MEMORANDUM^*

We consider in this appeal the denial of Thompson's motion to dismiss his indictment on the ground of double jeopardy. He contends that double jeopardy bars the federal prosecution under the exception to the Dual Sovereignty Rule noted in Bartkus v. Illinois, 359 U.S. 121 (1959). See also United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir.1987).

Thompson was charged in a Washington state court with unlawful possession of cocaine with intent to deliver, and unlawful possession of marijuana with intent to deliver. The possession of cocaine charge was dismissed, and Thompson pled guilty to the remaining charge, possession of marijuana. He was sentenced by the state to fifteen days imprisonment.

Approximately six weeks after his state conviction and sentence, the United States in a federal indictment charged Thompson with conspiracy to distribute cocaine, possession of an unregistered sawed-off shotgun, and possession with intent to distribute a mixture containing 50 grams of cocaine base. The federal charge arose out of the same nucleus of facts supporting the state conviction.

Thompson asserted by motion that the federal prosecution violated his Fifth Amendment right not to be subject to double jeopardy. The district court denied his motion and this appeal was filed in a timely manner.

The basic rule asserted by Thompson is well-understood. No person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." U.S. Const. Amend. V. However, the prohibition against twice being placed in jeopardy does not foreclose a second prosecution by a different sovereign for the same offense. Heath v. Alabama, 474 U.S. 82, 93 (1985).

It is a narrow exception to the dual sovereignty rule that is implicated in this case. If the second prosecution, otherwise permissible under the dual sovereignty rule, is not pursued to vindicate the separate interests of the second sovereign, but is merely pursued as a sham on behalf of the sovereign first to prosecute, it may be subject to a successful double jeopardy challenge. United States v. Bernhardt, 831 F.2d at 182.

Thompson maintains that the facts presented here are sufficient to sustain a successful double jeopardy attack on the federal prosecution. We disagree.

First, it is noted that the federal charge does not duplicate the state offenses. Thompson was put in jeopardy in the state court only for possession of marijuana. In federal court he was charged with conspiracy to distribute cocaine, possession of cocaine base, and possession of a sawed-off shotgun. The federal sovereign thus sought to vindicate separate interests than did the state sovereign.

It is true that the federal government relied in part on information provided by the state, but there is evidence of independent federal involvement as well. The actions of federal enforcement officials, acting independently to vindicate federal interests, are sufficient to remove this case from the reach of the Bartkus exception.

The district court properly denied Thompson's motion to dismiss on double jeopardy grounds. United States v. Vaughan, 715 F.2d 1373, 1376 (9th Cir.1983). The judgment is AFFIRMED.