first and third counts of the Greek indictment, but his sentence
was reduced to 15 years. Decision 664/1993, Minutes and Decision,
Athens Court of Appeals, July 5, 1993. The Greek Supreme Court
affirmed the sentence and conviction. Decision 362/1995, Greek
Supreme Court, January 31, 1995.
After having been in custody for eight years, Rashed was
released from prison by Greek authorities in early December 1996.
In his travels away from Greece, Rashed was taken into custody.
He was subsequently arrested by the FBI and taken into United
States custody, where he remains to date.
II. Double Jeopardy
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. . . ." U.S. CONST. AMEND.
V. Thus, the Clause may be invoked to bar a second prosecution by
the same sovereign following an acquittal or a conviction. Heath
v. Alabama, 474 U.S. 82, 93, 106 S.Ct. 433, 88 L.Ed.2d 387
(1985); Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct.
666, 3 L.Ed.2d 729 (1959). This protection, however, does not
extend to sequential prosecutions by separate sovereigns for the
same offense. Heath, 474 U.S. at 92, 106 S.Ct. 433; United
States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 55 L.Ed.2d
303; United States v. Rezaq, 134 F.3d 1121, 1128 (D.C.Cir.
1998). Rather, "when a defendant in a single act violates the
`peace and dignity' of two sovereigns by breaking the laws of
each, he was committed two distinct `offenses'" for purposes of
double jeopardy. Heath, 474 U.S. at 88, 106 S.Ct. 433 (citing
United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67
L.Ed. 314 (1922)).
A. The Dual Sovereignty Doctrine
The dual sovereignty doctrine emerged from "the common law
conception of crime as an offense against the sovereignty of the
government." Heath, 474 U.S. at 88, 106 S.Ct. 433. As such,
when an individual by a single act violates the laws of two
sovereigns, he has "committed two offenses, for each of which he
is justly punishable." Id. To a large extent, the doctrine
developed to accommodate the demands of concurrent state-federal
jurisdiction in our unique system of federalism. Id. at 92, 106
S.Ct. 433 ("It is axiomatic that `in America, the powers of
sovereignty are divided between the government of the Union, and
those of the States.'") (citing McCulloch v. Maryland,
17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819)); see also Lanza, 260
U.S. at 381-82, 43 S.Ct. 141 (holding that state court
prosecution did not bar subsequent federal charges under National
Prohibition Act). Essentially, it was feared that "[p]rosecution
by one sovereign for a relatively minor offense might bar
prosecution by the other for a much graver one, thus effectively
depriving the latter of the right to enforce its own laws."
Wheeler, 435 U.S. at 316, 98 S.Ct. 1079. Today, as the scope of
criminal enterprises becomes increasingly global, this rationale
has renewed force. See, e.g. Richardson, 580 F.2d at 947
(noting glaring disparity in penalties for drug offenses between
the United States and Guatemala).
Evaluation of double jeopardy claims in the context of separate
sovereigns "turns on whether the two entities draw their
authority from distinct sources of power." Heath, 474 U.S. at
88, 106 S.Ct. 433. That is, courts assessing the merits of double
jeopardy claims must examine "the ultimate source of the power
under which the respective prosecutions [are] undertaken."
Wheeler, 435 U.S. at 318, 98 S.Ct. 1079 (stating that Navajo
tribe acts as an independent sovereign in criminally punishing a
tribal offender). Where the power to prosecute derives from
distinct sources, the dual sovereignty doctrine permits each
sovereign to vindicate its interests and enforce its own laws.
Id. at 320, 98 S.Ct. 1079 (citing United
States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314
(1922)). Accordingly, under the dual sovereignty doctrine,
sequential state and federal prosecutions for the same offense
are not barred by double jeopardy. Heath, 474 U.S. at 88, 106
S.Ct. 433 (stating that "the Court has uniformly hold that the
States are separate sovereigns with respect to the Federal
Government because each State's power to prosecute is derived
from its own `inherent sovereignty,' not from the Federal
government"). Similarly, the Supreme Court has found that a
federal prosecution of a Navajo tribe member was not barred by a
previous tribal prosecution. United States v. Wheeler,
435 U.S. 313, 318, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). While the Supreme
Court has yet to address squarely whether the dual sovereignty
doctrine also applies to sequential foreign and federal
prosecutions, those courts of appeals addressing the issue have
determined that the doctrine applies. United States v. Guzman,
85 F.3d 823, 826 (1st Cir. 1996) (trial in Netherlands Antilles
did not bar U.S. prosecution); United States v.
Baptista-Rodriguez, 17 F.3d 1354, 1362 (11th Cir. 1994)
(Bahamian prosecution did not bar U.S. action); Chua Han Mow v.
United States, 730 F.2d 1308, 1313 (9th Cir. 1984) (holding that
Malaysian conviction was no bar to federal prosecution); United
States v. McRary, 616 F.2d 181, 184 (5th Cir. 1980) (holding
that Cuban prosecution did not bar subsequent U.S. prosecution);
United States v. Richardson, 580 F.2d 946, 947 (9th Cir. 1978)
(Guatemalan proceedings no bar to U.S. charges); United States
v. Martin, 574 F.2d 1359, 1360 (5th Cir. 1978) (stating that
"[t]he Constitution of the United States has not adopted the
doctrine of international double jeopardy" and holding that U.S.
prosecution not barred by Bahamian trial).
B. The "Sham Prosecution" Exception
Wisely, defendant Rashed does not challenge what is
uncontrovertible — that the United States and Greece are separate
sovereigns. Cf. United States v. Rezaq, 134 F.3d 1121, 1128
(D.C.Cir. 1998) (holding that prior trial in Malta did not bar
sequential United States prosecution); see also Richardson 580
F.2d at 947 (holding that prior Guatemalan prosecution did not
bar U.S. action and stating that "prosecution by a foreign
sovereign does not preclude the United States from bringing
criminal charges"). Rather, acknowledging that he is unable to
take advantage of the Clause's standard protection, defendant
endeavors to fit his case into a narrow exception to the dual
sovereignty doctrine — the so-called "sham prosecution"
exception. Bartkus v. Illinois, 359 U.S. 121, 122, 79 S.Ct.
676, 3 L.Ed.2d 684 (1959). In Bartkus, the Supreme Court
affirmed a defendant's subsequent state conviction on robbery
charges following his acquittal on the same charges in a federal
prosecution. Noting that the prosecutions were separately
conducted and that federal authorities had simply cooperated with
state prosecutors, the Supreme Court determined that the record
in Bartkus contained a support for defendant's claim that the
state was acting "merely as a tool of the federal authorities" or
that the state prosecution was "a sham and a cover for a federal
prosecution." Id. at 124, 79 S.Ct. 676.
Courts addressing these sham prosecution claims have
consistently noted that the exception is extremely narrow and
thus, it imposes a substantial burden on defendants. See, e.g.,
Guzman 85 F.3d at 826 (noting that "under very limited
circumstances, successive prosecutions by separate sovereigns
might transgress the Double Jeopardy Clause"); United States v.
Aboumoussallem, 726 F.2d 906, 910 (2d Cir. 1984) (describing
exception as narrow); United States v. Gonzalez, 907 F. Supp. 785,
789 (D.Del. 1995) (noting that the facts of Bartkus "serve
to illustrate the narrow exception"). Indeed, some courts have
questioned whether such an exception exists at all. See, e.g.,
Baptista-Rodriguez, 17 F.3d at 1360 (questioning whether
is valid); United States v. Brocksmith, 991 F.2d 1363, 1366
(7th Cir. 1993) ("We have questioned whether Bartkus truly
meant to create such an exception, and we have uniformly rejected
such claims."); United States v. Raymer, 941 F.2d 1031, 1037
(10th Cir. 1991) (stating that "a possible exception might
exist"); United States v. Harrison, 918 F.2d 469, 474 (5th Cir.
1990) (noting that in Bartkus, the Supreme Court "did not
define a clear exception in that case"); United States v.
Johnson, 973 F. Supp. 1102, 1104 (D.Neb. 1997) (stating that
Supreme Court alluded to potential exception in Bartkus).
Significantly, none of the courts of appeals addressing sham
prosecution claims in the context of successive foreign and
federal prosecutions has ever found the sham prosecution
exception to be applicable. Guzman, 85 F.3d at 826;
Baptista-Rodriguez, 17 F.3d at 1360; Chua Han Mow, 730 F.2d
at 1313; McRary, 616 F.2d at 184; Richardson, 580 F.2d at
947; Martin, 574 F.2d at 1360.
While the D.C. Circuit has not specifically addressed the
validity of the "sham prosecution" exception in the context of
sequential foreign and federal prosecutions, it has addressed the
exception in the federal-state context. In United States v.
Liddy, the D.C. Circuit interpreted Bartkus to "stand for
the proposition that federal authorities are proscribed from
manipulating state processes to accomplish that which they cannot
constitutionally do themselves." United States v. Liddy,
542 F.2d 76, 79 (1979). The court of appeals stated that "the burden
of establishing that federal officials are controlling or
manipulating state processes is substantial." Id. Accordingly,
to satisfy this substantial burden, defendant must show that the
state officials had "little or no independent volition in the
state proceedings." Id.
Thus, assuming that the sham prosecution exception is available
in the international context, and that this same standard
applies, defendant Rashed must demonstrate that the Greek
officials had "little or no independent volition" in the Greek
proceedings and that the United States used the Greek prosecution
to achieve what they could not otherwise achieve under the
Constitution. Liddy, 542 F.2d at 79. Such a showing necessarily
eludes the defendant in this case. Simply put, Greece's decision
to prosecute was directly contrary to the United States'
expressed wishes. As such, it cannot be argued that Greece lacked
independent volition, when it refused to do what the United
States wanted it to do — extradite Rashed. Instead, Greece
exercised its independent, sovereign prerogative and chose to
prosecute Rashed under its own laws. A fortiori, then, the
United States cannot be said to have "manipulated" Greece into
prosecuting Rashed, when a Greek prosecution was the exact
opposite result from what the United States wanted to achieve.
Similarly, defendant's sham prosecution claim must also fail
because defendant is unable to point to anything whatsoever that
the U.S. prosecutors were able to achieve through a Greek
prosecution of Rashed that they could not have constitutionally
achieved in a prosecution in a United States court. Liddy, 542
F.2d at 79. Defendant does not point to any inadmissible evidence
that was used in the Greek proceeding. Nor, as was charged in
Liddy, were federal authorities trying to circumvent
defendant's speedy trial rights of the Sixth Amendment. Id.
Quite the contrary, the United States gained absolutely nothing
from the Greek prosecution, except for substantial delay of its
own opportunity to vindicate its own laws.
Nor does the fact that the United States cooperated and
assisted with the Greek prosecution counsel in favor of a finding
that the sham prosecution exception applies in this case. Despite
the fact that Rashed was never extradited pursuant to the
Montreal Convention, the Convention still imposed certain
obligations upon the United States and other signatory nations.
Specifically, Article 11(1) provides,
in relevant part, that "[c]ontracting states shall afford one
another the greatest measure of assistance in connection with
criminal proceedings brought in respect of the offences."
Montreal Convention, Art. 11(l) (emphasis added). Thus, as a
signatory to the Convention, the United States was required to
cooperate with the Greek authorities in their prosecution of
Rashed. Nothing in defendant's allegations leads this Court to
find that the United States' actions constituted conduct in
excess of its duty to provide "the greatest measure of
assistance" to the Greek authorities. Moreover, allegations of
cooperation between separate sovereigns do not amount to a
facially valid double jeopardy claim. See United States v. All
Assets Of G.P.S. Automotive Corp., 66 F.3d 483, 494 (2d Cir.
1995) (stating that "we have repeatedly held that even
significant cooperation . . . does not provide a basis for
applying the Bartkus exception"); Baptista-Rodriguez, 17 F.3d
at 1362 (stating that self-serving conclusions regarding
cooperation between sovereigns insufficient to establish prima
facie case under narrow exception); United States v.
Figueroa-Soto, 938 F.2d 1015, 1020 (9th Cir. 1991) ("None of
this close collaboration amounts to one government being the
other's `tool' or providing a `sham' or `cover.'"); Richardson,
580 F.2d at 947 (noting that cooperation between U.S. and
Guatemalan officials is standard practice); Gonzalez, 907
F. Supp. at 790 (rejecting sham prosecution claim, finding that
"defendant alleges nothing more than cooperation between state
and federal officials").
C. Blockburger's "Same Elements" Test
Having found that defendant's sham prosecution fails as a
matter of law, this Court need not reach the merits of his double
jeopardy claim. Rezaq, 134 F.3d at 1128 (holding that double
jeopardy claim was barred for two reasons: separate sovereigns
and different offenses); Liddy, 542 F.2d at 79 (denying double
jeopardy claim under sham prosecution exception without analyzing
identity of elements); see also Richardson, 580 F.2d at 947
(same). Nevertheless, assuming arguendo that the assistance and
cooperation of the United States in the Greek proceedings was
enough to satisfy the extremely narrow Bartkus exception,
defendant Rashed's claim would still face an insurmountable
hurdle. Specifically, double jeopardy only bars retrial when the
offenses charged are the "same offence." U.S. CONST. AMEND. V. To
determine whether double jeopardy bars a subsequent prosecution,
courts must inquire "whether each offense contains an element not
contained in the other." United States v. Dixon, 509 U.S. 688,
696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Blockburger v.
United States, 284 U.S. 299, 303, 52 S.Ct. 180, 76 L.Ed. 306
(1932) ("[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one
is whether each provision requires proof of an additional fact
which the other does not.").
Applying the "same elements" test to the present case, it
becomes patent that defendant's assertions lack merit. First,
with respect to Count 1, which alleges a conspiracy, there is no
analogue to this offense that was prosecuted in Greece. Defendant
concedes this point, but urges that in the international context,
a conduct-based test should apply because similar offenses may be
defined differently in various countries, But this approach has
been explicitly rejected by the Supreme Court. See Dixon, 509
U.S. at 704, 113 S.Ct. 2849 (overruling Grady v. Corbin,
495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)). Accordingly,
as the charges in Count 1 have yet to be tried, double jeopardy
does not apply.
A careful comparison of the rest of the United States charges
with those tried in Greece also demonstrates that defendant's
challenge must fail. Count 3 in the U.S. indictment alleges
premeditated murder in
the special maritime and territorial jurisdiction of the United
States (here, an aircraft owned by a U.S. corporation).
18 U.S.C. § 1111. The corresponding Greek charge, "intentional homicide by
a perpetrator dangerous to the public safety," does not contain
the premeditation element, nor, more critically, does it contain
the jurisdictional element.*fn6 Likewise, Count 4, which alleges
willful damage to a civil aircraft operated in foreign air
commerce, 18 U.S.C. § 32, contains both a mens rea and
jurisdictional element not found in its Greek counterpart, which
charges "instigation of damage to aircraft." Similarly, Count 5,
which alleges the use of an explosive to destroy an aircraft in
foreign air commerce that resulted in the death of a passenger,
18 U.S.C. § 844(I) also contains a jurisdictional element, as
well as the requirement that death resulted. Greek charge 3
simply charges defendant with "placement of an explosive device
in an aircraft" contains neither of these elements. Count 6 of
the United States indictment charges defendant Rashed with
placing a bomb on an aircraft "in and intended for foreign air
transportation" "with reckless disregard for the safety of human
life." But here again, Greek charge 3 contains neither the mens
rea requirement nor the jurisdictional element. Finally, with
respect to U.S. Count 7, there is no Greek counterpart for the
charge that defendant Rashed assaulted the crew and passengers of
the Pan Am flight. Accordingly, applying Blockburger to the
instant charges, the offenses charged in the U.S. indictment are
not the "same" as those tried in Greece. Thus, there is no double
jeopardy bar to trying defendant Rashed on these offenses in the
III. The Montreal Convention
Perhaps anticipating the likely demise of his sham prosecution
claim, defendant alternatively argues that the Montreal
Convention bars "serial" prosecutions. Specifically, defendant
asserts that the "extradite or prosecute" provision of the
Montreal Convention evidences an intent to preclude successive
prosecutions. Montreal Convention, Article 5(2). This argument is
misguided.*fn7 In short, whether
the Montreal Convention bars serial prosecutions is irrelevant to
this matter, as defendant Rashed was neither extradited nor taken
into custody pursuant to the Convention or any other extradition
treaty. As the Supreme Court has explained, "treaty limitations
apply only in the case of [a] person who has been brought within
the jurisdiction of the court by virtue of proceedings under an
extradition treaty." United States v. Alvarez-Machain,
504 U.S. 655, 659, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (quoting United
States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425
(1886)). Here, Rashed was taken into custody by U.S. authorities
through means other than the Montreal Convention or any other
treaty. Consequently, any supposed limitation in the Montreal
Convention would not extend any benefit or protection to