Contemplating the Successive Prosecution Phenomenon in the Federal System

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I. Introduction

The federal system presents a peculiarly complex successive prosecution problem. The decentralized nature of the federal prosecution effort and the intricate interstate character of federal crimes may conspire to, produce a series of related prosecutions arising from a common factual nucleus. Consider, for example, the procedural history of United States v. Koonce.(1) After mailing a package of methamphetamine to a government informant in South Dakota, Koonce was arrested at his home in Utah where authorities discovered firearms and additional quantities of drugs.(2) He was convicted on federal drug distribution charges in South Dakota and received a twenyt-year sentence which included enhancements for both the drugs and guns confiscated in Utah.(3)

Apparently unsatisfied with the result, the United States convened a second grand jury, this time in Utah, to consider the same drug activity. The subsequent indictment charged Koonce with possession with intent to distribute methamphetamine and with the illegal possession of firearms.4 Under the Federal Sentencing Guidelines,(5) conviction on the distribution count could yield only a concurrent sentence, while a conviction on the gun charge could add five years to an already extensive prison term.(6)

Though all three offenses could legally have been prosecuted in Utah,(7) the two United States Attorneys involved declined to consolidate the prosecution. Neither the double jeopardy clause nor federal statute required joinder, and splitting the case allowed both districts to take credit for the investigation and prosecution. Yet, federal tax dollars supported two grand juries, numerous prosecutors and federal defenders, and lengthy court proceedings.

The Koonce case provides a relatively clean example of piecemeal prosecution,(8) which this Article defines as the successive prosecution of legally distinct offenses premised upon the same set of factual circumstances. Although the decision to split the Koonce prosecution appears to have been "politically" motivated, other factors such as venue problems, investigative difficulties, and offense complexity more likely explain the bulk of piecemeal prosecution in the federal system. The frequency with which federal prosecutors engage in piecemeal prosecution is unclear. In today's climate, however, even limited multi-district reprosecution may be an unaffordable luxury. The ever-expanding criminal docket is rapidly crowding out legitimate civil litigation,(9) overloading prosecutors and defenders, and stretching the federal bench to the limit.

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule.(10) The dialogue has centered on the meaning of the "same offence" language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged.(11) Recently, however, the Supreme Court, in United States v. Dixon,(12) abandoned as "unworkable" a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.(13)

The Court is unlikely to embrace anything approaching a transaction-based offense definition in the near future.(14) Thus, it may be worthwhile to refocus the discussion away from constitutional definitions and purposes, and toward a meaningful policy analysis. Talking about successive prosecution in terms of costs and benefits has an advantage over constitutional debate. Instead of beginning with the Double Jeopardy Clause and fashioning a consistently applied rule to protect its purposes, this approach accounts for special problems created by increasingly complex federal prosecutions, concerns about efficiency, and fears that justice might suffer under a compulsory joinder regime.

This Article revisits the "transaction" rule debate in the context of a hypothetical statutory joinder requirement for the federal system.(15) Section II considers the sources of repeat prosecution in the federal arena, the impact of the Federal Sentencing Guidelines on prosecutorial charging behavior, and the costs traditionally attributed to successive prosecution. Section III examines the arguments in favor of and against a statutorily-imposed compulsory joinder approach, questioning whether either the definitional uncertainties of a transaction rule or the political benefits of the current approach are worth the individual and systemic costs inherent in an unchecked reprosecution power. Section IV offers preliminary observations on issues that must be resolved if compulsory joinder of any variety is to succeed in the federal environment.

Two points require clarification. First, this Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is necessary to determine the absolute dollar costs of repeat prosecution, this Article concentrates on the opportunities to abuse power that the current approach leaves open to federal prosecutors. In addition, this Article does not precisely define the "transaction rule." The purpose of this Article is not to offer yet another definition of the criminal transaction, but to explore the implications of imposing any compulsory joinder requirement on the federal system. Thus, the "transaction rule" discussed herein generically denotes a factually-driven joinder requirement that might range in scope from the conduct formula embraced in Grady v. Corbin(16) to a sweeping mandate that prosecutors include all joinable offenses "which substantially overlap" in a single indictment.(17)

II. Redundant Prosecution in the Federal System

The federal criminal justice system operates with few limits on duplicative litigation. Although the Double Jeopardy Clause prohibits reprosecution of the "same offence," the successive prosecution protection is extremely narrow.(18) As long as "each offense contains an element not contained in the other"(19) separate prosecutions of the factually related offenses are constitutionally acceptable. This approach concentrates on the statutory offense rather than the underlying factual scenario. Thus, a single sale of drugs may constitutionally give rise to a series of federal prosecutions for offenses ranging from distributing drugs within one hundred feet of a video arcade facility(20) and using a telephone in connection with a drug transaction,(21) to knowingly providing drugs to a pregnant woman.(22) And the proliferation of federal statutes criminalizing all aspects of a single course of conduct has only exacerbated the potential for duplicative prosecution.(23)

No federal statutory or judicially created mechanism supplements the double jeopardy protection. The Federal Rules of Criminal Procedure permit liberal joinder of offenses,(24) but do not require joinder in any instance. Nor have the federal courts embraced a common law or prudential compulsory joinder requirement beyond that which the Double Jeopardy Clause provides.

The only significant constraint on reprosecution in the federal system comes from an internal Justice Department policy which officially discourages more than one prosecution based on "the same act, acts or transaction."(25) Section 9-2.142 of the United States Attorney's Manual sets forth the "Dual Prosecution and Successive Federal Prosecution Policies" of the Department of Justice.(26) Often referred to as the Petite Policy because it was first announced in Petite v. United States,(27) Section 9-2.142,theoretically limits federal prosecutors in the exercise of their discretion to initiate prosecution of federal crimes.(28) It prohibits successive prosecutions in the absence of a "compelling federal interest."(29) In addition, the policy forbids a district from initiating a subsequent prosecution in the absence of express authorization from an Assistant Attorney General.30 To obtain such authorization, the district must generally submit proof that the prior "proceeding left substantial federal interests demonstrably unvindicated" and that the proposed prosecution will likely yield a more extensive sentence.(31)

Although the Petite Policy appears to have substantial bite, the scope of the interests considered potentially compelling' and the wide range of instances which warrant reprosecution leave the federal reprosecution power almost entirely intact. The policy requires identification of "substantial federal interests" on a case-by-case basis, yet goes on to state that "cases coming within priority areas of the Department such as civil rights cases, organized crime cases, tax cases, firearms cases, and cases involving crimes against federal officials, witnesses or informants - are, of course more likely to meet the compelling federal interest requirement."(32) The policy also recognizes that a "subsequent prosecution may ... be warranted where substantial basis for believing that" prosecutorial, judicial, or jury actions in the initial proceeding were affected by any of the following: "incompetence, corruption, intimidation, undue influence," judicial or "jury nullification," or the unavailability of evidence "either because it was not timely discovered or because it was suppressed on an erroneous view of the law."(33) Perhaps most importantly, the policy does not preclude reprosecution of charges that could not have been included in the original prosecution,34 such as closely connected crimes excluded from the first indictment on venue grounds. Thus, the Petite Doctrine has only limited applicability to classic multi-venue situations, to a vast array of priority prosecutions such as drugs and firearms, and to cases in which the Department of justice questions the wisdom or accuracy of a prior verdict or sentence.35

A. SOURCES OF REPEAT PROSECUTION IN THE FEDERAL SYSTEM

Successive prosecution in the federal system(36) is probably best described as an inter-district rather than intra-district phenomenon. Both the Petite Policy and resource allocation decisions likely discourage intra-district reprosecution. Particularly in cases ending in acquittal, a single district has little incentive to rededicate resources(37) to a second prosecution which may yield the same result as the first prosecution. Moreover, prosecutors in a particular district consistently appear before the same judges. The relationship between the federal judiciary and the U.S. Attorneys' Offices is an important one, and the bench, understandably, is hostile to the use of precious judicial resources to rehash events already litigated.

On an inter-district level, however, the structure of the federal prosecution effort may encourage duplicative litigation. The next several subsections consider the characteristics which seem most likely to generate redundant prosecution.

1. The Structure of the Federal Prosecution Effort

The federal approach to criminal prosecution is decidedly decentralized. Though this structure ideally produces a prosecution strategy responsive to articular concerns of a given district,(38) it may exacerbate existing tendencies for repeat prosecution. United States Attorneys have traditionally operated with almost complete autonomy.(39) Even today the Justice Department rarely interferes in the charging decisions of local offices.(40) For the most part, the local offices initiate investigations and pursue prosecutions with little if any central oversight.(41) Thus, if prosecuting a particular offense is consistent tent with district goals, the fact that the United States has elsewhere prosecuted the defendant for a related offense may be of little interest.

The justice Department's emphasis on objective indicia of productivity probably contributes more to any successive prosecution problem than does the sheer number of United States Attorney's offices.(42) Productivity in prosecutor-speak means convictions, and the Department of Justice requires offices to report overall prosecution and conviction information.(43) Although the statistics have no official significance, the Department of Justice publishes them and undoubtedly considers them in assessing the budgetary needs of its offices.(44) The quality of the convictions may therefore matter less than the quantity; it does not appear that a central authority at the Department of Justice determines whether reported convictions involve defendants already prosecuted in another district.(45) Because a defendant already convicted of a related offense is a much easier plea bargain target,(46) a subsequent prosecution may be a reasonably easy way to increase productivity.(47)

In addition, the emphasis on statistics may encourage districts to divide up the prosecution of related offenses.(48) In coordinated investigations the prosecutors, as well as the DEA and FBI agents on whom they depend, need to obtain "credit" for the resources expended on the investigation.(49) Equitably splitting the prosecutorial duties between cooperating districts ensures that they receive the appropriate credit and that their personal efforts are recognized.(50)

Political forces also play a role in the successive prosecution puzzle. More than one United States Attorney has harbored political ambitions.(51) High-profile prosecutions provide a unique and generally positive opportunity to gain public recognition. Though incentives to reprosecute for political gain arise only occasionally, the temptation may be substantial. This phenomenon is not restricted to the multi-district reprosecution scenario; the desire to appear "tough on crime" may also invite this sort of resource allocation in a single office.

2. Venue

Because federal offenses target interstate criminal activity, the prosecution often confronts joinder problems generated by constitutional venue requirements.(52) Article III and the Sixth Amendment right to jury trial(53) limit the trial to the state in which the offense occurred(54) and specifically guarantee the accused a jury drawn from the district in which the crime was committed.(55) And unlike many procedural prerequisites to trial, courts do not presume that venue is correct;(56) the prosecution must prove it at trial.(57) Thus, even where Rule 8 of the Federal Rules of Criminal Procedure permits consolidation, constitutional venue problems may force offense splitting.(58)

Although a defendant may waive venue, and there is no legal impediment to joining an offense for which venue is lacking in a single indictment,(59) the incentive to coordinate with another district in this manner may be low. The threat of prosecution in another district is an excellent way to coerce the recalcitrant defendant into a plea agreement. Moreover, the joinder of offenses for which venue is lacking may be considered poaching in light of the conviction rate consciousness discussed above.(60) And including counts for which venue is absent may be risky. Although the federal courts have generally held that when venue is patently absent, the defendant's failure to object before trial constitutes waiver,(61) even this standard requires the government to proceed somewhat uncertainly, never knowing, if the defendant will object at the eleventh hour, resulting in a waste of valuable time spent in trial preparation.(62)

3. Nature of Federal Crimes

The increasingly intricate character of federal offenses, such as RICO and Conspiracy, also generates a certain degree of redundancy. Conspiracy prosecutions, although not involving a technically "complex" offense, often produce a series of related prosecutions.(63) Jury confusion inherent in the multi-defendant nature of the conspiracy prosecution often militates against joining related conspiracies and the underlying substantive offenses, particularly when many defendants have unrelated substantive offenses alleged against them. Yet, a second prosecution rehashes much of the factual information reviewed in the initial prosecution.

The successive prosecution problems in the RICO(64) context are more extreme than those generated by conspiracy actions. RICO "charges are generally based on allegations of criminal behavior extending over long periods of time, sometimes occurring in locations distant from one another and involving a long cast of criminal actors."(65) The pattern of racketeering must be based upon specific predicate acts supported by proof beyond a reasonable doubt.(66) A RICO investigation may spawn a dizzying sequence of prosecutions. For example, according to Professor George Thomas, a defendant who "conspires to take over a legitimate business that engages in interstate commerce" by committing a robbery, an extortion, an act of bribery, and an act of mail fraud could be charged with at least nine separate offenses, and subjected to seven consecutive trials.(67)

4. Newly Discovered Evidence

Newly discovered evidence often explains a subsequent prosecution based upon facts already litigated. Though the explanation is by no means unique to the federal system, both the sheer size of the system and the local character of the investigations may exacerbate the extent to which new evidence accounts for subsequent prosecutions. When ninety-four districts(68) are independently assessing the strength of evidence for internal prosecution decisions, evidence related to a prosecution in another district may be overlooked. Although FBI and DEA agents, as well as Assistant United States Attorneys (AUSAs), often coordinate their investigations, the significance of particular information may not be immediately obvious. Moreover, subsequent decisions by witnesses to cooperate likely account for much new evidence. And such cooperation may hinge upon a grant of immunity(69) or a favorable plea bargain, which may, in turn, depend upon prosecution decisions in another district.

5. Executive Enforcement Priorities

In some situations, the executive may make a conscious choice to embrace a successive prosecution strategy. Consider, for example, the justice Department's deliberate abuse of the successive prosecution power as part of its campaign against obscenity. After the publication of the Report of the Attorney General's Commission on Pornography,(70) the Justice Department officially designated obscenity prosecutions a major priority(7l) and formed the National Obscenity Enforcement Unit (NOEU).(72) Obscenity prosecutions were formally exempted from the Petite Policy,(73) and the NOEU actively pursued prosecutions in multiple districts to coerce guilty pleas and bankrupt defendants.(74) Such a `strategy in pornography enforcement is especially tempting because the federal obscenity laws treat every delivery of obscene material as a separate offense.(75) In cases involving national publications, prosecutions are theoretically possible in every district.

This strategy is easy to export to other enforcement initiatives. It is possible to dissect many crimes involving the use of the mails or transportation in interstate commerce into an alarming number of individual offenses. The general federal venue statute allows prosecution of such offenses "in any district from, through, or into which such commerce or mail matter moves,"(76) thus vesting in the executive the ability to use a successive prosecution strategy in a variety of circumstances.

6. Inadequate Punishment

A major incentive to reinitiate a prosecution in any system is the belief that the defendant has been inadequately punished. The Petite Policy specifically notes that a second prosecution might be warranted if a "substantial basis" exists for believing that prosecutorial incompetence, or judge or jury nullification affected the verdict or the "severity of the sentence."(77) Thus, reprosecution remains a viable option to the federal prosecutor who feels that the defendant's punishment was insufficient.

B. THE RELATIONSHIP OF THE FEDERAL SENTENCING GUIDELINES TO THE SUCCESSIVE PROSECUTION PUZZLE

The Federal Sentencing Guidelines should theoretically reduce the number of repeat prosecutions in the federal system. The Guidelines embrace a modified real offense scheme, which allows the court to punish a defendant for related, but unadjudicated crimes at sentencing.(78) For example, under the Guidelines' relevant conduct provision,(79) a defendant convicted on one count and acquitted on another count may often be sentenced as if convicted on both counts.(80) The real offense approach thus allows the prosecutor to repair inadequacies in either the indictment(81) or trial presentation at the sentencing stage. In cases where the government is disappointed in the original verdict or has discovered additional evidence of a related, but uncharged crime, the Guidelines should reduce the incentives to pursue a second indictment.

Even if the government considers the ultimate sentence inadequate, in many cases the Guidelines will deter a second prosecution because the subsequent sentence is likely to be concurrent.(82) The Sentencing Commission sought to prevent prosecutors from manipulating sentence length by either dismissing or adding related counts, or by fragmenting the prosecution of counts into several proceedings.(83) In cases in which a district pursues a subsequent indictment for offenses already accounted for as relevant conduct in an earlier sentencing proceeding, the Guidelines eliminate the ability to increase the defendant's sentence length through the second prosecution.

However, not all related offense prosecutions yield concurrent sentences. The proliferation of offenses carrying consecutive mandatory minimum sentences have consistently undermined the uniformity goals of the Sentencing Commission.(84) In cases where the offense carrying the mandatory minimum is not charged in the initial prosecution, the lure of a significantly longer prison term may legitimize a second prosecution. In addition, related offenses that are either excluded by the Guidelines from the sentencing inquiry(85) or are accounted for in a way other than through a relevant conduct enhancement(86) will draw a consecutive sentence if prosecuted separately.

Similarly, if the subsequent indictment is returned for political' reasons,(87) the existence of the Guidelines may increase the likelihood of a second indictment.(88) At the sentencing proceeding following the original conviction, the prosecutor may offer evidence of related criminal acts pursuant to the relevant conduct provision. If the government pursues a subsequent prosecution based upon the crimes already accounted for in the first sentence, the defendant will have little incentive to resist the second indictment. As noted, the sentence for a conviction in the second prosecution will run concurrently to the first. Thus, the defendant loses little by pleading guilty. And even if the defendant insists upon a trial, the government's job is made simpler by the first conviction. The prosecution will have obtained a preview of the defendant's defense at the original sentencing proceeding.(89) In addition, the defendant is unlikely to take the stand because the prosecutor may use the related conviction to impeach his testimony. Thus, for districts seeking to improve their conviction statistics or public image, the Guidelines may actually encourage successive prosecution.

The Guidelines are not the panacea for the federal successive prosecution problem. Although the Guidelines may eliminate some incentives for reprosecution in the federal system, substantial pressures favoring piecemeal litigation remain. Regardless of the legitimacy of these pressures, the costs associated with duplicative prosecution are potentially high. The next section examines the costs traditionally associated with successive prosecution.

C. POTENTIAL COSTS OF UNRESTRICTED REPROSECUTION

A number of commentators have questioned whether the criminal system might benefit from the civil system's approach to the successive litigation problem.(90) Duplicative litigation in the civil system is dealt with quite ruthlessly under the common law doctrine of res judicata, or claim preclusion.(91) Civil litigants receive one opportunity to settle disputes arising from a particular factual scenario. After the initial judgement, claim preclusion, or more specifically the rule against splitting,(92) bars any further attempt to litigate events arising from a common nucleus of operative fact.(93) The rule extends to litigated and unlitigated claims regardless of merit or legal theory. Plaintiffs omit weak, yet potentially viable claims at their peril.

Claim preclusion furthers both individual and systemic interests by "encourag[ing] reliance on judicial decision, [barring] vexatious litigation and [freeing] the courts to resolve other disputes."(94) By insisting that litigants resolve related disputes in a single proceeding, claim preclusion protects the limited resources of the courts. Efficiency is at a premium; 1'every dispute that is reheard means that another will be delayed."(95) Res judicata protects the individual from harassment by allowing dispute resolution to be final. Lastly, claim preclusion avoids the inevitable diminution in public confidence that accompanies inconsistent judicial pronouncements. As Professors Friedenthal, Kane, and Miller observe, 'since there is no reason to suppose that the second or third determination of a claim is necessarily more accurate than the first, the first should be left undisturbed."(96)

The costs of unrestricted reprosecution both on a systemic and individual level are of potentially greater significance in the criminal system than in the civil system. The current approach leaves the defendant vulnerable to debilitating government harassment.(97) …