United States of America v. Kenneth Dewayne Willis

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0372p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH DEWAYNE WILLIS,
Defendant-Appellant.
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No. 20-5229
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:19-cr-00086-1—David J. Hale, District Judge.
Decided and Filed: December 1, 2020
Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Frank W. Heft, Jr., Chastity R. Beyl, OFFICE OF THE FEDERAL DEFENDER,
Louisville, Kentucky, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY’S
OFFICE, Louisville, Kentucky, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Kenneth Dewayne Willis has been charged
with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He
seeks to dismiss the indictment on the grounds that the current federal prosecution constitutes
double jeopardy and violates the collateral-estoppel doctrine because Willis has already been
prosecuted in state court based on the same underlying conduct. The district court denied
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Willis’s motion to dismiss. For the reasons set forth below, we DISMISS Willis’s appeal for
lack of appellate jurisdiction.
I. BACKGROUND
In July 2016, the Commonwealth of Kentucky charged Willis in state court with murder,
possession of a handgun by a convicted felon, and first-degree possession of a controlled
substance. The gun charge was severed from the other two charges prior to trial, with the trial
beginning in February 2019. At trial, a directed verdict in Willis’s favor was granted on the drug
charge. Willis was also acquitted by a jury on the murder charge, but he was convicted of the
lesser offense of reckless homicide. He was sentenced to five years of imprisonment in April
2019.
The United States indicted Willis in federal court on the current charge of being a felon in
possession of a firearm the following month. The Commonwealth dismissed the state gun
charge shortly thereafter. Willis subsequently filed a motion to dismiss for prosecutorial
vindictiveness, which the district court denied. He then filed a motion to dismiss based on
double jeopardy. The district court denied that motion as well, holding that neither double
jeopardy nor collateral estoppel applies when two sovereigns—here, the United States and
Kentucky—prosecute a defendant based on the same underlying conduct. Furthermore, the
district court concluded that Willis had not demonstrated that he was the victim of a “sham
prosecution,” an exception to the dual-sovereignty doctrine. This interlocutory appeal followed.
II. ANALYSIS
A. Jurisdiction
Generally, our jurisdiction is limited to appeals from final judgments. 28 U.S.C. § 1291.
An order denying dismissal on double-jeopardy grounds lacks finality, but is appealable under
the collateral-order doctrine provided that the claim is “colorable.” Richardson v. United States,
468 U.S. 317, 322 (1984) (“[W]e have indicated that the appealability of a double jeopardy claim
depends upon its being at least ‘colorable.’”) (quoting United States v. MacDonald, 435 U.S.
850, 862 (1978)); see also United States v. Pi, 174 F.3d 745, 748 (6th Cir. 1999) (“[W]e must

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exercise jurisdiction to the extent necessary to determine whether or not defendants’ double
jeopardy claim is colorable.”). A colorable claim, the Supreme Court has observed,
“presupposes that there is some possible validity to a claim.” Richardson, 468 U.S. at 326 n.6.
B. Willis’s double-jeopardy claim is not colorable
1. Willis was charged with different crimes
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
guarantees that no person shall “be subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. This Clause, however, does not protect individuals from
being twice prosecuted “for the same conduct or actions,” but instead from being twice
prosecuted “for the same offence.” Gamble v. United States, 139 S. Ct. 1960, 1965 (2019)
(internal citation and quotation marks omitted). Because the Clause’s focus is on the statutory
offenses for which a defendant is prosecuted, the “general test for compliance with the double
jeopardy clause looks to ‘whether each [statute] requires proof of a fact which the other does
not.’” United States v. Gibbons, 994 F.2d 299, 301 (6th Cir. 1993) (quoting Blockburger v.
United States, 284 U.S. 299, 304 (1932)).
In this case, Willis contends that the current federal prosecution charging him with being
a felon in possession of a handgun violates the double-jeopardy principle because he was
previously convicted in state court of committing reckless homicide with the same handgun. The
crime of being a felon in possession of a handgun, however, requires proof of different facts
from those required for the crime of reckless homicide. Under federal law, the crime of
possessing a gun after a felony conviction has the following elements:
(1) the defendant was a felon; (2) the defendant knew he was a felon (from
Rehaif); (3) the defendant knowingly possessed a firearm; and (4) that the firearm
had traveled through interstate commerce.
United States v. Ward, 957 F.3d 691, 696 (6th Cir. 2020) (citing Rehaif v. United States, 139 S.
Ct. 2191, 2200 (2019)). The crime of reckless homicide, under Kentucky law, contains none of
these elements. “A person is guilty of reckless homicide [in Kentucky] when, with recklessness

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he causes the death of another person.” Ky. Rev. Stat. Ann. § 507.050(1). Because these two
crimes contain different elements, Willis’s double-jeopardy claim is not colorable.
2. Willis was prosecuted by different sovereigns
And even if Willis had been convicted of the same crime in state court as the crime
charged in his federal indictment, his appeal would still fail. Pursuant to the dual-sovereignty
doctrine, a “State may prosecute a defendant under state law even if the Federal Government has
prosecuted him for the same conduct under a federal statute.” Gamble, 139 S. Ct. at 1964.
“Or the reverse may happen, as it did [in Gamble]” and as it did here. Id. Willis’s response is to
focus on the dissent in Gamble as having the better argument. But Gamble remains the
controlling law and we will “appl[y] [this] precedent without qualm or quibble.” Id. at 1967.
Willis’s collateral-estoppel claim fails for the same reason. The Constitution’s protection
against double jeopardy embodies the principle of collateral estoppel, which provides “that when
an issue of ultimate fact has once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson,
397 U.S. 436, 443 (1970). In this case, however, Willis’s state and federal prosecutions involve
different parties. Because two sovereigns are permitted to prosecute Willis for the same offense,
Gamble, 139 S. Ct. at 1964, “it would be anomalous indeed” if the United States were denied the
“lesser power of proving the underlying facts of such offenses.” United States v. Tirrell,
120 F.3d 670, 676 (7th Cir. 1997); see also United States v. Kummer, 15 F.3d 1455, 1461 (8th
Cir. 1994) (“The collateral estoppel and res judicata doctrines do not apply when different
sovereigns and, thus, different parties are involved in criminal litigation.”) (internal citations
omitted); United States v. Douglas, 336 F. App’x 11, 14 (2d Cir. 2009) (“Pursuant to the ‘dual
sovereign’ doctrine, neither double jeopardy nor collateral estoppel precluded the federal
government from bringing charges based on the same events that inspired the state law charges
for which Douglas was previously tried and acquitted.”) (citing Heath v. Alabama, 474 U.S. 82,
88–89 (1985)).

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No. 20-5229 United States v. Willis Page 5
3. The “sham-prosecution” exception does not apply
Willis, however, invokes the “sham prosecution” exception to the dual-sovereignty
doctrine. The Supreme Court suggested this exception to the dual-sovereign doctrine when it
noted in dicta that
[the record] does not support the claim that the State of Illinois in bringing its
prosecution was merely a tool of the federal authorities, who thereby avoided the
prohibition of the Fifth Amendment against a retrial of a federal prosecution after
an acquittal. It does 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.
Bartkus v. Illinois, 359 U.S. 121, 123–24 (1959). We have recognized that “the Bartkus sham-
prosecution exception is a narrow one and, so far as this circuit is concerned, it is an exception
that has yet to affect the outcome of a single case.” United States v. Djoumessi, 538 F.3d 547,
550 (6th Cir. 2008).
Willis falls far short of meeting this narrow exception. He has not made the “startling
showing” that the “Federal Government was ‘merely a tool’ of the State of [Kentucky] in
undertaking this prosecution, somehow ceding its sovereign authority to prosecute and acting
only because the State told it to do so.” Id. (quoting Bartkus, 359 U.S. at 123). Although Willis
asserts that the “federal prosecution is a reaction to the favorable verdict he received in state
court”, he offers no evidence to support such speculation. Nor does Willis offer any evidence
tending to show that the federal prosecution was a tool of, or a cover for, the Commonwealth’s
prosecution.
Moreover, Willis’s argument falls well outside the scope of the sham-prosecution
exception. The exception addresses the concern that one sovereign might “sidestep the
constraints of the Double Jeopardy Clause through a ‘sham’ prosecution by an ostensibly
different sovereign.” Djoumessi, 538 F.3d at 550. In this case, however, there were no
constraints for the Commonwealth to sidestep. The state trial court severed the handgun charge
before trial, leaving the Commonwealth free to pursue that charge after the trial concluded.
Because the Double Jeopardy Clause did not bar the Commonwealth’s later prosecution of the

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handgun charge, any contention that the federal prosecution was “merely a tool” of the State,
allowing the State to circumvent the strictures against double jeopardy, is without merit.
III. CONCLUSION
For all of the reasons set forth above, we DISMISS Willis’s appeal for lack of appellate
jurisdiction.

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