June 11, 2014 By Paul Wallin

Is it Double Jeopardy to Charge a Crime at both the State and Federal Level?

“Double Jeopardy” is a protected right guaranteed by the Fifth Amendment to the United States Constitution and the California Constitution. It means that you cannot be prosecuted twice for the same crime. However, the concept of double jeopardy is not well understood.

double jeopardy federal level
Is it double jeopardy to charge you at state and federal levels?

Many people believe that once you’ve been tried and acquitted upon the circumstances leading up to a particular criminal charge, any government is forever barred from prosecuting you as well for the same crime arising from that same set of circumstances. That is not necessarily true.

It all depends on what government is bringing the charges. While it is true that the state cannot retry a person for murder (for example), once he or she has been found not guilty by a jury, double jeopardy does not mean that the federal government is forbidden from bringing its own murder prosecution provided the person violated both state and the federal laws.

A recent case out of Utah illustrates this example of a legal concept known as “dual sovereignty.”

The Case of Roberto Miramontes Roman

Roberto Miramontes Roman is a Mexican citizen who is facing charges of killing an on-duty county sheriff’s deputy from the state of Utah while attempting to evade arrrest.

Roman allegedly initially confessed to killing deputy Josie Greathouse Fox after she pulled over his vehicle. He later recanted, claiming another man — the deputy’s brother — shot and killed her. Deputies had been tailing the two for several hours as part of an on-going drug trafficking investigation.

The state of Utah prosecuted Roman for the first-degree murder of a peace officer. Unconvinced beyond a reasonable doubt, the state jury eventually acquitted Roman of the aggravated murder charge.

However, the U.S. government later charged Roman with intentionally killing a local law enforcement officer working with federal law enforcement while fleeing apprehension on a felony drug violation, a federal offense under 18 U.S.C. section 1121.

Roman’s attorney argues that the U.S. government wants a “do-over” for what it believes a state jury got wrong the first time.

“Only by eliminating the dual sovereignty exception can courts remain faithful to the ideals of the Constitution,” Roman’s attorney wrote in a motion to dismiss the charges. “And only in a Kafkaesque creation could a jury’s verdict suffice to execute Roman but not be enough to exonerate him.”

The U.S. attorney bringing charges against Roman said the federal prosecution does not amount to “double jeopardy,” nor is it a do-over of the case, but rather the indictment was an indication that federal interests were not resolved in state court proceedings against Roman.

“The state government and the federal government are always free to pursue their own prosecutions,” the U.S. attorney said.

Is it Double Jeopardy to Charge a Crime at Both the State and Federal Level?

No. Double jeopardy and “dual sovereignty” are completely different concepts. Nothing prevents competing state and federal agencies from bringing similar criminal charges arising out of the same act against a single defendant so long as a crime can be charged at both the state and federal level.

Double jeopardy only applies to one jurisdiction at a time. A state government cannot bring a second prosecution against you for the same state crime once you’ve been acquitted. The same goes for the federal government regarding a federal offense.

What Does “Dual Sovereignty” Mean?

The concept of dual sovereignty means the federal and state governments may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.

If murder is committed within the borders of a state, that state has jurisdiction. If the victim is a federal or foreign official, or if the crime took place on federal property or involved crossing state lines, or in a manner that substantially affects interstate commerce or national security, the federal government also has jurisdiction.

In the above example, the Utah sheriff’s deputy was assisting a federal investigation of drug trafficking by providing local surveillance of the suspect eventually charged with her murder. She was murdered in the state of Utah, so Utah maintains jurisdiction.

However, since it is a separate federal offense to intentionally kill a local officer assisting in a federal investigation, the U.S. government also retains jurisdiction. Thus, the suspect can be prosecuted in both a state murder case and a federal murder case.

Does it Matter if You’ve Already Been Prosecuted By Either the State or the Federal Government?

federal court
You can be prosecuted for a state offense then stand trial for the same act in federal court.

It doesn’t matter whether you’ve already been prosecuted by one jurisdiction, nor does the outcome matter. You can be prosecuted in state court for the state offense and then stand trial for the same act in a federal court if it is also a federal offense. If you are convicted in both jurisdictions, you can be punished by both courts.

This doesn’t happen very often when the first jurisdiction convicts you and the resulting sentence is death or life in prison, as is the punishment for first-degree murder. There isn’t much point in the other jurisdiction prosecuting you since the punishment upon conviction is generally the same.

However, as this recent example from Utah demonstrates, just because one government fails to convict you where dual sovereignty applies, doesn’t mean the other government can’t try. It’s not a “do-over.” It’s not “double jeopardy.” It’s perfectly legal.

Contact Wallin & Klarich Today About Your State or Federal Charges

If you or someone you care about is facing pending charges in either state or federal court, you should contact an attorney at Wallin & Klarich right away. At Wallin & Klarich, our attorneys have over 40 years of experience successfully defending clients facing criminal charges at both the state and federal level.

We can work with prosecutors in competing courts to make certain you receive fair treatment throughout the process. By thoroughly examining every aspect of the case, we may be able to argue that some or all of the charges against you should be reduced or dismissed altogether.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our experienced criminal defense attorneys at Wallin & Klarich will protect your constitutional rights no matter where your criminal case takes place. We will help you get the best possible outcome in your case.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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