March 29, 2024

Obligate Law

Professional Law Makers

Precluding Re-Litigation in Dual Sovereignty Cases

8 min read
Precluding Re-Litigation in Dual Sovereignty Cases

I. Introduction – Imagine you have a client who robs a federally insured bank and is arrested. You discover that the Federal Bureau of Investigation orchestrated the witch-hunt of your client with local authorities. Subsequently, the client discovers that he is being prosecuted for the offense by both state and federal governments. In spite of your client’s acquittal under state bank robbery charges, a similar prosecution is underway in federal court. Your client protests and claims the protection of the double jeopardy clause under the Fifth Amendment. The federal prosecutors smile generously and hand you copies of precedent on dual sovereignty. Is it possible to prevent re-litigation of the same facts already decided in state court? Yes, it is! This article will demonstrate the steps to preclude re-litigation under dual sovereignty, despite the uphill battle you and your client will face.

II. Dual Sovereignty Does Not Prohibit Re-prosecution Under Double Jeopardy Unless Vindictiveness and Manipulation of the Prosecution Is Shown

The Fifth Amendment to the United States Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This protection against “double jeopardy” is intended to prevent the government from retrying the same defendant over and over until prosecutors can get a conviction. However, our adversaries will hide behind its exception because dual sovereignty is not within the purview of double jeopardy. The embarrassment, expense, and ordeal of re-prosecution are often justified by the state and federal sovereigns right to enforce its own laws.

As the federal criminal code continues to grow in conjunction with local and federal cooperation during investigations, it seems likely we’ll see more examples of defendants who are tried twice for the same crime.

The United States Attorneys’ Manual states that federal prosecutors may only pursue a second prosecution for compelling reasons if given prior approval from the assistant attorney general in bringing the subsequent prosecution. This policy discourages unnecessary expenditure of federal resources in order to protect people from unfair criminal prosecution. Furthermore, re-trying a defendant in federal court for the same charges he or she was acquitted of in state court appears to be an unnecessary expenditure of federal resources. Therefore, re-prosecution does not appear compelling. However, this is often a catch-22 for defense attorneys even when the assistant attorney general provided no prior approval. A defendant may not obtain a dismissal of a federal indictment for abuse of discretion over the objection of the government. Even though your defendant may be barred from turning to the internal policies of the United States Attorneys’ Manual, there is a strong public policy against sham prosecutions under the dual sovereignty doctrine.

Under dual sovereignty a crime by both federal and state sovereignties is an offense against the peace and dignity of both and may be punished by each. However, the scope of this doctrine has expanded over the years. The majority view held today suggests that federal prosecution after state conviction or acquittal would only be allowed if the federal statute invoked was intended to protect an interest distinct from that underlying the state statute or else the dual sovereignty concept would result in repetitive harassment of the defendant. As an advocate for your client, it is essential to tie this principle to the cooperation between federal and state authorities where the public interest is best served in the jurisdiction, which the case is first tried. Any subsequent interest in re-litigating the case would be essentially the same as the first making the appearance of a sham prosecution. The collusion between state and federal authorities is analogous to the concept that the same sovereign is prosecuting both cases and a second successive prosecution is in reality a cover for the first prosecution. In rebuttal, federal prosecutors will argue their interest in seeking sufficient jail time outweighs the vindictiveness of another prosecution. Even if federal prosecutors are not satisfied with the outcome of the state trial, a judge may determine that their interest holds weight in the re-prosecution of the defendant.

Cooperation between state and federal officials by itself does not necessary give rise to vindictiveness when the subsequent prosecution has a distinct and separate interest from the first prosecution. However, a second prosecution by another sovereign is barred when manipulation of the federal system by state officials to achieve the equivalent of a second state prosecution to accomplish what they could not accomplish constitutionally themselves. The defendant bears the burden of establishing that the prosecution was undertaken in retaliation for the exercise of a legally protected constitutional or statutory right or because of some specific animus or ill will on the prosecutor’s part. Here, the protected constitutional rights of the defendant would be violated if the subsequent prosecution is undertaken by federal prosecutors acting as puppets for state prosecutors. Currently, no court has ruled on this particular issue regarding a state officials manipulation of the federal system in retaliation of an acquittal. Although, we do know that it is not enough to bar a second prosecution when a defendant has demonstrated that the Assistant United States Attorney who prosecuted his federal case also supervised the attorney who prosecuted his state case.

Absent these extraordinary circumstances, a prosecutor’s charging decisions are entitled to the presumption that they were made in good faith and without discriminatory intent. Although the United States Attorneys’ Manual lists some grounds for dismissing federal indictments including cases where no substantial federal interest would be served. It is often difficult for defense attorneys who cannot rely on these internal policies while prosecutors are given the benefit of the doubt in these extraordinary circumstances. Nevertheless, the collusion between state and federal authorities should never be disregarded because it does more than show vindictiveness and manipulation but preserves the issue of privity between both state and federal prosecutors in precluding issues already determined in the first prosecution.

III. Federal Prosecutors Cannot Proceed With An Indictment If An Ultimate Issue Favors the Defendant

Collateral estoppel will bar re-litigation of facts that were decided in the defendant’s favor at a previous trial if the prosecution involves the same parties as the first trial and the issue in the subsequent trial was previously determined by a valid and final judgment. This may bar retrial in cases that the double jeopardy clause would not; however, unlike double jeopardy, collateral estoppel does not prohibit successive prosecution. Even though there is a successive prosecution, it would be difficult for federal prosecutors to proceed to trial if they cannot litigate an essential element of the charge. But before your client can seek to foreclose on the prosecutor’s reuse of evidence, it must be determined whether it is possible to meet both prongs of the collateral estoppel doctrine in a subsequent hearing.

A. There Must Be At Least Privity Between the Two Sovereigns To Preclude the Reuse Of Evidence

The difference in sovereigns does not bar the reuse of evidence unless there is privity between state and federal authorities. Even though the parties are not the same in the second prosecution, there is collusion between state and federal authorities as discussed earlier. In U.S. v. Davis, privity existed between state and federal authorities when there was a joint investigative unit to coordinate the efforts of state and federal enforcement agencies. Similarly, the Federal Bureau of Investigation will supervise and allocate resources to local agencies in an effort to locate your client. This collaboration infers that the federal government is a party to the state prosecution’s case and the state prosecution had a full and fair opportunity to litigate the admissibility of evidence in the state proceeding. Therefore, this prong would be satisfied in an attempt to dismiss the indictment because it violates the fundamental notions of justice, decency and fair play.

B. Even If the Identity Of Parties Existed Through Privity, Preclusion Would Be Inappropriate Unless the Issue was Necessarily Determined In the First Proceeding.

Evidence of a crime the defendant has been acquitted may be introduced at a subsequent trial if the acquittal did not determine an ultimate issue in the present case. Here, the defense may be limited if the defendant’s innocence was not necessarily determined in the first proceeding. Furthermore, an acquittal in a previous trial could have been based on jury error. Therefore, a general verdict by itself will not suffice unless a rational jury could have reached its verdict upon an issue that the defense is seeking to preclude in the successive prosecution. Federal courts will make an independent inquiry, whether or not there has been such a finding in state court regarding the conclusiveness of the issue being re-litigated.

As an advocate for your client, it is essential that you direct the court to the records of the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter to conclude that the issue sought to be foreclosed on was previously resolved.

If the jury in that previous case “necessarily determined” a certain fact in the defendant’s favor, then there cannot be a later case against that same defendant if the subsequent case requires proof of that same fact. In Ashe v. Swenson, federal prosecutors were forced to foreclose on charges brought against the defendant when the issue of the defendant’s identity as one of the robbers in the second trial was necessarily determined in the previous proceeding. Here, federal prosecutors would be barred from proceeding with charges if it were determined that your client was acquitted under state charges because the jury determined he was not the individual who robbed the bank. If the prosecutor cannot litigate an essential element of the charge, it may trigger the government to seek another charge that does not require that specific element be met. This would include the possibility of a charge of conspiracy to commit robbery against your client.

IV. If the Prosecution Is Precluded From Re-Litigation They May Find Success Under A Conspiracy Theory

The federal government could try your client under a conspiracy theory if obligated to dismiss the indictment on the federal bank robbery charge. A conspiracy charge could be established without proving an issue of ultimate fact based on the previous trial since other actions in furtherance of the conspiracy could establish the requisite overt acts. Facts essential under the conspiracy prosecution may not include those facts of the substantive offense. Ultimately, the government may use evidence that would necessarily indicate participation in the conspiracy, which the government failed to prove in the first trial.

V. Conclusion

Restricting the federal prosecution in a criminal proceeding following an acquittal in state court is often a difficult task for any defense attorney. Federal prosecutors will often turn to the dual sovereignty doctrine to permit a second prosecution in these cases. However, this doctrine puts aside the rights of your client and is merely justified by the government’s interest in punishing your client. The intense federal and state cooperation tends to reveal the disparity between the two distinct sovereigns regardless of their interests.

The major risk to your client flows from the federal prosecutor’s opportunity to present evidence in a more persuasive fashion based on the weaknesses of the preceding trial. At the very least, you will be able to prevent the prosecutor from re-litigating issues ultimately determined in the previous case so that another fact-finder will not be more prone to convict in the later proceeding. Furthermore, the harassment, emotional and financial expense of a successive prosecution can take a toll, not only, on the defendant, but also on you as the zealous advocate for your client. Courts have stated that prosecutors should use successive prosecutions sparingly. Therefore, you must put a stop to the federal prosecutor’s ability to inflict a significant, and constitutionally prohibited, burden on your client.

Copyright © All rights reserved. | Newsphere by AF themes.