Peter A. Crusco (NYLJ/Rick Kopstein)
No one could have foreseen the growth of Internet related crimes at the advent of the digital age. Today, not a week goes by without the announcement of some huge Internet-based computer theft, or hacking scheme jeopardizing countless confidential personal or financial databases and the files contained therein, or a security break in a sensitive governmental database, to name a few. The digital world has facilitated the growth of many industries including the expansion of criminal organizations, and the growth and development in a variety of new methodologies to commit the same old crimes but in increased scope, scale and harm. Many of these crimes have vague geographic boundaries creating threats that may result in close scrutiny by multiple sovereigns including federal, state and local law enforcement. A particular cyber crime may be plotted and/or intended to occur by its perpetrators in one or more jurisdictions, and multiple parallel state and federal investigations may target parts of these criminal ventures and the criminal organizations behind them. The government agencies involved in the investigation of these matters may not be aware of each other’s interest until their paths cross from some later discovered common thread. Thereafter, the courts are inevitably called upon to referee these parallel cases after arrests are made and the cases appear on their dockets. This article will discuss some of these established rules and how the courts have applied them.
Dual Sovereignty Doctrine
The constitutional prohibition against being twice put in jeopardy provided in the double jeopardy clauses of the federal and state constitutions stands in the forefront limiting the possibility of successive prosecutions. N.Y. Constit Art I, §6. The double jeopardy clause of the Fifth Amendment provides that no “person shall be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V, cl. 2. The double jeopardy clause protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.
Nevertheless, under the dual sovereignty doctrine, the U.S. Supreme Court has repeatedly held that the federal constitution does not bar successive prosecutions for the same offense by different sovereigns. The doctrine is based on the premise that a defendant whose conduct violates the laws of two sovereigns has committed two different offenses by the same act. Thus, under the U.S. Constitution, a defendant convicted or acquitted of an offense in a federal court, or in a court of another state, may subsequently be prosecuted for the same offense in a court of this or any other state which has jurisdiction in the matter with some exceptions. See Heath v. Alabama, 474 U.S. 82 (1985) (holding that, pursuant to dual sovereign doctrine, successive prosecutions by two states for the same conduct is not barred by the double jeopardy clause); Matter of Mason v. Rothwax, 152 A.D.2d 272 (1st Dept. 1989) (prosecution of same conduct by two different sovereigns does not offend double jeopardy provisions of either constitution).
A narrow exception to the dual sovereignty doctrine, known as the “Bartkus exception,” provides “[i]f 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.” Bartkus v. Illinois, 359 U.S. 121 (1959); see also United States v. Perryman, 2013 U.S. Dist. LEXIS 111117, *10-11 (E.D.N.Y. Aug. 7, 2013). Under the Bartkus exception, a prosecution may be barred for double jeopardy where there is a substantial showing that circumstances existed in “which state and federal prosecutions were so intertwined as to undermine the assumption that two supposedly independent criminal actions were prosecuted by separate sovereigns.” Bartkus, 359 U.S. 121; United States v. Wheeler, 435 U.S. 313 (1978). The key criterion in determining whether the application of this exception is warranted is not the extent of control exercised by one prosecuting authority over the other but rather the ultimate source of the power under which the respective prosecutions were undertaken. Wheeler, 435 U.S. at 320. Under the Bartkus exception, the defendant bears an “onerous burden” of proving that the state prosecution was merely a tool of federal prosecutors. In order to obtain an evidentiary hearing the defendant must submit admissible evidence of “federal orchestration.” United States v. Russotti, 717 F.2d 27 (2d Cir. 1983). Even the cross-deputization of a state prosecutor to assist in a federal investigation is not, without other compelling evidence, sufficient proof to satisfy the defense’s burden. Joint cooperation without more is insufficient to show that the state prosecution was a sham. Indeed, courts have frequently opined that “cooperation between state and federal police agencies and prosecutorial organizations is both laudatory and desired.” See generally Russotti, 717 F.2d 27; United States v. Pirk, 2017 U.S. Dist. LEXIS 115131 (W.D.N.Y. July 24, 2017).
An additional impediment to successive prosecutions is the “same elements test” established in United States v. Blockburger, 284 U.S. 299 (1932), which set the standard for analyzing whether offenses are the same in law. The test asks whether each offense contains an element not contained in the other and provides that, if not, they are the same offense and double jeopardy bars additional punishment and successive prosecution. The test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. See, e.g, Ex Parte Rodriguez, 2017 Tex. Crim. App. LEXIS 476 (May 17, 2017).
A state’s double jeopardy constitutional and statutory provisions may, of course, further limit successive prosecutions by that particular state. In New York state, protection against double jeopardy is statutory as well as constitutional. New York Criminal Procedure Law (CPL) §40.20, provides, inter alia, that “a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless: each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.” See, e.g., Matter of Polito v. Walsh, 8 N.Y. 3d 683 (2007); People v. Helmsley, 170 A.D.2d 209 (1st Dept. 1991) (single criminal venture). Section §40.20 supersedes the dual sovereignties doctrine and extends double jeopardy protection generally to offenses arising out of a common event. Unless one of the enumerated exceptions set forth in §40.20(2) applies, a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction. Thus, absent statutory exceptions, no matter the number of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct. See, e.g., People v. Nowakowski, 132 Misc. 2d 31 (Nassau Co. 1986).
New York’s statutory double jeopardy, CPL §40.20, includes seven exceptions. In litigation over one of those exceptions, in People v. Bryant, 92 N.Y.2d 216 (1998), a federal prosecution proceeded first, and the court found that the later prosecution in state court was not barred under New York’s double jeopardy statute. The court opined that despite the prior related federal prosecution, each of the federal crimes committed by the defendants contained an element that was not an element of any of the state crimes. See CPL §40.20 (2) exceptions to CPL 40.20(1); People v. Lennon, 80 A.D.2d 672 (3d Dept. 1981) (New York prosecution for possession of stolen property was barred by earlier Massachusetts prosecution for larceny).
Conspiracy charges present an interesting permutation to the dual sovereignty doctrine. For instance in Seda v. Sise, the defendant had pled guilty to a single federal count of violating 21 U.S.C. §841(a)(1) for conspiracy to possess and to distribute heroin and cocaine. He was charged in a state indictment with criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. The state court granted a writ of prohibition barring the state’s prosecution on the indictment based upon its interpretation of CPL §40.20 (2), and its determination that because of the “embracive nature of the crime of conspiracy,” a prosecution of a substantive offense that could have been alleged and proved in support of a prior prosecution for conspiracy violated the CPL §40.20(2) prohibition against separate prosecution of offenses “arising out of the same criminal transaction.” See CPL §40.10(2) defining “criminal transaction”; Matter of Mason v. Rothwax, 152 A.D.2d 272; People v. Helmsley, 170 A.D.2d 209. The court found that the prosecutions were so closely related or connected in point of time and circumstance as to constitute a single criminal prosecution. Defendant’s possession of cocaine was an additional overt act in furtherance of the continuing conspiracy alleged in the federal indictment. Seda v. Sise, 231 A.D.2d 36, 38 (3d Dept. 1997); see also People v. Abbamonte, 43 N.Y. 2d 74, 86 (1977); People v. Yank, 305 A.D.2d 1001 (4th Dept. 2003). On the other hand, a contrary determination may result when the first prosecution is in state court followed by a second prosecution in federal court. For instance, the defendant in United States v. Reid, 2014 U.S. Dist. LEXIS 44979 (W.D.N.Y. 2014), had been prosecuted in state court for a substantive drug offense and convicted. He was subsequently prosecuted in federal court for a conspiracy in which the prosecution admitted into evidence his prior state conviction for possession of narcotics. The court determined that the admission of this evidence did not violate the prohibition against double jeopardy because it was relevant to the conspiracy charges, which required proof of an overt act in furtherance of the conspiracy. The rule is that double jeopardy does not, however, prevent a prosecution for conspiracy where the conspiracy’s overt acts are crimes for which the defendant has been convicted. The overt act itself is not the crime in a conspiracy prosecution; it is merely an element of the crime that has as its basis the agreement.
Although Internet-based crime has grown exponentially, and the opportunity for conflict and cross-over among the various impacted sovereignties and their investigative and prosecutorial agencies exists, the courts’ application of well established legal rules prevent unwarranted successive criminal prosecutions for the same criminal transactions unless established legal exceptions apply.