United States v. Dominguez

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 United States v. Dominguez No. 02-2081

ELECTRONIC CITATION: 2004 FED App. 0069P (6th Cir.)

File Name: 04a0069p.06 Richard D. Korn, Detroit, Michigan, for Appellee.

ON BRIEF: David J. Debold, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellant.

UNITED STATES COURT OF APPEALS Richard D. Korn, Detroit, Michigan, for Appellee.

FOR THE SIXTH CIRCUIT _________________

_________________

OPINION

UNITED STATES OF AMERICA , X _________________

Plaintiff-Appellant, -

- BOGGS, Chief Judge. The United States appeals from an

- No. 02-2081 interlocutory order in its prosecution against Edward

v. - Dominguez. The district court suppressed key evidence on

> the basis of issue preclusion because the same evidence had

, been suppressed in a previous Michigan state court

EDWARD DOMINGUEZ, -

Defendant-Appellee. - proceeding against Dominguez. Because the district court

misinterpreted applicable Michigan law, we REVERSE this

N order and remand for further proceedings consistent with our

Appeal from the United States District Court holdings.

for the Eastern District of Michigan at Ann Arbor.

No. 01-90030—Marianne O. Battani, District Judge. I

Argued: October 21, 2003 This case presents the interesting issue of what preclusive

force a Michigan state criminal proceeding may have upon

Decided and Filed: March 4, 2004 the course of a subsequent federal criminal proceeding. The

United States charges Dominguez with drug trafficking, under

Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Its case depends

and GWIN, District Judge.* largely upon evidence seized in Dominguez’s automobile

pursuant to a Michigan state search warrant. That warrant, in

_________________ turn, was issued based upon an affidavit setting forth the

report of a confidential informant that he had seen a kilogram

COUNSEL of cocaine stored in a secret compartment of an automobile

registered to Ruben Rodriguez, an alias for Dominguez.

ARGUED: David J. Debold, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellant. A joint state-federal task force, the Western Wayne

Interdiction Team, executed the search warrant and found

cocaine in the car (although not in a secret compartment).

The State of Michigan then brought state-law drug-trafficking

*

The Ho norable James S. Gwin, United States District Judge for the charges against Dominguez. The state trial court suppressed

No rthern D istrict of O hio, sitting by designation.

1

No. 02-2081 United States v. Dominguez 3 4 United States v. Dominguez No. 02-2081

all evidence obtained as a result of the search warrant, holding so there is no Michigan case law directly on point. This by

that the warrant had been obtained in violation of the Fourth itself does not prevent us from applying the Full Faith and

Amendment to the United States Constitution. The court then Credit Act. The Supreme Court resolved a similar issue in

dismissed the state charges against Dominguez without Marrese v. American Acad. of Orthopaedic Surgeons, 470

prejudice. Michigan did not appeal from that evidentiary U.S. 373 (1985), which directed the appellate court to look

ruling. first to the state law of preclusion in order to determine

whether a prior state court judgment precluded an antitrust

After the state case was dismissed, the United States claim within the exclusive jurisdiction of the federal courts.

brought this action based on federal-law charges similar to Only after making that determination would the federal court

those brought by Michigan in the prior state court action. consider whether the Full Faith and Credit Act should apply.

Dominguez again moved to suppress the evidence. The Marrese, 470 U.S. at 381-82. Because a state court could

district court granted his motion because it found that the never literally apply its preclusion rules to that particular

United States was collaterally estopped from litigating that claim, the federal court applies the state’s general preclusion

issue as a privy to the state of Michigan. The United States rules. Ibid. Marrese involved claim preclusion, but it relied

appeals. principally upon Kremer v. Chemical Const. Corp., 456 U.S.

461, 479 & n.20 (1982), which used the state law of issue

II preclusion. Ibid. This Circuit therefore understands Marrese

to require a federal court to look first to the rendering state’s

We review de novo a district court decision based on claim law of issue preclusion, even when the issue in question arises

or issue preclusion. Heyliger v. State Univ. & Cmty. Coll. in the context of a claim that is exclusively within federal

Sys. of Tenn., 126 F.3d 849, 851 (6th Cir. 1997). Our analysis jurisdiction. Kaufman v. BDO Seidman, 984 F.2d 182, 183-

begins with the Full Faith and Credit Act, 28 U.S.C. § 1738, 84 & n.5 (6th Cir. 1993).

which reads in relevant part: “[t]he records and judicial

proceedings of any court of any . . . State . . . shall have the Therefore, even though the Michigan courts could never

same full faith and credit in every court within the United literally confront our situation, we can and must resolve the

States . . . as they have by law or usage in the courts of [the Michigan law questions before asking whether some

state] from which they are taken.” Therefore, we must exception to the Full Faith and Credit Act may apply.

normally give a Michigan state court judgment “the same

preclusive effect as would be given that judgment under the III

law of the State.” Migra v. Warren City School Dist. Bd. of

Educ., 465 U.S. 75, 81 (1984). This rule applies to issues Under Michigan law, the party asserting preclusion bears

adjudicated in a state-court criminal proceeding. Allen v. the burden of proof. Detroit v. Qualls, 454 N.W.2d 374, 383

McCurry, 449 U.S. 90 (1980) (plaintiff cannot relitigate in (Mich. 1990). A court must apply issue preclusion when

federal civil rights action the issue of constitutionality of 1) the parties in both proceedings are the same or in privity,

search, adjudicated in his prior state criminal conviction). 2) there was a valid, final judgment in the first proceeding,

3) the same issue was actually litigated in the first proceeding,

Of course, a Michigan state court never could sit in 4) that issue was necessary to the judgment, and 5) the party

judgment over the prosecution of a federal crime, as 18 against whom preclusion is asserted (or its privy) had a full

U.S.C. §3231 creates exclusive federal criminal jurisdiction, and fair opportunity to litigate the issue. Michigan v. Gates,

No. 02-2081 United States v. Dominguez 5 6 United States v. Dominguez No. 02-2081

452 N.W.2d 627, 630-31 (Mich. 1990). The only one of these Privity between separate sovereigns is usually found only

factors in contention here is the first. The district court found after much factual analysis. See United States v. ITT

that Michigan law would treat the federal government Rayonier, 627 F.2d 996, 1003 (9th Cir. 1980) (state and

as“essentially the same party” as the State for these purposes. federal environmental agencies were in privity where they

We disagree. collaborated to grant and later revoke a license under joint-

authority statutory scheme); compare United States v. Power

The district court, and Dominguez, rely entirely upon In re Eng’g Co., 303 F.3d 1232, 1241 (10th Cir. 2002)

Forfeiture of $1,159,420, 486 N.W.2d 326 (Mich. Ct. App. (distinguishing facts and finding no privity). Michigan law

1992). There, the state of Michigan sought to seize property does not find privity between governmental units as a matter

from Robert Hawkins and his wife and minor children. In a of law. Quite the contrary, Gates emphasizes that such

prior federal criminal case against Hawkins for drug questions require “multifaceted analysis and balancing of

trafficking, a federal district court had upheld the validity of competing and vaguely defined governmental and private

a search warrant used to get evidence against him. In the state interests.” Id. at 630 n.12 (quoting Holland, Modernizing Res

forfeiture proceeding, the state relied on that same evidence. Judicata Reflections on the Parklane Doctrine, 55 Ind. L.J.

Although the parties were not identical on either side, the 615 , 618-19 (1980)). Michigan thus agrees with the modern

Michigan appellate court held that the defendants were view of collateral estoppel, that privity will be found only

collaterally estopped from contesting the validity of the upon consideration of the facts of a particular case. E.g.,

search warrant. In re Forfeiture, 486 N.W.2d at 333. The United States v. Bonilla-Romero, 836 F.2d 39, 43 (1st Cir.

privity requirement of Michigan’s preclusion test was 1987). In re Forfeiture itself is not to the contrary, although

satisfied because “the federal prosecution and the prosecution the district court apparently did not appreciate the

in this case are essentially the same party, albeit of different significance of the words “in this case [the prosecutors] are

governments.” Ibid. The district court concludes that essentially the same party.” In re Forfeiture, 486 N.W.2d at

Michigan law equates Michigan and federal prosecutors for 333 (emphasis added).

estoppel purposes. But this conclusion does not follow from

In re Forfeiture for several reasons. Nor are the facts of In re Forfeiture so like those before us

as to demand the same outcome. Unlike the second

To begin with, In re Forfeiture is an appellate-level prosecutor in that case, the United States is not an arguable

decision, so it can give us only limited guidance in emulating stranger to the dispute now seeking to assert issue preclusion;

the Michigan Supreme Court. See King v. Order of United rather, we are asked to apply issue preclusion against the

Commercial Travelers of America, 333 U.S. 153, 160-61 newcomer based upon a finding of privity. The latter is a

(1948) (federal court construes state law by emulating the weightier determination. Many jurisdictions have dispensed

highest court of the state). The key holding of In re with the privity requirement altogether as to the party

Forfeiture relies upon the Michigan Supreme Court opinion asserting preclusion, Blonder-Tongue Labs., Inc. v. Univ. of

in Michigan v. Gates, supra, but Gates merely found that a Ill. Found., 402 U.S. 313, 326 & n.14 (1971), but never as to

Michigan prosecutor acted as the same party when he the party to be precluded. Shimman v. Frank, 625 F.2d 80,

represented the entire state, as when he represented a state 89-90 (6th Cir. 1980).

agency. Gates, 452 N.W.2d at 630. Gates does not imply

that separate governmental units, much less separate Michigan maintains the traditional rule of “mutuality of

sovereigns, are privies as a matter of law. estoppel,” requiring both the party to be precluded and the

No. 02-2081 United States v. Dominguez 7 8 United States v. Dominguez No. 02-2081

party asserting preclusion to have been represented at the that no privity exists between state and federal governments,

prior proceeding. Lichon v. American Universal Ins. Co., 459 between the governments of different states, or between state

N.W.2d 288, 298 (Mich. 1990). One might conclude that and local governments.” Ibid. (quoting 47 Am. Jur. 2d

when a Michigan court finds privity, it uses exactly the same Judgments, § 700 (2003)) (emphasis added). Although

analysis as to either role, so the finding is precedential across Baraga County addresses federal-state privity only in dictum,

the board. But it has long been observed that in jurisdictions it strongly suggests that absent a showing of an agency

that require mutuality of estoppel, “exceptions were made by relationship between the state and federal prosecutors, a

decisions that extended the benefits of preclusion through Michigan court would not find they were in privity.

findings of privity that surely would not have been made had

the direction of preclusion been reversed.” 18 Charles Alan The Baraga County dictum commands our respect, the

Wright, Arthur R. Miller, & Edward H. Cooper, Federal more so because it accords with the general understanding of

Practice and Procedure § 4463 (1981). The Michigan Court the relationship between federal and state prosecutors. This

of Appeals takes a pragmatic, equitable approach to the court has opined, albeit only in dictum and without analysis

mutuality requirement. See Keywell & Rosenfeld v. Bizell, of state law, that a Michigan and a United States prosecutor

657 N.W.2d 759, 787-88 (Mich. Ct. App. 1992), and cases were not the same party. United States v. Lloyd, 10 F.3d 1197

cited therein. Therefore, even the same panel of the Michigan (6th Cir. 1993). The First Circuit Court of Appeals routinely

Court of Appeals might not have found privity had the In re looks for an agency relationship to determine whether a

Forfeiture roles been reversed.1 federal prosecution is collaterally estopped by a ruling in a

prior state prosecution. United States v. Charles, 213 F.3d

The Michigan Supreme Court has recently provided more 10, 21 (1st Cir.), cert. denied, 531 U.S. 915 (2000).2

relevant guidance. Baraga County v. State Tax Comm’n, 645 Similarly, this court has recognized that successive state and

N.W.2d 13, 17 (Mich. 2002), held that Michigan’s Tax federal prosecutions may constitute double jeopardy only if

Commission was not bound by a consent agreement between the state proceeding was a mere “tool” or “cover” for a federal

a county and an Indian tribe over the payment of property prosecution. United States v. Louisville Edible Oil Prods.,

taxes, because the facts presented did not show that the Inc., 926 F.2d 584 (587-88) (1991) (quoting Bartkus v.

county and the Tax Commission were in privity. The court Illinois, 359 U.S. 121, 123-24 (1959)).

held that between governmental units, unlike private entities,

privity is not based upon an identity of interests, but only In his appellate brief, and at oral argument, Dominguez

upon an agency relationship. Baraga County, 645 N.W.2d at asserted that the United States did direct the state prosecution.

17. The court also expressed its reluctance to find privity But there is no evidence in the record to support this

between different governmental units, agreeing with the argument. Dominguez merely asserts that a state-employed

general proposition that “[c]ourts have also generally found Assistant Attorney General on the state prosecution team was

also designated as an Assistant United States Attorney

1

The In re Forfeiture court also found privity on the other side of the

equation, reasoning that Hawkins’s interests as criminal defendant 2

represented his and his family’s interests as property owners. 486 N.W.2d The United States urges us to adop t Charles as a rule of federal

at 333. Dominguez therefore suggested at colloquy that Michigan and the common law. But it is not clear whether Charles and related cases

United States were like a family, a warm view of federal-state relations establish a rule of federal law or simply recognize a com mon ality in state

that this court cannot ho ld always is accurate. law thro ughout the First Circuit.

No. 02-2081 United States v. Dominguez 9 10 United States v. Dominguez No. 02-2081

involved in the federal prosecution. This court will not affirm this statute and bar a successive federal prosecution as well.

based upon a mere assertion made for the first time at the But this would let a hypothetical Michigan court do what the

appellate level. This is particularly so, because even if state legislature may not. Michigan clearly could not by

supported, the facts asserted would not prove control or statute restrain federal prosecutors from enforcing federal

agency: Dominguez does not assert that this particular state criminal laws as to Michigan convicts. How, then, can its

prosecutor could or did effectively recommend dismissal, nor courts create a uniquely-targeted rule of preclusion to do

that he was subject to federal control during the state precisely that?

proceedings.

The United States in its role as prosecutor is very different

We conclude that a Michigan court applying Michigan law from the usual civil litigator. In Standefer v. United States,

would not find based upon the facts in the record that the 447 U.S. 10 (1980), the Court determined that non-mutual

United States was in privity with the Michigan prosecutor in collateral estoppel may not be applied against the United

the prior state proceeding. Therefore, collateral estoppel does States in criminal cases. The Court based this decision in part

not bar the introduction of this evidence. upon the great public interest in the maintenance of criminal

prosecutions despite possibly erroneous prior acquittals based

Even if Michigan law did create privity between the federal on the same facts. Standefer, 447 U.S. at 25. The public’s

and state governments as a matter of law, we would have interest stands in sharp contrast to the importance of the

grave doubts as to the propriety of estopping a federal vindication of a mere private right in the usual civil action.

prosecutor on these grounds. As seen in this case, issue Id. at 24. Just so, applying a general state preclusionary rule,

preclusion often concludes an action as surely as claim even as to a claim exclusively within the civil jurisdiction of

preclusion. See Ashe v. Swenson, 397 U.S. 436, 445 (1970) the United States impairs only the rights of one litigant on one

(state is precluded from separately prosecuting alleged robber occasion; but only the United States has the power to enforce

for each victim of same robbery, where state could not prove its own criminal laws. It should not be lightly inferred that

identity in first trial). In effect, Michigan could gravely affect Congress intended to put this fundamental attribute of

the powers of the United States acting as sovereign in its own sovereignty at the mercy of a state legislature’s or judiciary’s

courts. Cf. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. ability to say, as it were, “inside our state borders, the federal

1977) (“collateral estoppel doctrine does not apply when government is us.”

different sovereigns and, thus, different parties are involved

in the litigation.”) The Full Faith and Credit Act certainly Such an expansive reading of the Act could have

gives the Michigan courts and legislature considerable mischievous results. The federal government would doubtless

influence over subsequent litigation in federal court, and this be obliged to involve itself closely in all Michigan criminal

serves comity. Migra, 475 U.S. at 84. But to promote comity prosecutions implicating some federal crime. The resulting

is one thing, to surrender sovereignty quite another. interference with the Michigan Attorney General’s office

would waste federal and state resources. It might also impair

The problem is illustrated by comparison to Mich. Comp. the very goal of the Full Faith and Credit Act, comity. See

Laws Ann. § 333.7409, which bars a Michigan prosecution Migra, 475 U.S. at 84. And the mischief need not be

for drug trafficking based upon acts that have already given confined to the criminal arena but could spread to other areas

rise to a criminal prosecution in another jurisdiction. of overlapping federal and state responsibility. Instead of

Dominguez urges that a Michigan court would analogize from assessing the sovereigns’ relationship on a case-by-case basis,

No. 02-2081 United States v. Dominguez 11

as in ITT Rayonier, supra, the mere fact of overlap would be

enough to create privity between agencies. Confronting a

similar issue, the Supreme Court held that a California state

court ejectment action against tenants of the United States did

not estop the United States, even though California made

landlords privy to their tenants in such actions. Carr v.

United States, 98 U.S. 433, 437 (1878). To rule otherwise

would be to find, unacceptably, that California had subjected

the United States to suit without its consent or even its

knowledge. Id. at 438. Carr may not fully accord with the

modern view of sovereign immunity, but its general concerns

remain valid. Generally applicable state rules of privity may

occasionally encompass the United States in its sovereign role

and preclude some claim or issue. ITT Rayonier, 627 F.2d at

1002-03 & n.7. But it seems unlikely that a privity rule

targeted solely at the United States as prosecutor would come

within the bounds of the Full Faith and Credit Act.

Because the United States was not party or privy to the

state court proceeding against Dominguez, it is not

collaterally estopped from litigating the admissibility of the

evidence against Dominguez, and we therefore REVERSE the

order of the district court and remand for further proceedings

in accord with this opinion.