Contemplating the successive prosecution phenomenon in the federal system.

• Author: Lear, Elizabeth T.

1. 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)

2. 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

   1. SOURCES OF REPEAT PROSECUTION IN THE FEDERAL SYSTEM

      Successive prosecution in the federal system(36) is probably best described as...