People v. Hermiz

551 N.W.2d 389, 453 Mich. 269

Opinions

Weaver, J.

The question presented in these consolidated criminal appeals is whether Michigan was barred from indicting these defendants for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine when they had previously been convicted in federal court of conspiracy to possess with intent to distribute more than five kilograms of cocaine and interstate travel to facilitate a cocaine conspiracy. We would hold that the Michigan Constitution, as the United States Constitution, does not prohibit successive state and federal prosecutions. In so holding, we would overrule People v Cooper, 398 Mich 450; 247 NW2d 866 (1976). We would remand to allow the trial court to consider whether these successive prosecutions were prohibited by MCL 333.7409; MSA 14.15(7409).

I

HERMIZ

In October, 1989, Issam Hermiz was indicted in federal court in the middle district of Florida for conspiring to possess with intent to distribute five kilograms or more of cocaine, 21 USC 841(a)(1). Hermiz was convicted as charged and sentenced to a prison term of 211 months. In July, 1990, Hermiz was indicted in Oakland County, Michigan, for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). After a jury trial, Hermiz was convicted as charged and sentenced to life imprisonment without parole. Hermiz appealed, arguing that the Oakland County indictment violated the double jeopardy prohibition. The Court of Appeals affirmed Hermiz’ conviction.¹ This Court granted leave to appeal.² We affirm in part and remand with instructions.

MEZY

In August, 1988, Basil Mezy was indicted in federal court of the eastern district of Michigan for conspiracy to possess with intent to distribute more than four kilograms of cocaine, 21 USC 841(a)(1) and 846.³ Mezy pleaded guilty of laundering money instruments,

18 USC 1956(a)(2)(B)(ii)⁴ in exchange for a dismissal of the conspiracy charge. He was sentenced to thirty-three months in federal prison.

In June, 1989, Mezy was indicted in federal court for the middle district of Florida for conspiracy to possess with intent to distribute more than five kilograms of cocaine, 21 USC 841(a)(1) and 846, and interstate travel to facilitate a cocaine conspiracy, 18 USC 1952(a)(3). Mezy was convicted of one count of the former and two counts of the latter. Mezy was sentenced to concurrent prison terms of twenty-two and five years. These terms are to run consecutively to the money-laundering sentence.

In July, 1990, Mezy was charged in Oakland Circuit Court with conspiracy to possess with intent to deliver more than 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).⁵ Mezy was subsequently convicted as charged and received the mandatory sentence of life imprisonment without parole. Mezy appealed, arguing that the Oakland County indictment violated the double jeopardy prohibition. The Court of Appeals, relying on the conviction in the federal court for the eastern district of Michigan, reversed Mezy’s conviction.⁶ This Court granted leave to appeal.⁷ We would reverse and remand with instructions:

n

In Mezy’s case the first issue is whether, for purposes of a double jeopardy analysis, we should consider the charge on which Mezy was indicted in the Eastern District of Michigan, conspiracy to possess with intent to deliver more than four kilograms of cocaine, or the charge to which he pleaded guilty, laundering money instruments. We follow the federal rule and hold that a prosecution on charges dismissed pursuant to a plea agreement does not violate the Double Jeopardy Clause where the newly charged offense is a different offense for double jeopardy purposes than the crime to which the defendant has pleaded guilty. See United States v Gamer, 32 F3d (CA 8, 1994); United States v Rivera-Feliciano, 930 F2d 951, 953-954 (CA 1, 1991);⁸ see also Ricketts v Adamson, 483 US 1, 8; 107 S Ct 2680; 97 L Ed 2d 1 (1987) (the Court noted that a plea of guilty for a lesser included offense generally would have precluded a charge of the greater offense on double jeopardy grounds except for the fact that the defendant violated his plea agreement). Jeopardy does not attach to charges dismissed as part of a plea agreement. Gamer, supra at 1311, n 6. United States v Vaughan, 715 F2d 1373, 1376-1377 (CA 9, 1983). Thus, we may consider only the charge to which Mezy pleaded guilty, laundering money instruments, not the charge on which he was indicted. This prior conviction of laundering money instruments raises no double jeopardy issues under either the statute or the constitution with respect to Mezy’s state court indictment for conspiracy to possess with intent to deliver more than 650 grams of cocaine. See United States v Felix, 503 US 378, 388-389; 112 S Ct 1377; 118 L Ed 2d 25 (1992) (a substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes).⁹

m

Both defendants assert that their Oakland Circuit Court indictments were barred under the Michigan Constitution’s Double Jeopardy Clause, relying on People v Cooper, supra. The information regarding the federal convictions is very sparse. In considering whether there are one or two conspiracies for purposes of the Double Jeopardy Clause, the following factors are considered: time, persons acting as coconspirators, statutory offenses charged in indictménts, overt acts charged by government, and places where events alleged as part of conspiracy took place. United States v Thomas, 759 F2d 659 (CA 8, 1985). The defendants clearly met the initial burden of establishing a prima facie nonfrivolous claim of double jeopardy. This was done primarily by showing the similarity of the charges, and the substantial overlap in time of the two conspiracies charged. Thus, the burden shifted to the government to demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution. United States v Schinnell, 80 F3d 1064, 1066 (CA 5, 1996).¹⁰ The peo pie failed to meet this obligation, because not enough information was provided to show by a preponderance of the evidence that the offenses were distinct. The people have not demonstrated that the trial court committed any clear error in its findings of fact, or that it erred in its application of the constitutional test under Thomas in concluding that the people failed to carry their burden. Thus, for purposes of the constitutional double jeopardy claim, we must assume that the federal and state conspiracies are the same. This leads us to address, as requested by the plaintiffs, the continuing validity of Cooper.

The United States Constitution provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . ...” US Const, Am V. The United States Supreme Court has consistently held that successive state and federal prosecutions are not a violation of the Fifth Amendment. Bartkus v Illinois, 359 US 121, 132; 79 S Ct 676; 3 L Ed 2d 684 (1959). The reasoning behind this holding was clearly set out in Heath v Alabama, 474 US 82, 88; 106 S Ct 433; 88 L Ed 2d 387 (1985).

The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “offences.” As the Court explained in Moore v Illinois [55 US] (14 How) 13, 19; 14 L Ed 306 (1852), “[a]n offence, in its legal signification, means the transgression of a law.” Consequently, when the same act transgresses the laws of two sovereigns, “it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” [Citations omitted.]

The language of the Michigan Constitution’s double jeopardy provision is substantially similar to that of the United States Constitution. The Michigan Constitution was amended in 1963 to provide: “No person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15. Before 1962, the wording of Michigan’s Double Jeopardy Clause was, “No person, after acquittal upon the merits, shall be tried for the same offense.” Const 1908, art 2, § 14.

When construing a constitution, the Court’s task is to “divine the ‘common understanding’ of the provision, that meaning ‘which reasonable minds, the great mass of the people themselves, would give it.’ ” People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983). Relevant considerations include the constitutional convention debates, the address to the people, the circumstances leading to the adoption of the provision, and the puxpose sought to be accomplished. Id. at 209.

At the 1961 Constitutional Convention a delegate stated that the Supreme Court of Michigan virtually had held the prior provision to mean “the same thing as the provision in the federal constitution, which is what we have put in . . . .” Another delegate expressly agreed that the change in the language would make no change “in the rule we have hitherto had.” 1 Official Record, Constitutional Convention 1961, p 539. In light of this clear expression of intent by the convention delegates that there be no change in the then-existing case law, we find it significant that in 1958 this Court had held, “When a defendant has violated both State and Federal laws he is liable to each sovereign and subject to prosecution by each.” In re Illova, 351 Mich 204, 209; 88 NW2d 589 (1958).¹¹

In 1976 this Court held that this constitutional provision “prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different.” People v Cooper, supra at 461. Finding the case to have been wrongly decided, we would overrule People v Cooper.

Cooper stated that it questioned the continued validity of United States Supreme Court decisions,¹² and therefore the Court “preferred to rest the deci sion on our state constitution.”¹³ In so doing this Court failed to follow the general rule that “[u]nless there is a compelling reason to afford greater protection under the Michigan Constitution, the Michigan and federal provisions will be treated as affording the same protections.” People v Perlos, 436 Mich 305, 313, n 7; 462 NW2d 310 (1990).

We would now join the overwhelming majority of state courts that recognize the validity of dual federal and state convictions.¹⁴ In accordance with this recognition that state and federal governments may punish the same offenses, we would hold that neither defendant’s subsequent state prosecution violated the double jeopardy provisions of the Michigan or United States Constitution.

IV

Defendants also assert that their Oakland Circuit Court indictments were barred by MCL 333.7409; MSA 14.15(7409), arguing that the indictments in state court arose out of the same acts on which their convictions in the Florida federal court were based. MCL 333.7409; MSA 14.15(7409), enacted in 1978, applies only to controlled substance crimes. Section 7409 reads:

If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

As of the fall of 1995, twenty-six states had enacted some form of statute barring subsequent prosecutions. Bollinger, Defending dual prosecutions: Learning how to draw the line, 10 Crim Just 16, 18 (Fall, 1995).

A

In enacting MCL 333.7409; MSA 14.15(7409) the Legislature was not codifying the rule set forth in People v Cooper, supra, as can be seen by the significant differences between the statute and case law. Cooper applies to all criminal offenses, while § 7409 concerns only controlled substances. Cooper allows for dual prosecution when the state’s interest is not protected by the federal prosecution, while § 7409, by contrast, is a complete bar to dual prosecution.

B

We would hold that the defendants bear the burden both of production and persuasion to prevail on their argument that the statute applies to bar a second prosecution. As a general rule, this Court has the power to allocate the burden of proof. People v D’Angelo, 401 Mich 167, 182; 257 NW2d 655 (1977). Because the statute does not state who shall bear the burden of proof, we are free to assign it as we see fit, as long as we do not transgress the constitutional requirement that we not place on the defendant the burden of persuasion to negate an element of the crime. Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977); People v Pegenau, 447 Mich 278, 317; 523 NW2d 325 (1994) (Boyle, J., concurring in the result). This statutory exclusion does not call into question defendant’s guilt or innocence. The defendant is alleging that he should be insulated from prosecution regardless of whether he is guilty. MCL 333.7531; MSA 14.15(7531) provides:

It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it.

As in People v Pegenau, supra, defendant is attempting to establish an exemption or exception to a controlled substances offense. In this situation, the presence of a conviction or acquittal under federal law or the law of another state for the same act is analogous to an affirmative defense. Id. at 289. Thus, it is appropriate to place the burden of proof by a preponderance of the evidence on the defendant. See D’Angelo, supra at 182.¹⁵

C

We are asked to determine whether the statute prohibits the state’s prosecution of defendants. The key phrase in § 7409 is “the same act.” In this, the statute differs from the United States and Michigan Constitutions, both of which discuss the same offense.

New Jersey has an almost identical statute,¹⁶ which was applied in State v Ableman, 72 NJ 145; 368 A2d 356 (1977). In that case the defendant had been convicted in federal court of conspiracy to distribute and to possess with intent to distribute hashish, and of possession with intent to distribute hashish. The issue presented to the court was whether the statute barred subsequent state prosecution of a charge of unlawful distribution of hashish. As explained in the concurring opinion, the court ruled that “where a defendant involved in a large-scale operation of illegal drug traffic pleads guilty of possession with intent to distribute a great quantity of narcotics in a federal court located in a foreign state, [the statute] does not stand as a bar to a State prosecution for distribution of a portion of those narcotics.” Id. at 151 (Pashman, J., concurring in the result).

The gist of the crime of conspiracy is the agreement of the conspirators to commit one or more unlawful acts, where one or more of the conspirators do “any act to effect the object of the conspiracy.” Braverman v United States, 317 US 49, 53; 63 S Ct 99; 87 L Ed 23 (1942). In order to determine what the extent of the agreement is, so that we may determine whether there are two conspiracies or only one, we will use the same “totality of the circumstances” test used in constitutional double jeopardy analysis. This test includes the following factors: 1) time, 2) persons acting as coconspirators, 3) the statutory offenses charged in the indictments, 4) the overt acts charged by the government or any other description of the offenses charged that indicate the nature and scope of the activity that the government sought to punish in each case, and 5) places where the events alleged as part of the conspiracy took place. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement each with a separate object. United States v Thomas, supra.

Because this is the first time this Court has addressed the burden of proof for MCL 333.7409; MSA 14.15(7409), and the lower courts did not fully address the applicability of the statute, we remand to allow the trial court to hold any further proceedings necessary and make a determination of whether there were multiple conspiracies.

v

Defendant Hermiz argues that in his rebuttal at closing arguments the prosecution improperly vouched for the credibility of its witnesses. Defendant objected to this argument at trial. The trial judge merely noted defendant’s objection and did not give corrective instructions. Although we agree that the prosecutor’s conduct was improper, we would affirm Hermiz’ conviction because we find the misconduct to be harmless. Review of the record convinces us that the error had only slight or negligible influence on the verdict. Therefore, the error was harmless. People v Mateo, 453 Mich 203, 221; 551 NW2d 891 (1996).

CONCLUSION

We would affirm in part the opinion of the Court of Appeals affirming defendant Hermiz’ conviction, reverse the Court of Appeals opinion vacating defendant Mezy’s conviction, and remand for further proceedings. We do not retain jurisdiction.

Boyle and Riley, JJ., concurred with Weaver, J.

Footnotes

1

207 Mich App 449; 526 NW2d 1 (1994).

2

450 Mich 871 (1995).

3

21 USC 841(a)(1) provides:

(a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ....

4

18 USC 1956(a)(2)(B)(ii) provided:

Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States—

(B) knowing that the monetary instrument or funds involved in the transportation represent the proceeds of some form of unlawful activity and knowing that such transportation is designed in whole or in part—

(ii) to avoid a transaction reporting requirement under State or Federal law,

shall be sentenced to a fine of $500,000 or twice the value of the monetary instrument or funds involved in the transportation, whichever is greater, or imprisonment for not more than twenty years, or both.

5

MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i) provides:

A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug described in section 7214(a)(iv) and:

(i) Which is in an amount of 650 grains or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life.

6

208 Mich App 545; 528 NW2d 783 (1995).

7

450 Mich 871 (1995).

8

Of course, a defendant could bring a claim that this newly charged offense violated the terms of his plea agreement. Rivera-Feliciano, supra at 952, n 1. However, such an argument would be of no avail for Mezy in this case because he entered his plea agreement with the United States and cannot then ask that this agreement prevent the State of Michigan, not a party to the agreement, from prosecuting him.

9

The dissent suggests that the Federal District Court for the Eastern District of Michigan may have dismissed the drug conspiracy charges “with prejudice” when it accepted Mezy’s plea of guilty on money laundering. See post at 305. There is no support in the record for this assertion. Even if this were true, this would not assist Mezy because a dismissal with prejudice is not an “acquittal” under § 7409, and under Gamer, supra, double jeopardy does not attach to charges dismissed with prejudice. Dismissal “with prejudice” is only an acquittal for double jeop ardy purposes “ ‘when the ruling of the judge, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged’ . . . United States v Lindsey, 310 US App DC 300, 304; 47 F3d 440, 444 (1995), quoting United States v Scott, 437 US 82, 97; 98 S Ct 2187; 57 L Ed 2d 65 (1978).

10

Defendant Schinnell illegally withdrew funds from her employer’s bank accounts for personal use. The government instituted and completed administrative forfeiture proceedings pursuant to 18 USC 981(a)(1)(C), which Schinnell did not contest. Subsequently Schinnell entered a conditional plea of guilty to wire fraud, reserving her right to appeal on double jeopardy grounds on the basis of her prior administrative forfeiture. The district court denied her motion to dismiss the indictment because it found that she did not show how the forfeiture action had in some manner placed her twice in jeopardy for a criminal offense. Schinnell appealed, arguing that the district court erred in allocating the burden of proof to the defendant on the double jeopardy issue. The United States Court of Appeals for the Fifth Circuit found that the correct standard was to make “the defendant bear[ ] the initial burden of establishing a prima facie nonfrivolous claim of double jeopardy, after which the burden shifts to the government to demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution,” citing United States v Deshaw, 974 F2d 667, 670 (CA 5, 1992).

11

As this Court noted in Cooper, Illova was subsequently overruled by In re Carey, 372 Mich 378, 381; 126 NW2d 727 (1964), to the extent that it disagreed with Carey’s holding that “where a defendant has been sentenced in Federal court, and is subsequently sentenced in a State court or courts, sentence may not be imposed to commence at the completion or expiration of Federal sentence, in the absence of statutory authority.” However, there is no reason to suppose that Illova was not an accurate expression of the state of the case law on double jeopardy at the time of the Constitutional Convention, which is the relevant issue for our purposes.

12

We note that in 1976 this was a very plausible position. “Scholarly analysis of the dual sovereignty exception was almost uniformly critical, and the decisions described above [Elkins v United States, 364 US 206; 80 S Ct 1437; 4 L Ed 2d 1669 (1960), and Murphy v Waterfront Comm of New York Harbor, 378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964)] suggest that the Court was moving in the same direction as the commentators. Indeed, the general thrust of the decisions of the 1960’s led at least one commentator to suggest that the Supreme Court might well abandon the dual sovereignty exception.” Murchison, The dual sovereignty exception to double jeopardy, 14 NYU R Law & Social Change 383, 419 (1986).

13

Although the United States Supreme Court’s treatment of the rational underpinnings of Bartkus leads us to question seriously its current vitality, it has not been expressly overruled. Therefore, we have preferred to rest the decision on our state constitution. In doing so, we have, appropriately, “assign[ed] proper weight to opposing interests and give[n] some consideration to public policy.” [Cooper, supra at 461.]

14

The majority of states hold that both the United States and their own constitutions allow for dual prosecutions by the state and federal governments. Nance v State, 123 Ga App 410; 181 SE2d 295 (1971), Hall v Commonwealth, 197 Ky 179; 246 SW 441 (1923), State v Castonguay, 240 A2d 747 (Me, 1968), Bankston v State, 236 So 2d 757 (Miss, 1970), State v Turley, 518 SW2d 207 (Mo App, 1974), State v Pope, 190 Neb 689; 211 NW2d 923 (1973), State v Cooper, 54 NJ 330; 255 A2d 232 (1969), and Breedlove v State, 470 SW2d 880 (Tex Crim App, 1971). Others rely on the federal constitution or merely cite Bartkus for the principle of dual sovereignty. State v Duncan, 221 Ark 681; 255 SW2d 430 (1953), State v Tiche, 33 Conn Supp 51; 360 A2d 135 (1976), Richardson v State, 163 Ind App 222; 323 NE2d 291 (1975), Bell v State, 22 Md App 496; 323 A2d 677 (1974), Crane v State, 92 Nev 593; 555 P2d 845 (1976), State v Fletcher, 26 Ohio St 2d 221; 271 NE2d 567 (1971), Beard v State, 485 SW2d 882 (Tenn, 1972), and State ex rel Cullen v Ceci, 45 Wis 2d 432; 173 NW2d 175 (1970). But see, contra, State v Hogg, 118 NH 262; 385 A2d 844 (1978), and Commonwealth v Mills, 447 Pa 163; 286 A2d 638 (1971).

15

In People v D’Angelo, this Court allocated the burden of proof for showing the defense of entrapment to the defendant.

16

NJ Stat Ann 24:21-25 provides in part:

In any case where a violation of this act (Uniform Drug Act) is violation of a Federal law or the law of any state, the conviction or acquittal under Federal law or the law of another state for the same act is a bar to prosecution in this State.