Contemplating the Successive Prosecution Phenomenon in the Federal System

By Lear, Elizabeth T. | Journal of Criminal Law and Criminology, Winter 1995 | Go to article overview
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Contemplating the Successive Prosecution Phenomenon in the Federal System

Lear, Elizabeth T., Journal of Criminal Law and Criminology

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.

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