Saturday, August 1, 2015

A Second Bite at the Apple

From David -- 

A question sometimes raised by our clients is whether the United States may prosecute them for offenses for which they have already been convicted (or acquitted) in state court, or another federal district court. The short, but very unsatisfactory answer, is usually “yes.” While Congress has specifically prohibited subsequent federal prosecutions after a state prosecution in a limited number of statutes (see 18 U.S.C. §§ 659, 660, 2101, 2117, 15 U.S.C. § 80a-36, 49 U.S.C. § 80501)), the Dual Sovereign Doctrine otherwise does not prevent a subsequent federal prosecution.

The Tenth Circuit recently provided a succinct summary of why successive federal prosecutions are generally permissible in United States v. Roberto Miramontes Roman.

There are some limits on successive prosecutions provided by the Petite Policy (see Petite v. United States, 361 U.S. 529 (1960), which generally prohibits a federal prosecution for acts prosecuted in another court, absent compelling federal interests. The Supreme Court discussed the Petite policy in Rinaldi v. United States, 434 U.S. 22 (1977). The Department of Justice has repeatedly declared that the Petite policy does not confer any rights to a criminal defendant. See, United States Attorney’s Manual, Title 9, Section 9-2.031, available online here.


Unlike federal law, Kansas law generally prohibits a subsequent prosecution in state court if a person has already been prosecuted for the same crime, based on the same facts if there was a conviction or acquittal. The Kansas prohibition on successive prosecution is not without limits. See, K.S.A. § 21-5110 (formerly K.S.A. §21-3108 before the 2011 re-codification of the Kansas Criminal Code); and State v. Fillman, 43 Kan.App.2d 244 (2010).

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