the Hellenic 
Republic, May 6, 1931, 47 Stat. 2185, as further interpreted  by the
Protocol, Sept. 2, 1937, 51 Stat. 357. In May 1989 the  Greek Supreme
Court ruled that Rashed could be extradited  on some but not all
counts of the U.S. indictment. Decision  820/1989, Greek Supreme
Court, Sixth Penal Section (May 12,  1989). But the Greek government
delayed handing Rashed  over to the United States and officially
rejected the United  States's extradition request in September 1990.
Instead  Greece chose to pursue Article 7's alternative course, that
of  prosecuting Rashed itself. Montreal Convention, art. 7, 24  U.S.T.


A Greek court found Rashed guilty of intentional homicide  and
placement of explosive devices in an aircraft, but acquit- ted him of
charges of illegal seizure of an aircraft and  instigation of damage
to aircraft. Although sentenced to 15  years in prison, he was
released on December 5, 1996, after  serving eight and a half years.
In the course of his travels  away from Greece he was taken into
custody and arrested by  the FBI.


In denying Rashed's motion to dismiss, the district court  not only
rejected Rashed's sham prosecution theory but also  concluded that
none of the charges satisfied the Blockburger  test for determining
when crimes stated in two charges  constitute "the same offense."
Rashed, 83 F. Supp. 2d at  103-04; see Blockburger v. United States,
284 U.S. 299  (1932). We affirm, but because we reject the sham
prosecu- tion theory we have no need to address the Blockburger


* * *


The Double Jeopardy Clause of the Fifth Amendment  provides that "[n]o
person shall be subject for the same 


offense to be twice put in jeopardy of life and limb." The  clause
forecloses multiple prosecutions for the same offense  by the same
sovereign, but not ones by different sovereigns.  Heath v. Alabama,
474 U.S. 82 (1985) (successive state-state  prosecutions); United
States v. Wheeler, 435 U.S. 313 (1978)  (successive Navajo tribal
court-federal prosecutions); Abbate  v. United States, 359 U.S. 187
(1959) (successive state-federal  prosecutions); United States v.
Rezaq, 134 F.3d 1121, 1128  (D.C. Cir. 1998) (successive
foreign-federal prosecutions).  The exception for dual sovereignty
flows from the under- standing that every sovereign has the authority
to punish  infractions of its own laws. Wheeler, 435 U.S. at 317.


In Bartkus v. United States, 359 U.S. 121 (1959), however,  the Supreme
Court implicitly suggested an exception to the  dual sovereignty
doctrine. Illinois had brought a robbery  charge against a man who had
been acquitted of the same  charge in federal court. The Court upheld
the state prosecu- tion, but emphasized that the evidence failed to
show that  Illinois, in bringing its suit, had been "merely a tool of
the  federal authorities" or that its prosecution had been "a sham 
and a cover for a federal prosecution." Id. at 123-24. A  number of
circuits have accordingly inferred a "sham prose- cution" exception to
dual sovereignty. See, for example,  United States v. Raymer, 941 F.2d
1031, 1037 (10th Cir.  1991); United States v. Bernhardt, 831 F.2d
181, 182 (9th Cir.  1987). United States v. Balsys, 524 U.S. 666
(1998), may  indicate further support for such an exception. There the
 Court held that while fear of prosecution in a foreign country 
normally does not provide a basis for asserting the Fifth  Amendment
right against self-incrimination in a judicial pro- ceeding in the
United States, a different result might be  appropriate if the foreign
nation brought its prosecution "as  much on behalf of the United
States as of the prosecuting  nation" itself. Id. at 698-99.


Several courts have stressed that the Bartkus exception is  a narrow
one and difficult to prove. United States v. Guz- man, 85 F.3d 823,
827 (1st Cir. 1996) (narrow exception);  United States v.
Aboumoussallem, 726 F.2d 906, 910 (2d Cir.  1984) (same); United
States v. Figueroa-Soto, 938 F.2d 1015, 


1019 (9th Cir. 1991) (difficult to prove). Others have ques- tioned
whether the exception even exists. United States v.  Brocksmith, 991
F.2d 1363, 1366 (7th Cir. 1993); United  States v. Patterson, 809 F.2d
244, 247 n. 2 (5th Cir. 1987).  We have uncovered no case where a
court found successive  prosecutions by different nations to fall
under the Bartkus  exception, though defendants have tried the theory
in at least  four cases. See Guzman, 85 F.3d at 827; United States v. 
Baptista-Rodriguez, 17 F.3d 1354, 1361 (11th Cir. 1994);  United
States v. McRary, 616 F.2d 181, 185 (5th Cir. 1980);  United States v.
Richardson, 580 F.2d 946, 947 (9th Cir.  1978). The government
suggests that we should hold the  exception inapplicable to foreign
prosecutions. It reasons  foreign governments are never subject to the
sort of federal  domination that states may be, so that the sham
relationship  is much less probable in the international context.
Improba- bility may imply rarity, but we do not think the sham 
relationship so unlikely as to justify a blanket rule against the 
exception in the foreign prosecution context.


As a preliminary matter, we are not persuaded by Rashed's  suggestion
that the United States may have been in "privity"  with Greece in that
government's prosecution, and that this  privity argues for finding
the sham exception applicable.  (Rashed makes no collateral estoppel
claim per se, identifying  no issue that was resolved in his favor in
the Greek litigation.)  In general, a party is in privity with another
if it "assume[d]  control over litigation" by the other. Montana v.
United  States, 440 U.S. 147, 154 (1979). See also 18 Charles Alan 
Wright, Arthur R. Miller & Edward H. Cooper, Federal  Practice and
Procedure s 4451, at 428 (1981). Wright, Miller  & Cooper suggest that
control is enough if "the nonparty has  the actual measure of control
or opportunity to control that  might reasonably be expected between
two formal coparties."  Id. at 430, citing Jones v. Craig, 212 F.2d
187 (6th Cir. 1954).  Courts have occasionally hinted that privity as
ordinarily  conceived might justify application of collateral estoppel
in  the dual sovereignty context, but, finding privity require- ments
unmet, have not reached the issue. See United States  v. Davis, 906
F.2d 829, 834-35 (2d Cir. 1990); United States 


v. Parcel Land at 5 Bell Rock Road, 896 F.2d 605, 610 (1st  Cir. 1990)
(Breyer, J.). Because double jeopardy is a consti- tutionalized
instance of preclusion principles, Ashe v. Swen- son, 397 U.S. 436,
445-46 (1970), a privity or control test  represents an obvious
candidate as the standard for an excep- tion to the dual sovereignty


Yet in Bartkus the Court used the terms "sham" and  "tool," which
indicate--and have uniformly been understood  by the lower federal
courts to indicate--a far more special  relationship than is suggested
by the concept of privity or  control, namely a relationship with a
strong element of ma- nipulation. See United States v. Liddy, 542 F.2d
76, 79 (D.C.  Cir. 1976) (reading Bartkus as support for the
proposition  that "federal authorities are proscribed from
manipulating  state processes to accomplish that which they cannot
constitu- tionally do themselves"); Guzman, 85 F.3d at 827 (emphasiz-
ing that the Bartkus exception is limited to situations in  which one
sovereign "thoroughly dominates or manipulates  the prosecutorial
machinery of another"). An easy case, for  example, might be where a
nation pursued a prosecution that  did little or nothing to advance
its independent interests,  under threat of withdrawal of American aid
on which its  leadership was heavily dependent. But where the United 
States simply lends a foreign government investigatory re- sources,
the manipulation moniker is out of the question. Id.  at 828;


The Court's presumably deliberate non-use of the privity  concept may
also have reflected a recognition that under the  dual sovereignty
doctrine one sovereign's right to enforce its  criminal law cannot be
classified as the same "cause of action"  as another's, and that the
double jeopardy bar is more akin to  claim preclusion than to issue
preclusion. Cf. Montana v.  United States, 440 U.S. at 154 (stating
that res judicata  applies only to the same cause of action, and a
cause of action  vicariously asserted by a nonparty "differs by
definition from  that which he subsequently seeks to litigate in his
own  right"); but see Richards v. Jefferson County, 517 U.S. 793, 
797-802 (1996) (noting that res judicata may bar claims by  privies,
but finding application of res judicata a violation of 


due process on the specific facts before it). In any event, the 
Bartkus Court's selection of one formula precludes our adop- tion of
another. And here we needn't consider the issue- preclusive effects of
foreign judgments.


The central issue in this case is whether Greece, in prose- cuting
Rashed, was a tool of the United States and the Greek  trial a sham.
Two facts render Rashed's claim implausible.  First, the United States
wanted Greece to extradite Rashed,  not to prosecute him. Greece stood
its ground and refused.  Rashed acknowledges both the U.S. preference
and the Greek  resistance. He points to what we may loosely call
evidence  that the United States threatened Greece with sanctions, but
 that evidence itself shows that the threats (if made at all)  were
always intended to secure extradition. See, for exam- ple, U.S.
Blackmails Greece on Rashid [sic] Matter Through  Aid, Eleftherotypia,
May 27, 1989; New Pressure by the U.S.  for Rashid [sic],
Eleftherotypia, Sept. 30, 1989; Statement on  the Rashid [sic] Case by
Efstratios Korakas, Member of  Greek Parliament representing the
Communist Party of  Greece and Member of European Parliament as of
June  1999. The stalwart Greek resistance dispels any notion that 
Greece had "little or no independent volition" in its proceed- ing.
Liddy, 542 F.2d at 79 (D.C. Cir. 1976); United States v.  38 Whalers
Cove Drive, 954 F.2d 29, 38 (2d Cir. 1992).


Rashed argues that the United States preferred a Greek  prosecution to
Rashed's release. But that the United States  got its second
preference over its third is not evidence either  of control or of a
sham prosecution, especially where the  United States's first option
would have avoided the double  jeopardy problem altogether. Moreover,
the only evidence  Rashed has for the proposition that the United
States sought  a Greek prosecution on terrorism charges is
unsubstantiated  Greek newspaper stories claiming that "[r]umors have
it that  the Americans don't necessarily want Rashid [sic] right now, 
provided he stays in prison and is not let free." U.S.: Cut  Off
Relations with the Arabs!, Pondiki, Feb. 17, 1989. See  also The
Blade--The Americans Find New "Evidence", Pon- diki, Feb. 24, 1989.
Had Rashed read the two stories in their  entirety he would have


want Rashed imprisoned on the terrorism charges. Rather,  the
scuttlebutt offered in the articles is that the United States  wanted
a prison guard to plant a knife on Rashed while he  was awaiting
extradition and have the Greek courts imprison  him for the separate
crime of possession of an illegal weapon.


Second, Greece had an undeniable duty under the Montreal  Convention to
extradite Rashed. Montreal Convention, art.  8, 24 U.S.T. at 571. Once
it rebuffed the United States's  extradition request, however, it was
bound by the same treaty  to prosecute. Id., art. 7, 24 U.S.T. at 571.
Rashed's response  is that the United States tricked Greece into
arresting him;  thus, but for the trick, Greece would never have faced
the  dilemma of having to extradite or prosecute. But even after  the
arrest, Greece could have chosen extradition; yet it  refused to
extradite, contrary to the United States' wishes  and in the face of
alleged congressional hints of foreign aid  sanctions.


Rashed offers other items as clues that Greece was a tool of  the
United States. First, he points to extensive cooperation  between the
United States and Greece in his first trial.  Indeed, U.S. assistance
was so pervasive that Greece gath- ered little of the presented
evidence independently. But  Bartkus acknowledges that extensive law
enforcement and  prosecutorial cooperation between two sovereigns does
not  make a trial by either a sham. Bartkus, 359 U.S. at 122-23. 
Indeed, courts have rejected the sham inference in the face of  more
far-reaching cooperation than that which occurred be- tween Greece and
the United States. See, for example,  United States v. Padilla, 589
F.2d 481, 484 (10th Cir. 1978)  (rejecting a double jeopardy claim
based on successive state- federal prosecutions although state
prosecutor was also the  federal prosecutor and the only piece of
evidence in the case  was the testimony of a state police officer). An
inference of  sham prosecution from cooperation would be especially
weak  where the Montreal Convention applies, for on these facts it 
required the United States to afford Greece the maximum  possible
assistance. Montreal Convention, art. 11(1), 24  U.S.T. at 572.
Finally, it would little advance the purposes of  the Double Jeopardy


bent on prosecution refuse to cooperate with the other,  forcing the
latter to waste its resources in a redundant  investigation.


Rashed also argues that Greece had no independent inter- est in
prosecuting him. It is true that none of the offenses for  which
Rashed was prosecuted in Greece had any specific link  to Greece, such
as it being the site of the offense or the  residence of the victims.
But international law recognizes  stopping terrorism and piracy on (or
above) the high seas as  an interest of all nations, an interest
strong enough to give  the Greek courts jurisdiction. Restatement
(Third) of the  Foreign Relations Law of the United States, ss 404,
esp.  comment a, and 423 (1987). Further, Greece had an interest  in
abiding by its treaty obligations--here the requirement of  the
Montreal Convention, in the event of a refusal of extradi- tion, to
prosecute Rashed "without exception whatsoever and  whether or not the
offense was committed in its territory."  Montreal Convention, art. 7,


The government suggests--and Rashed accepts--that one  possible sign
that the United States was using the Greek  prosecution as its "tool"
would be an indication that it was  able, through the Greek
prosecution, to achieve something it  could not under the U.S.
Constitution. Cf. United States v.  Liddy, 542 F.2d at 79. Of course a
procedural divergence  alone would necessarily give only a weak sign;
states and  nations naturally vary in details of criminal procedure,
so a  rule inferring manipulative intent merely from a few prosecu-
torial advantages in the state or nation that initially prose- cutes
would gut the dual sovereignty rule. Similarly, the fact  that dual
prosecution is likely to increase the probability of  conviction and
the probable aggregate prison sentence is  alone of no consequence, as
dual prosecution always has those  effects. But a prosecutorial
advantage, coupled with some  evidence that the United States had
helped bring it about, or  that its existence had induced the United
States to prefer and  promote the foreign prosecution, might help


All Rashed has to offer on this account is a law, passed by  Greece
just before his trial, that had the effect of allowing  him to be
tried to a panel of three judges rather than a mixed  jury of three
judges and four lay jurors. Greek Law  1897/1990, art. 12, p 1 (Aug.
11, 1990). Rashed does not claim  that the United States pressured
Greece into adopting the  law, or that the United States saw Rashed's
right to a jury  trial as a hurdle to prosecution at home. Further,
the  bedrock fact that the United States sought extradition over a 
Greek prosecution is completely inconsistent with an intent to  bypass
the U.S. Constitution.


Ultimately we find that Rashed has failed to identify evi- dence that
would place his case within the Bartkus "sham  prosecution" exception.
It is possible that, because terrorist  acts committed anywhere are
criminal in all countries,  Rashed might find himself confronted with
a Sisyphean chal- lenge: defeating the claims against him in one
country only to  have them brought against him in another. As this is
only  his second prosecution, the hazard is speculative. We leave  the
solution to another day.


As a corollary to his double jeopardy claim, Rashed seeks  discovery of
information related to his "sham prosecution"  allegation. We see no
reason to disturb the district court's  denial of his request. Because
Rashed's defense here relates  not to refutation of the government's
case in chief but to  establishment of an independent constitutional
bar to the  prosecution, Rule 16(a)(1)(C) of the Fed. R. Crim. P. is 
inapplicable. United States v. Armstrong, 517 U.S. 456, 462- 63
(1996). Armstrong requires the defendant, as a condition  of
discovery, to adduce "some evidence tending to show the  essential
elements of" the defense, not just evidence "materi- al" to that
defense as required by Rule 16. Id. at 462, 470.  In Armstrong, which
involved a claim of selective prosecution,  the Court explained that
this "rigorous standard" was suit- able to prevent undue diversion of
prosecutorial resources  and disclosure of the government's
prosecution strategy. Id.  at 468. Discovery into Rashed's claim of
"sham" prosecution  presents the same issues of prosecutorial


egy, together with sensitive matters of foreign relations. Cf.  United
States v. Yunis, 867 F.2d 617, 622-23 (D.C. Cir. 1989).


In any case, Rashed has not met either the Armstrong or  the Rule
16(a)(1)(C) test. He doesn't claim that the United  States preferred
prosecution to extradition, or that further  discovery would uncover
evidence of such a preference. He  certainly cannot deny that the
Montreal Convention required  prosecution once Greece refused
extradition to the United  States. The most that Rashed suggests would
be uncovered  in discovery is evidence that the United States, upon
learning  that Greece would refuse extradition, encouraged that gov-
ernment to prosecute rather than release Rashed. But such  evidence,
as we have explained, would not sustain a conclusion  that Greece was
a tool of the United States.


The district court's decision to deny Rashed's motion to  dismiss on
grounds of double jeopardy is


Affirmed.