Full opinion text
MEMORANDUM AND OPINION ROSENTHAL, District Judge. In 1997, a Texas grand jury indicted Robert N. Angleton for the capital murder of his wife, Doris Angleton. The indictment alleged that Angleton had promised to pay his brother to have Doris Angleton killed. In August 1998, a Texas state jury acquitted Robert Angleton of the capital murder charge. In January 2002, a federal grand jury indicted Robert Angleton under the federal murder for hire statute, alleging that he had promised to pay his brother to have Doris Angleton killed and caused his brother to travel in interstate commerce and use interstate facilities to accomplish the murder. Angleton has moved to dismiss this federal indictment on the basis of his prior trial and acquittal on the state capital murder charge. The question before this court is whether the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars this prosecution and requires the dismissal of the federal indictment. This court concludes that although the State of Texas would be foreclosed from reprosecuting Angleton for the murder of his wife, the dual sovereignty doctrine, which permits the federal and state governments to prosecute an individual for the same act if that act violates the laws of each government, defeats Angleton’s motion to dismiss. Long-standing precedent affirming and applying the dual sovereignty doctrine leads this court to conclude that double jeopardy does not bar this federal prosecution. However, not all of Angleton’s arguments are frivolous, as that term is defined in United States v. Dunbar, 611 F.2d 985 (5th Cir.1980), and United States v. Kalish, 690 F.2d 1144, 1147 (1982), or made for the sole purpose of delaying this federal trial. Based on the finding of nonfrivolousness, Angleton is entitled to an expedited interlocutory appeal under Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) and Dunbar, 611 F.2d 985, that will postpone the trial until a determination is made of the merits of the appeal. The reasons for these rulings are explained in detail below. 1. Background In April 1997, Doris Angleton was shot to death in her home in Houston, Texas. An extensive investigation followed. The primary investigators were Houston Police Department Homicide Detective Sergeants Jerry Novak and David Ferguson. Suspicion focused on Robert Angleton, from whom Doris Angleton was seeking a divorce. Robert Angleton was familiar to state and federal law enforcement officers as a professional bookmaker who cooperated with local and federal law enforcement agencies, working as an informant while continuing his illegal activities. The investigation led the police officers to suspect that Roger Angleton, Robert Angleton’s brother, was involved in the murder. Roger Angleton had lived in San Diego, California. (Docket Entry No. 38, Ex. 6, Vol. 6, at 166). Police developed evidence showing that shortly before the murder of Doris Angleton, Roger Angleton used various aliases to register in different hotel rooms and rent two cars in Houston, Texas. (Id. at 151-169; Vol. 7, at 7-43). A few days after the murder, Roger Angle-ton abandoned a suitcase at an airport security checkpoint after two guns were detected. (Id. at 25-37; 60-62; 157-58). Roger Angleton was later arrested in Las Vegas, Nevada on unrelated California warrants. (Id. at 129-151). Police also developed evidence that showed mail communications between Angleton and his brother shortly before and after the murder. (Docket Entry No. 64, Ex. 3, at 14, 18). In the fall of 1997, following Roger An-gleton’s arrest in Las Vegas, Nevada, police arrested both brothers for Doris An-gleton’s murder. In October 1997, a Texas grand jury returned separate indictments against Roger Angleton and Robert Angle-ton for capital murder under section 19.03 of the Texas Penal Code. The Texas indictment against Robert Angleton alleged as follows: The duly organized Grand Jury of Harris County, presents in the District Court of Harris County, Texas, that in Harris County, Texas, ROBERT NICHOLAS ANGLETON, hereinafter styled the Defendant, on or about APRIL 16, 1997, did then and there unlawfully, intentionally, and knowingly cause the death of DORIS ANGLETON, hereafter styled the Complainant, by promising money to ROGER ANGLETON to cause the death of the Complainant for remuneration and the promise of remuneration. (Docket Entry No. 38, Ex. 2). Angleton and his brother were held without bond pending trial. In February 1997, Roger Angleton committed suicide in jail. He left behind a handwritten note indicating that he alone was responsible for Doris Angleton’s murder. The state trial of Robert Angleton began in July 1998. During the trial, HPD Detective Sergeants Novak and Ferguson testified and HPD Officer Jewel acted as the liaison between the police department and the Harris County District Attorney’s Office. (Docket Entry No. 64, Ex. 3, at 27). During the trial, state prosecutors introduced at least one piece of evidence obtained by the Federal Bureau of Investigation, a surveillance tape from an unrelated investigation containing Angleton’s voice. On August 12, 1998, the jury acquitted Angleton of the capital murder for hire charge. (Docket Entry No. 38, Ex. 3). Angleton’s acquittal was the first acquittal in a capital murder case tried in Harris County since the death penalty was reinstated in 1976. (Docket Entry No. 64, Ex. 3, at 34). Approximately six months after the acquittal, FBI Special Agent Cynthia Rosen-thal and another FBI agent began investigating Angleton for violations of federal law, including money laundering and RICO violations relating to his gambling and bookmaking activities and income tax evasion. (Id. at 11, 26). This investigation did not include the murder of Doris Angle-ton. State officials cooperated with this federal investigation. (Id. at 26). At some later date, the Harris County District Attorney’s Office asked the United States Attorney’s Office to investigate Angleton for murder for hire under federal law. (Id. at 28). In April 2000, the United States Attorney’s Office asked the FBI to expand its investigation of Robert Angle-ton’s activities to include his role in the murder of his wife. (Id.). An ad hoc, undocumented joint task force of federal and state officials, consisting of Special Agent Cynthia Rosenthal, other FBI agents, HPD Sergeants Novak and Ferguson, and HPD Officer Jewel, was formed. (Id. at 27-28). Sergeants Novak and Ferguson were the primary case agents who originally investigated Doris Angleton’s murder and testified in Angleton’s state trial; officer Jewel was the liaison between the HPD and the state prosecutors. (Id.; Docket Entry No. 38, Ex. 6, Vol. 1, at 5-6). The three HPD members of the joint task force were deputized as United States Deputy Marshals so that they could access FBI files. (Docket Entry No. 64, Ex. 3, at 45-46). The HPD continued to pay their salaries. (Id.). The joint task force received all the information the HPD had gathered for use in the state prosecution. (Id. at 28). The two assistant district attorneys who prosecuted Angleton in the state trial, who are personal friends of FBI Special Agent Rosenthal, also cooperated with and encouraged the federal/state joint task force. (Id. at 35). As part of the investigation, FBI agents interviewed members of the jury that had acquitted Angleton. Angleton’s counsel have been allowed to review and summarize the FBI reports of these interviews. From these summaries, it appears that the questioning focused on how various pieces of evidence and other trial strategies impacted the jurors’ decision to vote not guilty. (Docket Entry No. 64, Ex. 1). The parties agree that the federal prosecution will rely on much of the same evidence as the state prosecution. No federal indictment was returned alleging that Angleton had violated RICO or committed money laundering or income tax evasion, charges that the federal agents had first investigated. In January 2002, a federal grand jury returned a three-count indictment against Angleton, based on the 1997 murder of Doris Angle-ton. Count One of the indictment charges Angleton with conspiring to commit murder for hire, in violation of 18 U.S.C. § 1958. It states: From an unknown date believed to be in January, 1997, in the Southern District and Northern Districts of Texas and the State of California, the defendant, did knowingly and willfully combine, conspire, confederate and agree with Roger Angleton, not indicted herein, to cause another to travel in interstate commerce and use a facility in interstate commerce with intent that the murder of Doris Angleton be committed in violation of the laws of the State of Texas and the United States, as consideration for the receipt of, and as consideration for a promise and agreement to pay, a thing of pecuniary value, that is, United States Currency, such conduct resulting in the death of Doris Angleton. (Docket Entry No. 38, Ex. 1). The indictment then alleges the methods, means, and overt acts of the conspiracy, including that Robert Angleton agreed to pay Roger An-gleton to have Doris Angleton murdered; that Roger Angleton traveled from California to Texas to prepare for the killing; that Roger Angleton shot Doris Angleton in Houston, then left the city; and that the plan included Robert Angleton’s agreement to pay Roger Angleton even if he was captured and Roger Angleton’s agreement to take the full blame and attempt to exonerate his brother if he was captured. Count Two of the indictment charges Robert Angleton with committing murder for hire, in violation of 18 U.S.C. § 1958. Count Two states: From an unknown date, believed to be in January of 1997, and continuing until April 16, 1997, in the Southern District of Texas, the defendant, Robert Nicholas Angleton, aided and abetted by Roger Angleton, not indicted herein, did cause another to travel in interstate commerce and did use a facility of interstate commerce with intent that the murder of Doris Angleton be committed in violation of the laws of the State of Texas and the United States, as consideration for the receipt of, and as consideration for a promise and agreement to pay, a thing of pecuniary value, that is, United States Currency, such conduct resulting in the death of Doris Angleton. (.Id.) Count Three of the indictment charges Angleton with using a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c)(1). Count Three states: On or about April 16, 1997, in the Southern District of Texas, the defendant, Robert Nicholas Angleton, aided and abetted by Roger Angleton, not indicted herein, did knowingly use and carry a firearm during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, as alleged in Counts One and Two of this Indictment. (Id.). Angleton challenges the federal indictment under the Double Jeopardy Clause on several grounds. First, Angleton argues that the nature and extent of the state officials’ involvement in Angleton’s federal indictment and prosecution amounts to collusion between the state and federal governments that triggers the “sham prosecution” exception to the dual sovereignty doctrine. Second, he contends that because the federal murder for hire statute, 18 U.S.C. § 1958, incorporates the Texas capital murder statute, there is no separate federal basis for this prosecution. Angleton relies on the pre-Civil War case of Houston v. Moore, 18 U.S. (5 Wheat.) 1, 5 L.Ed. 19 (1820), for the argument that the incorporation of the state statute into the federal statute bars the successive federal prosecution as derivative of the failed state effort. Third, Angleton argues that collateral estoppel applies to bar this pros-eeution because at least one essential fact as to each count in the federal indictment was necessarily determined in the former trial. Fourth, Angleton argues that to apply 18 U.S.C. § 1958 to make a federal case out of what has historically been a state law crime, that has already been tried in a state court, raises serious constitutional issues of due process, federalism, and the limits on Congress’s power under the Commerce Clause. Angleton argues that this court should avoid these constitutional issues by adopting a narrow interpretation of 18 U.S.C. § 1958 and require a showing of a compelling federal interest in this successive federal prosecution. An-gleton argues that no such interest can be demonstrated. Angleton urges that these grounds require the dismissal of this indictment. At a minimum, Angleton contends that the arguments he raises are colorable and, therefore, not frivolous, permitting him an interlocutory appeal that divests this court of jurisdiction to proceed with his trial until the appeal is decided. The government’s primary response is that under binding Supreme Court and Fifth Circuit case law, the dual sovereignty doctrine applies to permit the federal government, a separate sovereign from the State of Texas, to prosecute Angleton for the separate, federal offense that arose from the use of interstate facilities and travel to commit the murder for hire of his wife. The government asserts that the degree of federal and state cooperation in obtaining this successive indictment is well within the limits of the dual sovereignty doctrine and far less than courts have required to trigger any sham prosecution exception to that doctrine. The government contends that under well-established law, murder for hire is a federal crime when its perpetration involves the use of interstate travel or facilities in interstate commerce, and that this indictment does not strain constitutional limits. Finally, the government argues that the law is so clear that Angleton’s challenges should be deemed frivolous, so that this court retains jurisdiction to proceed with his trial during any interlocutory appeal. In accordance with United States v. Stricklin, 591 F.2d 1112, 1117-18 (5th Cir.1979), this court held a pretrial hearing to provide Angleton an opportunity to present evidence in support of a prima facie case of double jeopardy. (Docket Entry No. 63); see United States v. Patterson, 809 F.2d 244, 247 (5th Cir.1987). Angleton has submitted the federal indictment (Docket Entry No. 38, Ex. 1); the state indictment (Id., Ex. 2); the state jury verdict and judgment (Id., Ex. 3); a copy of Texas Penal Code §§ 19.02-.03 (Id., Ex. 4); the state jury instructions (Id., Ex. 5); the transcript of the state trial (Id., Ex. 6); defense counsel’s summaries of the FBI interviews of the state jurors and alternates (Docket Entry No. 64, Ex. 1); An-gleton’s Request for Pretrial Release (Id., Ex. 2); and the transcript of Angleton’s Arraignment, Detention and Bond Hearing containing the testimony of FBI Special Agent Rosenthal, who was in charge of the joint task force investigation (Id., Ex. 3). Both the government and Angleton presented oral argument and both have filed extensive briefs. Each of Angleton’s arguments, and the government’s response, is addressed below. II. The Law of Double Jeopardy A. Procedural Rules Governing Double Jeopardy Claims The Fifth Circuit has established procedures for district courts to apply in analyzing double jeopardy claims raised before trial. In Stricklin, 591 F.2d 1112, the Fifth Circuit addressed a double jeopardy claim arising from three federal court indictments for drug trafficking conspiracies. The Fifth Circuit held that a defendant bears the burden of establishing a “prima facie nonfrivolous double jeopardy claim.” Id. at 1117-18. Once a defendant has “made a nonfrivolous showing that an indictment charges the same offense as that for which he was formerly placed in jeopardy,” the burden of persuasion shifts to the government to prove by a preponderance of the evidence that two. separate crimes are charged. Id. To make the pri-ma facie showing of double jeopardy, the defendant may refer to the indictments, his own testimony at the pretrial hearing, or by presenting other evidence normally available at the pretrial stage. Id. The government may then respond with sufficient evidence to demonstrate by a preponderance of the evidence that two separate crimes are charged. The procedure for addressing double jeopardy claims “in no way alters the discovery now available to defendants.” Id. at 1118. Stricklin did not involve successive prosecutions by different sovereigns. The only issue in Stricklin was whether the indictments charged the same offense under the standards of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See United States v. Sharpe, 193 F.3d 852, 863 (5th Cir.1999) (citing United States v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). In the Supreme Court’s most recent case on the dual sovereignty doctrine in the context of a double jeopardy claim, Heath v. Alabama, 474 U.S. 82, 87, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985), the Court first analyzed whether the two offenses charged were the “same” for double jeopardy purposes. The Court then turned to determining whether the “two entities that seek successively to prosecute the defendant for the same course of conduct can be termed separate sovereigns.” Id. at 88, 106 S.Ct. 433. Fifth Circuit cases considering double jeopardy claims involving two sovereigns have followed this approach. See United States v. Cooper, 949 F.2d 737, 750-51 (5th Cir.1991); United States v. Moore, 958 F.2d 646, 650 (5th Cir.1992). To establish a prima facie claim of double jeopardy, Angleton must first show that the offenses charged in the state and federal indictments are the “same offense” under the Blockburger test. If the offenses are the “same” for the purpose of double jeopardy, the government must show that the dual sovereignty doctrine applies. Angleton contends that this court should apply the sham prosecution exception to the dual sovereignty doctrine; he must make a prima facie showing that the federal prosecution was a mere tool of the state prosecution. Cooper, 949 F.2d at 750-51; Patterson, 809 F.2d at 247. If he makes such a showing, the burden shifts to the government. The threshold issue is whether the federal indictment charges the same offenses that were the basis of Angleton’s state trial and acquittal. B. The Blockburger Analysis The Fifth Amendment to the United States Constitution commands that no person shall “be subject for the same of-fence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. A subsequent prosecution avoids double jeopardy if the charged offenses are not the same. The government contends that under the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), this federal indictment does not charge the same offense because the offenses alleged in counts one through three do not contain the same elements as the Texas capital murder statute under which Angleton was acquitted. Angleton asserts that, under the Blockburger test, Counts One and Two of the federal indictment are the “same offense” as the capital murder charge contained in the state indictment. In addition, Angleton asserts that Counts One and Two are, as compared to each other, the “same offense” and, thus, he cannot be charged with both conspiracy to commit murder for hire and the commission of murder for hire under 18 U.S.C. § 1958. As for Count Three, Angleton argues that the count fails if double jeopardy bars Counts One and Two because Count Three can proceed only if the alleged underlying crime is an offense for which the defendant “may be prosecuted in a court of the United States.” 18 U.S.C § 924(c)(1)(A). The government does not contest Angleton’s analysis of Count Three. “Under the Blockburger test, each offense must contain an element not contained in the other; if not, they are the same offense within the Clause’s meaning and double jeopardy bars subsequent punishment or prosecution.” Sharpe, 193 F.3d at 863 (citing Dixon, 509 U.S. at 697, 113 S.Ct. 2849); see also Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001) (applying the Blockburger test to determine whether two offenses are the same); United States v. Avants, 278 F.3d 510, 516 (5th Cir.2002) (same). The Blockburger test focuses on the elements of the charged offense rather than the evidence presented at trial. Illinois v. Vitale, 447 U.S. 410, 413-15, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Angleton is charged with both conspiracy to commit murder for hire and committing murder for hire. The elements of commission of murder for hire resulting in death are: 1) travel in or causing another to travel in interstate commerce, or using or causing another to use the mail or any facility in interstate or foreign commerce; with 2) intent that a murder be committed in violation of the laws of Texas; 3) as consideration for a promise or agreement to pay anything of pecuniary value; 4) resulting in a death. The elements of conspiracy to commit murder for hire are identical, with the addition of the element of conspiring with another. (Docket Entry No. 38, Ex. 1). Conspiracy and the substantive offense that is the object of the conspiracy are. separate and distinct crimes. See, e.g., United States v. Hernandez, 141 F.3d 1042 (11th Cir.1998); United States v. Romeros, 600 F.2d 1104, 1105 (5th Cir.1979) (citing Iannelli v. United States, 420 U.S. 770, 777-778, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); United States v. Ragano, 520 F.2d 1191, 1198 (5th Cir.1975)). Charging An-gleton with conspiracy to commit murder for hire and the substantive offense of murder for hire under 18 U.S.C. § 1958 does not violate the Double Jeopardy Clause. Angleton was indicted for, and acquitted of, the offense of capital murder under Texas Penal Code § 19.03(a)(3). Angleton argues that conspiracy to commit murder for hire and the commission of murder for hire under section 1958 are the same offense as capital murder for remuneration under Texas law because there is no additional element in the state offense that is not contained in the two federal offenses separately. The elements of the offense charged in the state indictment are: 1) intentionally or knowingly; 2) causing death; 3) by employing another to commit the murder for remuneration or the promise of remuneration. (Docket Entry No. 38, Ex. 2). Both the state and federal offenses require: 1) intent; 2) death; and 3) commission of the murder for remuneration. The federal offenses each require proof of additional elements—a conspiracy and interstate travel—but the state murder charge does not. The government argues that the state charge of murder for remuneration requires proof that a death occurred, which is not an element under section 1958. However, if, as here, a death occurred, section 1958 provides for an enhanced maximum penalty of life imprisonment or death, which increases the statutory punishment. The fact that a death occurred must be pleaded in the indictment, submitted to the jury, and found beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. -, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). There is no additional element in the state charge against Angle-ton that is not contained in the first two counts of the federal indictment. The offenses charged in Counts One and Two of the indictment are, for Blockburger purposes, the same offense as the Texas capital murder charge for which Angleton was tried and acquitted. See, e.g., United States v. Basile, 109 F.3d 1304, 1306-07 (8th Cir.), cert. denied, 522 U.S. 873, 118 S.Ct. 189, 139 L.Ed.2d 128, cert. denied sub mom., DeCaro v. United States, 522 U.S. 866, 118 S.Ct. 173, 139 L.Ed.2d 115 (1997) (assuming that federal murder for hire indictment charged same offense as state murder charges arising from same conduct and applying dual sovereignty doctrine). If the dual sovereignty doctrine applies, double jeopardy does not prevent the federal government from prosecuting Angle-ton for the same offense. See Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. McKinney, 53 F.3d 664, 676 (5th Cir.1995). Angleton argues that the dual sovereignty doctrine does not apply based on exceptions to the doctrine recognized in Bartkus v. Illinois, 359 U.S. 121, 123, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Houston v. Moore, 18 U.S. (5 Wheat.) 1, 5 L.Ed. 19 (1820). Alternatively, he urges that the underpinnings of the doctrine have been so eroded that it should be reexamined and its application to these facts rejected. C. The Dual Sovereignty Doctrine Even if two offenses contain the same elements, “successive prosecutions by separate sovereigns for crimes arising out of the same acts are not barred” by double jeopardy. United States v. Johnson, 91 F.3d 695, 697 (5th Cir.1996) (applying dual sovereignty doctrine to allegations of prosecutorial vindictiveness). The dual sovereignty doctrine rests on the notion that a defendant whose conduct violates the laws of two sovereigns has “committed two different offenses by the same act, and [thus] a conviction by a court [of one sovereign] of the offense against that [sovereign] is not a conviction of the different offense against the [other sovereign] and so is not double jeopardy.” United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922). The United States Supreme Court first used the dual sovereignty concept in Lan-za to uphold a federal prosecution after a state prosecution for the same offense. However, the Court had discussed the doctrine in two pre-Civil War cases, Fox v. Ohio, 46 U.S (5 How.) 410, 12 L.Ed. 213 (1847), and Moore v. Illinois, 55 U.S (14 How.) 13, 14 L.Ed. 306 (1852). In Fox, the Court considered a challenge to the constitutionality of a state statute criminalizing the use of counterfeit United States currency. The defendant argued that the state statute was unconstitutional because only Congress had jurisdiction to criminalize the conduct in question. In support of this argument, the defendant contended that allowing a state to criminalize the use of counterfeit United States currency could result in a violation of the Fifth Amendment because a state and the federal government might punish an individual for the same illegal act. The Court rejected this concern, noting that under Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833), the Bill of Rights, including the Fifth Amendment, was a restriction only on the federal government, not on the power of the state governments. Id. 46 U.S. at 434. Responding to the argument that successive punishment could be imposed for the same conduct, the Court stated: It is almost certain, that, in the benignant spirit in which the institutions both of the State and Federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other for acts essentially the same, unless indeed this might occur in instances of peculiar enormity, or where the public safety demanded extraordinary rigor. Id. at 435. Justice McLean dissented, arguing that the majoiity’s result established a great defect in our system. For the punishment under the State law would be no bar to a prosecution under the law of Congress. And to punish the same act by the two governments would violate, not only the common principles of humanity, but would be repugnant to the nature of both governments. If there were a concurrent power in both governments to punish the same act, a conviction under the laws of either could be pleaded in bar to a prosecution by the other. But it is not pretended that the conviction of Malinda Fox, under the State law, is a bar to a prosecution under the law of Congress. Each government, in prescribing the punishment, was governed by the nature of the offense, and must be supposed to have acted in reference to its own sovereignty. There is no principle better established by the common law, none more fully recognized in the federal and State constitutions, than that an individual shall not be put in jeopardy twice for the same offense. This, it is true, applies to the respective governments; but its spirit applies with equal force against a double punishment, for the same act, by a State and a federal government. Id. at 439. In Moore v. Illinois, 55 U.S. at 17, the Court considered the constitutionality of an Illinois statute criminalizing “harboring or secreting a negro slave.” Id. The defendant argued that the statute was unconstitutional because it conflicted with the constitutional provision and act of Congress on the same subject. The defendant also argued that the Illinois statute was void because it could subject “the delinquent to a double punishment for a single offense.” Id. at 19. The Court rejected this argument, stating the now classic expression of the dual sovereignty doctrine: Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both.... That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offenses; but only by one act he has committed two offenses, for each of which he is justly punishable. Id. at 20. Justice McLean again dissented, arguing that the federal statute should be held to preempt state statutes criminalizing the same conduct in order to avoid a result so “contrary to the nature and genius of our government” as “to punish an individual twice for the same offense.” Id. at 21-22. In Lanza, decided in 1922, the Court upheld a federal prosecution after the state had convicted the defendant for the same offense. 260 U.S. 377, 43 S.Ct. 141. The federal government indicted the defendant under the National Prohibition Act, 41 Stat. 305 (1921), legislation Congress enacted in 1919 to enforce the Eighteenth Amendment. The defendant had previously been convicted for violating a state law that proscribed the manufacture, transport, or possession of liquor. The district court dismissed the federal indictment. The argument before the Supreme Court centered on the provision of the Eighteenth Amendment to the United States Constitution that gave state and federal governments concurrent power to enforce prohibition. U.S. Const, amend. 18, § 2. The defendant argued that both the state law under which he had been convicted and the federal statute under which he was subsequently indicted derived from the same source, the second section of the Eighteenth Amendment, making a prosecution by the state “in principle” a prosecution by the United States in its courts. Id. at 379-80, 43 S.Ct. 141. The Supreme Court rejected the argument, holding that the Double Jeopardy Clause did not bar the federal government from prosecuting an individual for the same offense for which he had been tried previously in a state court. The Court’s language was broad: Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sover-eignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government ... and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority. Here the same act was an offense against the state of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that state is not a conviction of the different offense against the United States, and so is not double jeopardy. Id. at 382, 43 S.Ct. 141. The Court did not limit its language to cases arising under the Eighteenth Amendment, which established an area of concurrent state and national power. Instead, the Court endorsed in broad terms the dual sovereignty doctrine that had been articulated in Fox v. Ohio and Moore v. Illinois, describing these cases as a “long line of decisions” supporting a view of the Fifth Amendment that permitted successive prosecutions for the same conduct. The Court explained why it believed its decision to be sound: If a state were to punish the manufacture, transportation and sale of intoxicating liquor by small or nominal fines, the race of offenders to the courts of that state to plead guilty and secure immunity from federal prosecution for such acts would not make for respect for the federal statute or for its deterrent effect. Id. 43 S.Ct. at 143. In 1959, the Supreme Court decided Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), holding that the Fourteenth Amendment did not bar a state from prosecuting the defendant after the federal government had already tried him for the same offense. On the same day, the Court decided Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), holding that the Fifth Amendment did not bar the federal government from prosecuting two individuals for the same offense for which they had previously been tried in state court. Both decisions issued on a vote of five to four. Both cases rested in part on the fact that the Double Jeopardy Clause was considered inapplicable to the states, Bartkus, 359 U.S. at 123-39, 79 S.Ct. 676; Abbate, 359 U.S. at 198-96, 79 S.Ct. 666, a position changed when the Court decided Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In both cases, Justice Black dissented, vigorously arguing “that a federal trial following a state acquittal or conviction is barred by the Double Jeopardy Clause of the Fifth Amendment” and that a state conviction following a federal prosecution “cannot stand. For I think double prosecutions for the same offense are so contrary to the spirit of our free country that they violate even the prevailing view of the Fourteenth Amendment....” Bartkus, at 150-51, 79 S.Ct. 676. In Bartkus, the defendant was indicted, tried, and acquitted in federal court on charges that he had robbed a federally insured savings and loan association located in Illinois. Three weeks later, an Illinois state grand jury indicted the defendant for the same acts, charging him with violating a state robbery statute. The Supreme Court affirmed the second, state prosecution under the Due Process Clause of the Fourteenth Amendment, relying on the inapplicability of the Double Jeopardy Clause to the states and on what the majority described as a “long, unbroken, unquestioned course of impressive adjudication” before and since Lanza permitting a “second prosecution where the first was by a different government and for violation of a different statute.” 359 U.S. at 135, 79 S.Ct. 676. The majority echoed the themes sounded in Lanza: the theoretical basis of the doctrine of dual sovereignty, that the same conduct may violate the law of separate sovereigns and be subject to separate punishment, and the practical concern that if a successive prosecution was barred in all cases a defendant would seek immunization from significant punishment by manipulating the system to ensure that the first prosecution was in the jurisdiction that imposed a much less severe sanction. In the context of a successive state prosecution, such a result would “be in derogation of our federal system” because it would allow the “federal prosecution of a comparatively minor offense to prevent state prosecution of [a] grave ... infraction of state law.” Id. at 137, 79 S.Ct. 676. In his dissent, Justice Black criticized the majority’s characterization of the precedents, noting that “[djespite its exhaustive research, the Court has cited only three cases before Lanza where a new trial after an acquittal was upheld.” Id. at 161, 79 S.Ct. 676. Only one of these cases, a 1915 decision from the State of Washington, clearly allowed a reprosecution and conviction following an acquittal for the same offense. Id. (citing State v. Kenney, 83 Wash. 441, 145 P. 450 (1915)). As to the cases decided after Lanza, the majority cited one state case decided in 1943 and four federal cases decided in the 1950s, allowing successive prosecutions. Id. at 163 n. 33, 79 S.Ct. 676. It is on this “meager basis,” as contrasted with historical opposition to the practice of double prosecutions, that the Court rested its finding that Bartkus’s retrial did not violate the “fundamental principles ‘rooted in the traditions and conscience of our peoples.’ ” Id. at 162, 79 S.Ct. 676. Justice Black made his own point as to the practical impact of the dual sovereignty doctrine: The Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp. If double punishment is what is feared, it hurts no less for two “Sovereigns” to inflict it than for one. If danger to the innocent is emphasized, that danger is surely no less when the power of State and Federal Governments is brought to bear on one man in two trials, then when one of these “Sovereigns” proceeds alone. In each case, inescapably, a man is forced to face danger twice for the same conduct. Id. at 155, 79 S.Ct. 676. Justice Black rejected the argument that effective law enforcement required the opportunity for “double prosecutions” by the states and federal government. If Congress believed that the states were subverting federal laws by imposing inadequate penalties, Congress could preempt the states’ involvement or set minimum penalties to protect federal interests. Id. at 157, 79 S.Ct. 676. In Abbate, the defendants pleaded guilty to violating an Illinois statute criminalizing conspiracy to injure or destroy the property of another. 359 U.S. at 187, 79 S.Ct. 666. The pleas arose from an aborted plan to dynamite communications facilities during a union strike against the communications company. Defendants received three month state prison terms. Early the next year, a federal grand jury indicted defendants for conspiracy to injure or destroy a means of communication operated or controlled by the United States, based on the fact that the targeted facilities carried cables used by federal agencies. Id. at 188-89, 79 S.Ct. 666. Because this case involved a successive federal prosecution, the Court confronted the Fifth Amendment Double Jeopardy Clause. The Court briefly reviewed the dual sovereignty doctrine jurisprudence, concluding that Lanza had been correctly decided. The Court again emphasized the practical concern that overruling Lanza would hinder federal law enforcement unless the federal government displaced state power to prosecute crimes based on acts that also violated federal law. “This would bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes.” Id. at 195, 79 S.Ct. 666. Justice Black again dissented, noting that Lanza itself relied on dicta in Fox v. Ohio and Moore v. Illinois. Justice Black remained unconvinced “that a State and the Nation can be considered two wholly separate sovereign-ties for the purpose of allowing them to do together what, generally, neither of them can do separately.” Id. at 203, 79 S.Ct. 666. In response to Bartkus, the Department of Justice implemented the so-called Petite policy, first recognized by the courts in Petite v. United States, 361 U.S. 529, 531, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960) (per curiam). The policy “precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same acts or transactions” unless the prior prosecution has left a “substantial interest ... demonstrably unvindicated.” 3 Dept. Op JustiCe Manual tit. 9-2.031(A) (2d ed.2002-1 Supp.). The Supreme Court’s most recent case applying the dual sovereignty doctrine in the context of double jeopardy is Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). In that case, the defendant hired two individuals to murder his wife. Id. at 83-84, 106 S.Ct. 433. The wife was kidnaped from their residence in Alabama. Her body was later found in an abandoned car in Georgia. Georgia and Alabama conducted dual investigations into the kidnaping and murder, with some cooperation. A Georgia grand jury indicted Heath for “malice” murder under Georgia law. Heath pleaded guilty to the murder in exchange for a life sentence. Id. at 84, 106 S.Ct. 433. A few months later, a grand jury in Alabama indicted Heath for the capital offense of murder during a kidnaping. Heath was convicted and sentenced to death. Heath argued that his Georgia conviction barred the subsequent Alabama conviction for charges based on the same conduct. The issue was whether the dual sovereignty doctrine permitted a second state to prosecute for the same offense when double jeopardy would have prevented the first state from doing so. Id. at 88, 106 S.Ct. 433. The Court concluded that because the states are presumptively separate sovereigns, Heath’s prosecution by each in succession did not constitute double jeopardy. Id. at 89-93, 106 S.Ct. 433. Heath, decided in 1985, applied the dual sovereignty doctrine to successive prosecutions by two states. The Supreme Court has not considered a ease involving successive state and federal prosecutions for the same offense since deciding Bartkus and Abbate in 1959. Angleton urges that specific developments justify a reexamination of the dual sovereignty doctrine. After Lanza, Bartkus, and Abbate were decided, the Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment is applicable to the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). However, the Court has not examined the impact of this holding on the dual sovereignty doctrine articulated in the earlier cases. The Court’s silence is in contrast to its approach to the dual sovereignty doctrine in cases decided under the Fourth Amendment and the Self-Incrimination Clause of the Fifth Amendment after they were held to apply to the states. In Elkins v. United States, 364 U.S. 206, 215, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), decided after the Court recognized that the Fourth Amendment applied to the states, the Court discarded the “silver platter doctrine,” under which evidence obtained by state officials through unreasonable searches or seizures could be introduced as evidence in a federal criminal trial. In support of its holding, the Court echoed Justice Black’s dissents in Bartkus and Abbate: “To the victim it matters not whether his constitutional right has been invaded by a federal agent or by a state officer.” Id. at 215, 80 S.Ct. 1437. Justice Harlan dissented, arguing that the Court’s decision abandoned “sound constitutional doctrine under our federal scheme of things, doctrine which only as recently as last Term was reiterated by this Court. See Abbate v. United States ... Bartkus v. Illinois ....’’Id. at 252, 80 S.Ct. 1437. In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 77-78, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), decided after the recognition that the Self-Incrimination Clause applied to the states, the Court overruled previous decisions under which a state or the federal government could compel a witness to give testimony which might incriminate the witness in the other sovereign’s courts. In overruling this precedent, the Court discarded the ‘“separate sovereignty’ theory of self-incrimination.” Id. at 89, 84 S.Ct. 1594 (Harlan, J., concurring). The Court reasoned that the policies behind the privilege would be frustrated by the dual sovereignty doctrine, which allowed a defendant to be “ ‘whipsawed into incriminating himself under both state and federal law even though’ the constitutional privilege against self-incrimination applied to each.” Id. at 55, 84 S.Ct. 1594 (quoting Knapp v. Schweitzer, 357 U.S. 371, 385, 78 S.Ct. 1302, 2 L.Ed.2d 1393 (1958) (Black, J., dissenting)). This problem, the Court noted, was especially significant “in our age of ‘cooperative federalism,’ where the Federal and State Governments are waging a united front against many types of criminal activity.” Id. By contrast, despite the decision in Benton v. Maryland, applying 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 reexamined. The increase in the scope of federal criminal law, a “dramatic change[] that ha[s] occurred in the relationship between the federal government and the states since the time of Bartkus and Abbate,” has greatly expanded the likelihood of successive prosecutions. The successive prosecutions permitted under the dual sovereignty doctrine in Bartkus, Abbate, and Heath stand in tension with the Court’s recognition in cases such as Green v. United States, that a government may not repeatedly prosecute an individual, “thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety, insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The expansion of federal criminal law into many areas also subject to state criminal statutes increases this tension. Despite such developments and criticism of the dual sovereignty doctrine, the circuit courts have continued to reaffirm and apply Bartkus, Abbate, and Heath to uphold successive prosecutions by state and federal governments, as well as by the federal government and foreign governments. See McKinney, 53 F.3d at 676, cert. denied, 516 U.S. 970, 116 S.Ct. 431, 133 L.Ed.2d 346 (1995) (federal prosecution not barred by prior state guilty plea); United States v. Guzman, 85 F.3d 823, 826 (1st Cir.), cert. denied, 519 U.S. 1020, 117 S.Ct. 537, 136 L.Ed.2d 422 (1996) (federal prosecution not barred by prior foreign conviction); United States v. Sewell, 252 F.3d 647 (2d Cir.2001) (federal prosecution not barred by prior state acquittal); United States v. Bell, 113 F.3d 1345, 1351 n. 6 (3rd Cir.), cert. denied, 522 U.S. 984, 118 S.Ct. 447, 139 L.Ed.2d 383 (1997) (federal prosecution not barred by prior state acquittal); United States v. Montgomery, 262 F.3d 233, 238 (4th Cir.), cert. denied, — U.S. —, 122 S.Ct. 845, 151 L.Ed.2d 723 (2001) (federal prosecution not barred by prior state guilty plea); United States v. Holmes, 111 F.3d 463, 467 (6th Cir.1997) (federal prosecution not barred by prior state civil judgment of punitive damages); United States v. Ray, 238 F.3d 828, 835 (7th Cir.), cert. denied, 532 U.S. 1045, 121 S.Ct. 2014, 149 L.Ed.2d 1015 (2001) (federal prosecution not barred by prior state conviction); United States v. Johnson, 169 F.3d 1092, 1095-96 (8th Cir.), cert. denied, 528 U.S. 857, 120 S.Ct. 143, 145 L.Ed.2d 121 (1999) (same); United States v. Male Juvenile, 280 F.3d 1008, 1021 (9th Cir.2002) (federal prosecution not barred by prior tribal court prosecution); United States v. Trammell, 133 F.3d 1343, 1349-50 (10th Cir.1998) (federal prosecution not barred by prior state acquittal); United States v. Baptista-Rodriguez, 17 F.3d 1354, 1360-62 (11th Cir.1994) (federal prosecution not barred by failed foreign prosecution); United States v. Rashed, 234 F.3d 1280 (D.C.Cir.), cert. denied, 533 U.S. 924, 121 S.Ct. 2539, 150 L.Ed.2d 708 (2001) (federal prosecution not barred by foreign conviction). Angleton acknowledges that the dual sovereignty doctrine is established law, binding on this court, although he urges its reexamination. Angleton also argues that the doctrine’s exceptions and limits preclude its application to this case. III. The Limits of the Dual Sovereignty Doctrine A. The Bartkus “Sham Prosecution” Exception 1. The Applicable Legal Standards In Bartkus v. Rlinois, the Court suggested, in dicta, that despite extensive participation by federal authorities in the successive state trial, the defendant could not reasonably claim that the state “was merely a tool of the federal authorities” or that the “state prosecution was a sham and a cover for a federal prosecution.” 359 U.S. at 123, 79 S.Ct. 676. In dissent, four justices agreed with the majority’s suggestion that the first sovereign to prosecute a defendant could be so heavily involved in a second prosecution as to vitiate the dual sovereignty doctrine and bar the second prosecution under double jeopardy. An-gleton urges that this Bartkus “sham prosecution” exception to the dual sovereignty doctrine applies here because of the extensive involvement of the Houston Police Department and other state officials in this federal prosecution. The government responds by pointing out that if the Bartkus exception exists at all, it applies only in extraordinary circumstances that are not present here. The facts of Bartkus itself demonstrate that there can be extensive involvement by the first sovereign in a second sovereign’s prosecution without vitiating the application of the dual sovereignty doctrine. In Bartkus, the dissent described the extent of the federal authorities’ involvement in the state prosecution that followed Bart-kus’s federal court acquittal. The federal authorities “solicited the state indictment, arranged to assure the attendance of state witnesses, unearthed additional evidence to discredit Bartkus and one of his alibi witnesses, and in general prepared and guided the state prosecution.” 359 U.S. at 164-65, 79 S.Ct. 676. The FBI agents who conducted the federal investigation turned over all the evidence they had gathered to the state prosecutors. The “ ‘federal officers did instigate and guide this state prosecution’ and ‘actually prepared this case.’ ” Id. at 165, 79 S.Ct. 676 (quoting statements of Illinois’s counsel at oral argument). The federal sentencing of one of the witnesses in the state case was postponed until after he testified against Bart-kus at the state trial. Id. at 123, 79 S.Ct. 676. Despite the role of the federal authorities in instigating the successive state indictment and the extensive involvement of the federal authorities in the prosecution itself, the Supreme Court held that the record did “not sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution.” Id. at 123-24, 79 S.Ct. 676. Since Bartkus, courts have considered a number of challenges to subsequent prosecutions based on the Bartkus sham prosecution exception to the dual sovereignty doctrine. The Fifth Circuit has considered seven such challenges. In one case, the Fifth Circuit expressed skepticism as to whether the sham prosecution exception in fact existed, or could be applied. Patterson, 809 F.2d at 247 n. 2 (“It is unclear whether such a holding has been established by the Supreme Court.”); see also United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir.), cert. denied, 510 U.S. 999, 114 S.Ct. 569, 126 L.Ed.2d 468 (1993); United States v. Tirrell, 120 F.3d 670, 677 (7th Cir.1997). However, other Fifth Circuit cases assume that the exception exists. See Moore, 958 F.2d at 650; Logan, 949 F.2d at 1380 n. 16. Other circuit courts have recognized the sham prosecution exception more readily than the Fifth Circuit. See United States v. Guzman, 85 F.3d 823, 826 (1st Cir.1996) (“We find the gravitational pull of Bartkus irresistible. Indeed, we think that the exception is compelled by the bedrock principle of dual sovereignty.”); United States v. Certain Real Property and Premises Known as 38 Whalers Cove Dr., 954 F.2d 29, 38 (2d Cir.1992); In re Kunstler, 914 F.2d 505, 517 (4th Cir.1990); United States v. Moore, 822 F.2d 35, 38 (8th Cir.1987); United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir.1987); United States v. Guy, 903 F.2d 1240, 1242 (9th Cir.1990); United States v. Liddy, 542 F.2d 76, 79 (D.C.Cir.1976). The Supreme Court recently cited Bart-kus in discussing whether “cooperative conduct” between the United States and foreign governments could support a claim that fear of foreign prosecution triggered the Fifth Amendment privilege against self-incrimination. In United States v. Balsys, 524 U.S. 666, 698-99, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998), the Court held that concern with foreign prosecution was beyond the scope of the Incrimination Clause of the Fifth Amendment. However, the Court stated, in dicta, that it was not foreclosing the argument that “cooperative conduct between the United States and foreign nations could [] develop to a point at which a claim could be made for recognizing fear of foreign prosecution under the Self-Incrimination Clause.” Id. at 698, 118 S.Ct. 2218. Such an argument, if it could be made, would require a defendant to show that both the United States and the foreign government had “enacted substantially similar criminal codes aimed at prosecuting offenses of international character” and that the “United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries-” Id. at 699, 118 S.Ct. 2218. If these circumstances were demonstrated, a defendant could argue that the Fifth Amendment “should apply simply because that prosecution was not fairly characterized as distinctly ‘foreign.’ ” Id. The Court noted the possibility that such a claim could be made if “cooperative conduct” between the United States and a foreign nation rose to the level that “the prosecution was as much on behalf of the United States as of the prosecuting nation, so that the division of labor between evidence gatherer and prosecutor made one nation the agent of the other, rendering fear of foreign prosecution tantamount to fear of a criminal case brought by the Government itself.” Id. at 699-700, 118 S.Ct. 2218. The Court expressly stated that it was not deciding “whether such an argument should be sustained.” Id. The Court cited Bartkus for the proposition that a “the mere support of one nation for the prose-cutorial efforts of another does not transform the prosecution of the one into the prosecution of the other.” Id. 79 S.Ct. at 700 (citing Bartkus, 359 U.S. at 122-24, 79 S.Ct. 676). The Supreme Court in Bartkus, and all circuit courts to consider Bartkus sham prosecution claims, have held that even significant cooperation between the two sovereigns does not provide a basis for applying the Bartkus exception. See, e.g., United States v. Rashed, 234 F.3d 1280, 1284 (D.C.Cir.), cert. denied, 533 U.S. 924, 121 S.Ct. 2539, 150 L.Ed.2d 708 (2001); United States v. Johnson, 169 F.3d 1092, 1096 (8th Cir.), cert. denied, 528 U.S. 857, 120 S.Ct. 143, 145 L.Ed.2d 121 (1999); United States v. Tirrell, 120 F.3d 670, 677 (7th Cir.1997); United States v. Certain Real Property and Premises Known as 38 Whalers Cove, 954 F.2d 29, 38 (2d Cir.), cert. denied, 506 U.S. 815, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992); United States v. Davis, 906 F.2d 829, 832-34 (2d Cir.1990); United States v. Russotti, 717 F.2d 27, 31 (2d Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984); see also United States v. Moore, 822 F.2d 35, 38 (8th Cir.1987); United States v. Aleman, 609 F.2d 298, 309 (7th Cir.1979). Every circuit to consider the issue has held that the cross-designation of a state law enforcement agent or district attorney as a federal official to assist or even to conduct a federal prosecution does not bring a case within the Bartkus exception to the dual sovereignty doctrine. See United States v. Berry, 164 F.3d 844, 845 (3d Cir.), cert. denied, 526 U.S. 1138, 119 S.Ct. 1794, 143 L.Ed.2d 1021 (1999); United States v. Trammell, 133 F.3d 1343, 1350 (10th Cir.1998); United States v. Figueroar-Soto, 938 F.2d 1015, 1019 (9th Cir.1991), cert. denied, 502 U.S. 1098, 112 S.Ct. 1181, 117 L.Ed.2d 424 (1992); United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991); United States v. Safari, 849 F.2d 891, 893 (4th Cir.), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988); see also United States v. Perchitti, 955 F.2d 674, 677 (11th Cir.1992). The courts have held that one sovereign’s request that another instigate a subsequent prosecution does not trigger the Bartkus exception. See, e.g., Bartkus, 359 U.S. at 123-24, 79 S.Ct. 676; Harrison, 918 F.2d at 472; Tirrell, 120 F.3d at 677; Rashed, 234 F.3d at 1283-84. The courts have straggled to articulate when cooperation between successively prosecuting governments does rise to a level that makes the Bartkus exception apply. A number of courts have suggested that the exception applies only when one sovereign has essentially manipulated another sovereign into prosecuting. See Whalers Cove, 954 F.2d at 38 (suggesting that one sovereign “must have effectively manipulated the actions of the [other sovereign] so that [its] officials retained little or no independent volition.”); Guzman, 85 F.3d at 827 (exception limited to situations in which one sovereign “thoroughly dominates or manipulates the prosecutorial machinery of another”); accord Rashed, 234 F.3d at 1283; Baptista-Rodriguez, 17 F.3d at 1361; Kunstler, 914 F.2d at 517; Biddy, 542 F.2d at 79. These standards are applied to the facts disclosed by the present record. 2. Analysis The Fifth Circuit has established a procedure to follow when a defendant invokes the sham prosecution exception. In the most recent Fifth Circuit case on the issue, the court explained: When a defendant claims collusion between federal and state law enforcement officials, the defendant has the burden of producing evidence to show a 'prima fa-cie, double jeopardy claim. Once a pri-ma facie case is shown, the burden of persuasion shifts to the government. McKinney, 53 F.3d at 676 (citing Cooper, 949 F.2d at 750-51); see Stricklin, 591 F.2d at 1117-18 (developing procedure for double jeopardy claims); Patterson, 809 F.2d at 247-48 (applying Stricklin procedure to claims of collusion under Bartkus); Harrison, 918 F.2d at 474-75 (same); see also United States v. Doyle, 121 F.3d 1078, 1089 (7th Cir.1997); Guzman, 85 F.3d at 830; United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989) (all applying a similar procedure for double jeopardy claims). This court held a hearing under this procedure. The facts on which Angleton relies include the following: • The federal government showed no interest in investigating Angleton on any federal charges until after Angleton’s state acquittal, when state officials cooperated with the federal investigation into suspected money laundering, RICO, and income tax evasion. • The United States Attorney’s Office did not investigate Aigleton for suspected federal murder for hire until after the Harris County District Attorney’s Office requested it to do so. • The FBI did not investigate Angleton for the murder of Doris Angleton until after state authorities had asked the United States Attorney’s Office to extend the investi