Petition for Writ of Certiorari — Maylesha S. Lewis, Petitioner v. Nebraska

No.

IN THE SUPREME COURT OF THE UNITED STATES

MAYLESHA LEWIS, Petitioner,

vs.

STATE OF NEBRASKA, Respondent.

On Petition for Writ of Certiorari from

the Nebraska Supreme Court

PETITION FOR WRIT OF CERTIORARI

Jessica C. West, Assistant Public Defender

Counsel of Record

Thomas C. Riley

Public Defender for Douglas County, Nebraska

1717 Harney Street

Room 500

Omaha, Nebraska 68183

(402) 444-7175

QUESTIONS PRESENTED

I. Is Diaz v. United States, 223 U.S. 442 (1912) an exception to the

double jeopardy rule announced in Blockburger v. United States, 284

U.S. 299 (1932), and if so, what are the applicability standards?

Il. Does the Double Jeopardy Clause bar a secondary prosecution

for motor vehicle homicide while operating a vehicle under the

influence, after a defendant has already been convicted and sentenced

for driving under the influence resulting in serious bodily injury?

PARTIES TO THE PROCEEDING

All parties appear in the caption of the case on the cover page.

DIRECTLY RELATED PROCEEDINGS

Proceedings at issue in this matter began with the filing of the

Information in the District Court of Douglas County Nebraska, State of

Nebraska v. Maylesha Lewis, CR20-3570. Judgement was rendered on

March 26, 2021. No appeal was filed. A second, subsequent

Information was filed in the District Court of Douglas County

Nebraska, State of Nebraska v. Maylesha Lewis, CR21-4233. The

district court sustained defendant’s plea in bar on March 30, 2022. The

State of Nebraska filed a notice of exception with the Nebraska Court

of Appeals and a petition to bypass, which was granted on September

7, 2022. The Nebraska Supreme Court filed the opinion on March 24,

2023, under appellate case number S-22-324. The opinion can be found

at State v. Lewis, 986 N.W.2d 739 (Neb. 2028).

i.

TABLE OF CONTENTS

QUESTIONS PRESENTED...0....ccccccecccscccescssescescesesceseseecerseneasens i

PARTIES TO THE PROCEEDINGS .........ccccccccccecccsessscsessceeeeees ii

DIRECTLY RELATED PROCEEDINGS ..........cccccccccceeeceseeeeeees ii

TABLE OF AUTHORITIES 1.0... ccccccccccsseseescscesssscscessecesssseeeeees Vv

OPINION BELOW 0000... cccccccsessscsccsecseesesscscssssccscssssssssteesaceeeaeeas 1

PLIES DIC TLON cowsessca esis.cvaasns hditiorinanes sneseonrsmunecurnnenes xevrenysussxon sven 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

TINY OL VERD cxsescase sone exxcsssuvtes ssa Senmenamen neneannreannmenneep eoee wey PBN Get RIAN Hi 1

STATEMENT OF THE CASE .......ccccccccccccscecssescsessescssssesvecevecsees 2

TIN TRO DUCTION cases ssw sits 55 isesencinensanrancomen ens ecennuqerpeys yaeuan weenane ene 3

REASONS FOR GRANTING THE WRIT

I. The Petition for Writ of Certiorari should be granted

because the Nebraska Supreme Court erred in finding

that the United States Supreme Court’s holding in

Diaz v. United States, 223 U.S. 442 (1912) creates an

exception to the double jeopardy clause as interpreted in

Blockburger v. United States, 284 U.S. 299 (1932). ..... 6

II. The Petition for Writ of Certiorari should be granted because

the Nebraska Supreme Court, in citing other jurisdictions,

erroneously construed the holding in Diaz too broadly

thereby circumventing Blockburger and the protections

afforded to accused citizens under the Fifth Amendment of

the United States Constitution. ..0...0.ccccccccsccesseseeeees 10

A. The Nebraska Supreme Court unreasonably expanded

the holding of Diz. ....ccccccccccecsesccsscccssecesseecsscenscs 10

B. The Nebraska Supreme Court wrongly applied Diaz to

the facts Of Lewis. ....cccccccccccceccecscecsssssceseceseeessecseeess 13

CONCLUSION .......ccccccccccccsccessecccscesccacsesecerenscesesaseuccaseasesseesens 18

iil.

APPENDIX A: Opinion of the Nebraska Supreme Court, State v.

Lewis, 986 N.W.2d 739 (Neb. 2028), filed March 34, 2028....... la

APPENDIX B: Order of the District Court of Douglas County

Nebraska sustaining defendant’s plea in bar under docket

CR21-4233, filed March 30, 2022..0.....cecccccccsscesscesscescceseeeseceses lda

APPENDIX C: Sentencing Order of the District Court of Douglas

County Nebraska under docket CR20-3570, dated March 26, 2021

hihi Si inner ene ann rere nas § Se EY TIO HUIS ERED NSA HASTREGS ESREAREINNESS HER HONG RASLATA dtamamn ance 22a

APPENDIX D: Brief of Appellant ......0..ccccccecccccsccescesccesceeeeeeees 25a

APPENDIX E: Brief of Appellee ........ccccceccccccsccscessseceeseeeeeeees 5la

APPENDIX F: Relevant Statutory Provisions

Neb. Rev. Stat. § 60-6,198 ......ccceccecceccccscessccsecsseessecees 74a

Neb. Rev. Stat. § 28-306 ........cccccecccsececescessscecssscessecenss 76a

APPENDIX G: Relevant Transcripts of Proceedings

Bill of Exceptions, Vol. 1 for plea in bar hearing, dated

January 6, 2022 oo. ceccccccccccssccseccestscceseceesecesscecseceesesenes 78a

Transcript of Proceedings for sentencing hearing on docket

CR20-3570, dated March 22, 2021 o.......ececccescceseeessceeees 99a

Transcript of Proceedings for plea hearing on docket

CR20-3570, dated February 5, 2021.00... ccccccsscssseseeseees 116a

lV.

TABLE OF AUTHORITIES

Ashe v. Swenson, 397 U.S. 486 (1970) .....cccccececccessecessseseseeeeeees 7

Blockburger v. United States, 284 U.S. 299 (1982) ...... 3,6,7,10,18

Brown v. Ohio, 482 U.S. 161 (1977) .....cccccccccesceesceeeseeessceeseeees 4,8

Davis v. Herring, 800 F.2d 518 (5th Cir.1986) oo... eee 8,12

Diaz v. United States, 223 U.S. 442 (1912)... 3,5,6,8,10,18

Dixon v. Dupnik, 688 F.2d 682 (9th Cir. 1982)... eee eeeeeeeeeee 6

Dixon v. State, 772 A.2d 283 (Md. 2001)... cece eeceeeeeeeeeee 7,8,12

Ex Parte Hill, 464 S.W.3d 444 (Tex.App.-Dallas 2015, pet. refd)6

Garrett v. U.S., 471 U.S. 773 (1985) woo. cceeeeeeeeteeeeeseeeenes 8,11,16

Hinton v. District Court of Oklahoma County,

693 P.2d 1277 (Okla. Crim. 1984) 0.0... ciceecececesseeccesesneeeecees 6,9

Illinois v. Vitale, 447 U.S. 410 (1980) uu... cee ceeeeeeeeeeeeeee 11,12,13

Jeffers v. United States, 4382 U.S. 187 (1977) ...ceecceeeeeceeseeseeeeee 11

Kansas Bankers Sur.Co. v. Halford, 664 N.W.2d 865

(Neb. 2002) ........ccscecccccccssesssscccccecsscccessessaseceesesaeeeeseeteceeseeettseeeens 15

Mitchell v. Cody, 783 F.2d 669 (6th Cir. 1986)........00cc.ceeeeeeeeee 6,9

Newton v. State, 373 A.2d 262 (Md. 1977) ...cccccceeeececcceeeeseseeeeenees 7

Pandelli v. United States, 635 Fed.2d 533 (6th Cir. 1980) 8,11,12

People v. Brown, 36 N.E.3d 306 (Ill.App. 4 Dist. 2015).......00000.. 6

People v. Harding, 506 N.W.2d 482 (Mich. 1998)........cceeeeeee 6,9

People v. Ream, 750 N.W. 2d 536 (Mich. 2008) .........cecceeeeeeeee 6,9

People v. Scott, 939 P.2d 854 (Cal. 1997) woo... ieee ceecceceesseseeeseeees 6,9

Polikov v. Neth, 699 N.W.2d 802 (Neb. 2005)........cccceeeeeee 14,15

Rutledge v. U.S., 517 U.S. 292 (1996) oo. .cececccccecececenceeeeenseseenees 8

Spencer v. State, 632 A.2d 214 (Md. App. 1998)... ccc eeeeeeeeeee 6

State v. Hutchinson, 942 A. 2d 1289 (N.H. 2008)... cee 6,9

State v. Lewis, 986 N.W.2d 739 (Neb. 20238)......... App. A,p.la-14a

State v. Mitchell, 682 S.W.2d 918 (Tenn. 1984)... ccceeeceeeeee: 6,9

State v. White, 577 N.W.2d 741 (Neb. 1988)... ccccecceeeeeeeeeeeees 11

State v. Winkler, 663 N.W.2d 102 (Neb. 2008)... 4,8,11,12

Todd v. Lansdown, 747 P.2d 312 (Okla.Crim.App. 1987)............ 6

U.S. v. Cavanaugh, 948 F.2d 405 (8th Cir. 1991) oo. 6

U.S. v. Dixon, 509 U.S. 688 (1998)... ccc cccscccessecsesneeeeeetsesenens 11

United States v. Dixon, 509 U.S. 688 (1998)... cee eeeeecseeeeeeeees 8

United States v. Kuhn, 165 F. Supp2d 639 (E.D. Mich. 2001) 8,12

Whalen v. United States, 445 U.S. 684 (1980)... 8,11,12

V.

White v. State, ex rel. Hopper, 821 P.2d 378 (Okla. Crim. 1991)6,9

Whittlesey v. Conroy, 301 F.3d 213 (4th Cir. 2002) (Whittlesey 16

Whittlesey v. State, 606 A.2d 225, 233-237 (Md. 1992)

(Whittlesey ID) ........ccccccscscssssssseseesessecsesecstcsesececessecececeeeesseceeseeceesecees 6

Whittlesey v. State, 665 A.2d 223 (Md. 1995) (Whittlesey II])...... 6

STATUTES

28 U.S.C.

§ LQ5A a ccecccsecccesscssessessessesssessessusssecevsareceessvessessseesecsessevesees 3

§ QB To cccccsseessessesssessseesecssecsussssesssecsusssecssessesssesssesseessseesseee 1

Neb. Rev. Stat.

§ 28-306 ooo. cc cece cee cceecssssssessesesececsecseseeseseesesecssecececeeceseeecesees 2,5

§ 29-110 ooo eeceseeseeseceeseceeceececeveceecceecceecccessecesseeecess 14,16

§ 29-90] oooce cece ccecsssssssesecsesseecececsesecececeecssessecsesesseceeeeecersecee 17

§ 29-1207 ooo cece ccccssessssecssceseececceseececeesscecececsseeceeseeecsecceseee 14

§ GO-196 oooec cece cecsssssessssssesecsecseeeececseesecsceesessseecsesecerseeees 2,12

§ 60-6, 197 oo... eee cc eceeeeeseceseccccceccceseeseesssssusececeecececrereeess 1,2,12

§ 60-6198 o.oo. ccesssssssessseececsesssesesseeseserssectececestereeseescees 1,5

OTHER AUTHORITIES

Neb. Const. art 1, § 12... ccc cccccscessccsscceseeesseesceseeenseeseeseens 1,4

Nassor Hayat, Fareed. “Two Bites at the Apple: Requiring Double

Jeopardy Protection in Gang Cases.” 73 Rutgers U. L. Rev. 1463.

(Summer, 2021): 1-42 ooo iceccciccessccsensececesceseneececssecessseesecseees 15

Reed Amar, Akhil. “Double Jeopardy Law Made Simple.”

106 Yale L.J. 1807 (April 1997): .....iec lee cece eeccecessesenseeeeseeesscesees 6

Vil.

OPINION BELOW

The opinion of the Nebraska Supreme Court is reported at 986

N.W.2d 739 (Neb. 2023) (No. S-22-324) and is attached at App. A, p.

la-14a.

STATEMENT OF JURISDICTION

The Nebraska Supreme Court issued its opinion on March 24,

2023. See App. A, p. la-14a. This Court’s jurisdiction is invoked under

28 U.S.C. Section 1257 (a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

I.

The Double Jeopardy Clause of the Fifth Amendment provides that

no person shall be “subject for the same offence to be twice put in

jeopardy of life or limb.” U.S. Const. amend. V.; see also, Neb. Const.

art 1, § 12.

II.

The Fourteenth Amendment states in pertinent part that “...nor

shall any state deprive any person of life, liberty, or property without

due process of law...” U.S. Const. amend. XIV.

III.

Driving under the influence causing serious bodily injury occurs

when a person (1) operates a motor vehicle in violation of Neb. Rev.

Stat. § 60-6,196 (driving under influence of alcoholic liquor or drug) or

60-6,197 (refusing to submit to a blood, breath, or urine test for

purpose of determining the concentration of alcohol or the presence of

drug), and (2) the victim sustains serious bodily injury as a proximate

result. Neb. Rev. Stat. § 60-6,198.

IV.

Motor vehicle homicide (DUI) occurs when a person (1) operates

a motor vehicle in violation of Neb. Rev. Stat. § 60-196 (driving under

influence of alcoholic liquor or drug) or 60-6,197 (refusing to submit a

blood, breath, or urine test for purpose of determining the

concentration of alcohol of the presence of drugs), and (2) the victim

dies as a proximate result. Neb. Rev. Stat. § 28-306.

STATEMENT OF THE CASE

Maylesha S. Lewis (“Lewis”) was convicted and sentenced for

driving under the influence resulting in serious bodily injury

(“DUI/SBI”) after crashing into a light pole and injuring her

unbuckled, backseat passenger. She was arraigned in October 2020,

entered a plea in February 2021, and was sentenced in March 2021. At

the time of these hearings, the passenger remained in a vegetative

state with undetermined life expectancy. At sentencing, although the

State requested the maximum penalty of 36 months, the district court

denied that request and instead ordered Lewis to serve 30 months

incarceration followed by 18 months post-release supervision to assist

with getting Lewis “on the right track” through mental health and

substance abuse services.

On June 17, 2021, the passenger died. The State explicitly

alleges his death was the result of the collision. Six months after his

death, on the eve of Lewis being released from prison on a term of

community based supervision with wrap around services to address

her mental health and substance abuse issues, the State mounted a

subsequent prosecution of Lewis for the same conduct. On December

20, 2021, Lewis was charged with motor vehicle homicide while

operating a vehicle under the influence (“DUI/MVH”). Lewis filed a

plea in bar to the subsequent charge, asserting she was being

prosecuted a second time for the same offense in violation of her double

jeopardy rights. The district court agreed and dismissed the

subsequent prosecution.

The State filed an exception assigning error to the district

court’s double jeopardy analysis. On March 24, 2028, the Nebraska

Supreme Court sustained the exception, reversed the order granting

the plea in bar, and remanded the cause for further proceedings. The

Nebraska Supreme Court reasoned that Diaz, not Blockburger,

governed the court’s analysis and held that double jeopardy does not

apply where the State is unable to proceed on a more serious charge at

the outset of events because the additional facts necessary to sustain

that charge have not yet occurred. A stay of mandate was granted on

April 12, 2023.

Lewis now petitions this Court for a writ of certiorari to the

Nebraska Supreme Court pursuant to 28 U.S.C. § 1254.

INTRODUCTION

This case presents an opportunity for this Court to resolve a

conflict between its holding in Diaz v. United States, 223 U.S. 442

(1912) and in Blockburger v. United States, 284 U.S. 299 (1932). The

Nebraska Supreme Court interpreted Diaz as an exception to the rule

announced in Blockburger, even though the landmark decision in

Blockburger was decided after Diaz. A growing number of jurisdictions

have also adopted this erroneous interpretation of jurisprudence.

These decisions are in direct conflict with the Court’s holding in

Blockburger, creating confusion and inconsistency in Fifth Amendment

jurisprudence and a lack of finality in the prosecution of accused

citizens across the country.

The present case hinges on whether Diaz is truly an exception to

Blockburger, or not. If it is not, the Nebraska Supreme Court must

answer the question that was put before it on appeal—whether the

trial court properly applied Blockburger. In accordance with the

argument below, Lewis urges the this Court to direct a proper

application of Blockburger and reinstate the dismissal of the criminal

action against her or remand the matter with instruction to dismiss.

REASONS FOR GRANTING THE WRIT

The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall be “subject for the same offence to be twice put in

jeopardy of life or limb.” U.S. Const. amend. V. Similarly, article I, §

12, of the Nebraska constitution provides, “No person shall be ... twice

put in jeopardy for the same offense.” Neb. Const. art. I, §12. The

Double Jeopardy Clauses of the U.S. and Nebraska constitutions are

coextensive and protect against three distinct abuses: (1) a second

prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction (the present issue),

and (3) multiple punishments for the same offense. State v. Winkler,

663 N.W.2d 102 (Neb. 2008). In Brown v. Ohio, the United States

Supreme Court concluded: “Whatever the sequence may be, the Fifth

Amendment forbids successive prosecution and cumulative

punishment for a greater and lesser-included offense.” 432 U.S.161,

169 (1977).

The only constitutional abuse that was ripe for discussion before

the trial court in this matter was the issue of successive prosecution.

An accused person is subjected to successive prosecution when they are

again put to jeopardy for the same offense. The question presented to

the trial court was twofold: (1) did the prosecution of Lewis for

DUI/MVH register as the same offense of DUI/SBI, and (2) was the

State seeking a second prosecution of Lewis for the same offense after

Lewis had already been convicted? The trial court correctly answered

yes to both, finding that double jeopardy barred the State of Nebraska

from a seeking a second prosecution in the present matter.

Taking exception, the State of Nebraska assigned three errors

on appeal to the Nebraska Supreme Court: First, the State assigned

error to the trial courts analysis of Blockburger. App. D, p. 14-18.

Second, the State assigned error to the trial court’s finding that Neb.

Rev. Stat. § 60-6,198 (DUI/SBI), is a lesser included offense of Neb.

Rev. Stat. § 28-306 (DUI/MVH). App. D, p. 38-42a. Lastly, the State

assigned error that the trial court erred when it failed to address

subsection (4) of both Neb. Rev. Stat. §§ 28-306 and 60-6,198. App. D,

p. 42a-46a.

The Nebraska Supreme Court did not address the assigned

errors—indeed, the court did not conduct a Blockburger analysis

whatsoever—but rather, chose to join a number of jurisdictions in

interpreting the holding in Diaz v. United States, 223 U.S. 442 (1912),

as a widely recognized exception to successive prosecutions. In

reaching its findings, the Nebraska Supreme Court wrote: “Diaz was

decided before Blockburger, but the Court has regularly described Diaz

as an exception to the general double jeopardy rule forbidding

successive prosecution for a greater offense after prosecuting a lesserincluded offense.” App. A, p. 9a. Accordingly, the Nebraska Supreme

Court found it appropriate to reinstate the cause of action against

Lewis, and remanded the matter back down to the trial court for

further proceedings. App. A, p. 14a.

Lewis assigns error on two grounds. First, Blockburger (not

Diaz) is the controlling case and Nebraska joined a growing number of

jurisdiction in construing the holding in Diaz too broadly. Second,

should this Court find Diaz a viable exception, applicability standards

should be announced by this Court. The Nebraska Supreme Court

unreasonably expanded the scope of Diaz and misapplied it to the facts

in this case.

I. The Petition for Writ of Certiorari should be granted

because the Nebraska Supreme Court erred in finding

that the Court’s holding in Diaz v. United States, 223

U.S. 442 (1912) creates an exception to the double

jeopardy clause as interpreted in Blockburger v.

United States, 284 U.S. 299 (1932).

The Court has not made a determination as to the general

applicability or scope of its holding in Diaz v. United States, 223 U.S.

442 (1912). See e.g., Whittlesey v. State, 606 A.2d 225, 233-237 (Md.

1992). As a result, jurisdictions nationwide have been loosely applying

and broadening the scope of this narrow holding. See Whittlesey I, 606

A.2d 225 (Md. 1992); Whittlesey v. State, 665 A.2d 223 (Md. 1995),

Whittlesey v. Conroy, 301 F.3d 218 (4th Cir. 2002); Mitchell v. Cody,

783 F.2d 669 (6th Cir. 1986); State v. Hutchinson, 942 A.2d 1289 (N.H.

2008); People v. Scott, 939 P.2d 354 (Cal. 1997); People v. Harding, 506

N.W.2d 482 (Mich. 1993); People v. Ream, 750 N.W. 2d 536 (Mich.

2008); Hinton v. District Court of Oklahoma County, 693 P.2d 1277

(Okla. Crim. 1984) (overruled by White v. State, ex rel. Hopper, 821

P.2d 378 (Okla. Crim. 1991)); State v. Mitchell, 682 S.W.2d 918 (Tenn.

1984); Spencer v. State, 632 A.2d 214 (Md.App. 1993); Ex Parte Hill,

464 §.W.3d 444 (Tex.App.-Dallas 2015, pet. refd); People v. Brown, 36

N.E.3d 306 (Ill.App. 4 Dist. 2015); Dixon v. Dupnik, 688 F.2d 682 (9th

Cir. 1982); Todd v. Lansdown, 747 P.2d 312 (Okla.Crim.App. 1987);

U.S. v. Cavanaugh, 948 F.2d 405 (8th Cir. 1991) (distinguished by U.S.

v. Hoeffner, 626 F.2d 857 (5th Cir. 2010); see also Reed Amar, Akhil.

“Double Jeopardy Law Made Simple.” 106 Yale L.J. 1807 (April 1997):

1807-1848; see also Reed Amar, Akhil. “Double Jeopardy Law Made

Simple.” 106 Yale L.J. 1807 (April 1997): 1807-1848.

This practice is undermining the core of the Fifth Amendment.

The Nebraska Supreme Court’s interpretation and application of the

Diaz holding is erroneous and signifies a growing disparity between

case law and Fifth Amendment jurisprudence. To understand why this

developing branch of jurisprudence is faulty, this Court must look to

the development of the “Diaz exception.”

The “Diaz exception,” of course, originates with the opinion

itself. In 1912, in the province of Occidental Negros, Philippine

Islands, Gabriel Diaz assaulted Cornelio Alcanzaren. See Diaz, 223

U.S. at 444. The next day, Diaz was charged and convicted before a

Justice of the Peace for assault and battery. Id. Approximately a

month later, Alcanzaren died and the investigation as to the charge of

homicide found that the death stemmed from the initial assault for

which Diaz had already been convicted. Id. Diaz was subsequently

tried and convicted of homicide before the Court of First Instance. Id.

Diaz then appealed. Id. The Court reasoned that the first prosecution

did not contemplate Alcanzaren’s death and because the first

prosecution occurred in a court of more limited jurisdiction, the

subsequent prosecution for homicide should not be barred. The

ultimate finding in Diaz is that the double jeopardy protections do not

apply to instances of a second prosecution when the facts needed to

sustain a conviction at the onset were not present at the time of the

original prosecution. Id. at 448—49.

Twenty years later, this Court announced the “same elements”

test for double jeopardy analysis in Blockburger v. United States, 284

U.S. 299, 304 (1932). “The applicable rule is that, where the same act

or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact

which the other does not.” Id.; see also Newton v. State, 373 A.2d 262,

265 (Md. 1977) and Dixon v. State, 772 A.2d 283, n. 27 (Md. 2001).

Notably, this Court reached its decision in Brown while still

acknowledging Diaz. See Brown at 169, n. 7.

Although Blockburger was the announced test, the “Diaz

exception” gathered some steam at the state level, reaching a pinnacle

in 1970 with acknowledgment in the concurring opinion of Justice

Brennan joined by Justices Douglas and Marshall, JJ., in Ashe v.

Swenson, 397 U.S. 486, 453-454 (1970). Justice Brennan advocated the

application of a “same transaction” test to the Double Jeopardy Clause,

except in the “most limited circumstances.” 397 U.S. at 453-454. He

went on to give an example of a “limited circumstance” in footnote 7:

“For example, where a crime is not completed or not discovered,

despite diligence on the part of the police, until after the

commencement of a prosecution for other crimes arising from the same

transaction, an exception to the “same transaction” rule should be

made to permit a separate prosecution. See, e.g., Diaz v. United

States[.]” Id.

By 1977, the Court demonstrated concern with the growing

narrowness of Blockburger’s application in Brown v. Ohio, 432 U.S.

161, 166 (1977). While this Court recognized that the statutory

language at issue in Brown passed Blockburger analysis, the burden of

proof did not. “As is invariably true of a greater and lesser included

offense, the lesser offense joyriding requires no proof beyond that

which is required for conviction of the greater auto theft. The greater

offense is therefore by definition the ‘same’ for purposes of double

jeopardy as any lesser offense included in it.” Id. at 168.

The articulated holding in Brown reaffirms the notion that an

accused citizen may not be subjected to a second prosecution on a

lesser included offense, or vice versa. To extrapolate, the holding in

Brown reaffirms the constitutional guarantee of the Double Jeopardy

Clause and the place of importance it holds in American jurisprudence.

After Brown, Blockburger has continued to endure. See Whalen

v. United States, 445 U.S. 684 (1980); Pandelli v. United States, 635

F.2d 533, 538 (6th Cir.1980); Garrett v. U.S., 471 U.S. 773 (1985);

Davis v. Herring, 800 F.2d 513 (5th Cir.1986); United States v. Dixon,

509 U.S. 688 (1993); Rutledge v. U.S., 517 U.S. 292 (1996); United

States v. Kuhn, 165 F.Supp2d 639 (E.D.Mich.2001); Dixon v. State, 772

A.2d 283 (Md. 2001); State v. Winkler, 663 N.W.2d 102 (Neb. 2003); see

also App. E, p. 62a-65a.

Yet today, the threat to Blockburger and the protections afforded

accused citizens by the Fifth Amendment has resurged. For example,

the Nebraska Supreme Court has taken this occasion to announce its

joining with other jurisdictions in applying what has been coined as

the “Diaz exception” in instances of assessing whether or not

successive prosecution was barred under the double jeopardy clause.

See Mitchell v. Cody, 783 F.2d 669 (6th Cir. 1986) (convictions for

driving while intoxicated and disregarding stop sign before victim died

no bar to subsequent charge of unlawful killing in operation of motor

vehicle); State v. Hutchinson, 942 A. 2d 1289 (N.H. 2008) (double

jeopardy no bar to prosecution for murder after attempted murder

conviction before victim died); People v. Scott, 939 P.2d 354 (Cal. 1997)

(prior conviction of rape and attempted murder no bar to murder

prosecution when victim died in interim); People v. Harding, 506

N.W.2d 482 (Mich. 1993) (prior conviction of armed robbery and

assault with intent to murder no bar to felony murder prosecution

where victim died in interim), abrogated on other grounds, People v.

Ream, 750 N.W. 2d 536 (Mich. 2008); Hinton v. District Court of

Oklahoma County, 693 P.2d 1277 (Okla. Crim. 1984) (prior child abuse

conviction no bar to murder prosecution where child died in interim)

overruled on other grounds, White v. State, ex rel. Hopper, 821 P.2d 378

(Okla. Crim. 1991); State v. Mitchell, 682 S.W.2d 918 (Tenn. 1984)

(conviction for traffic offenses no bar to motor vehicle homicide

prosecution where victim died in interim).

While Diaz is presumably still good law, this acknowledged

exception to Fifth Amendment jurisprudence has had a history of wild

expansion. This once narrowly tailored exception has evolved into an

all-encompassing exception that has steadily chipped away at double

jeopardy protections that are constitutionality afforded to the accused.

The manner in which the central holding of Diaz is being applied is at

odds with Fifth Amendment jurisprudence. Without express limits, the

holding set forth in Diaz has been widely acknowledged by

jurisdictions as an available tool to evade constitutional protections

provided under the Double Jeopardy Clause. This is why it is critical

for this Court to either formally overturn Diaz or, as discussed below,

announce proper applicability standards.

II. The Petition for Writ of Certiorari should be granted

because the Nebraska Supreme Court, in citing other

jurisdictions, erroneously construed the holding in

Diaz too broadly thereby circumventing Blockburger

and the protections afforded to accused citizens under

the Fifth Amendment of the United States

Constitution.

Should this Court find that the holding in Diaz is a constitutionally

sound exception, it should also determine the scope of its applicability.

The Nebraska Supreme Court, relying on other jurisdictions

erroneously found that the Court’s holding in Diaz v. United States,

223 U.S. 442 (1912), is an applicable exception to Blockburger v.

United States, 284 U.S. 299 (1932). See App. A, p. la-14a. The

Nebraska Supreme Court has joined with other jurisdictions that have

expanded the applicability of Diaz, showcasing the dangers awaiting

the protections provided under the Double Jeopardy Clause. Continued

application of Diaz in inappropriate contexts threatens unjust

outcomes in the form of successive sentences, an overhaul of the rule of

finality, and gutting of double jeopardy principles thereby undermining

the United States Constitution.

In Lewis, the Nebraska Supreme Court unreasonably expanded the

central holding of Diaz and wrongly applied it to the facts of Lewis’

case.

A. The Nebraska Supreme Court unreasonably expanded

the holding of Diaz.

10

First, the Nebraska Supreme Court unreasonably expanded the

central holding of Diaz by failing to conduct a Blockburger analysis

whatsoever. The trial court properly concluded under a same-elements

analysis that under the State of Nebraska’s presented theory, in this

case, in order for the State to convict on DUI/MVH they would have to

also establish all of the elements necessary to prove DUI/SBI. App. B,

p. 18a-20a. This was an analysis the Nebraska Supreme Court

neglected to address entirely, instead stating:

“{a]lthough the parties devote much of their appellate

briefing to whether, under the Blockburger test, the crime

of DUI/serious bodily injury is a lesser-included offense of

motor vehicle homicide/DUI, we do not find it necessary to

address that question. Instead, on the circumstances of

this case, we agree the double jeopardy framework from

Diaz governs our analysis.”

App. A, p. 8a.

Abandoning Blockburger analysis for double jeopardy issues

entirely is incongruous to legal precedent. See Whalen v. United States,

445 U.S. 684 (1980); Illinois v. Vitale, 447 U.S. 410 (1980); Pandelli v.

United States, 635 Fed.2d 533 (6th Cir. 1980); Jeffers v. United

States, 432 U.S. 137, 151-52 (1977); Garrett v. U.S., 471 U.S. 773, 778,

(1985); U.S. v. Dixon, 509 U.S. 688, 696-697 (1993); State v. White, 577

N.W.2d 741, 744 (Neb. 1988); State v. Winkler, 663 N.W.2d 102, 106

(Neb. 2003).

The test to be applied to determine whether two offenses are the

same offense for double jeopardy purposes is the same elements test,

which looks at whether or not one offense requires proof of a fact which

the other does not. See Blockburger, 284 U.S. at 304; see also Winkler,

663 N.W.2d at 106; Whalen, 445 U.S. at 692; and White, 577 N.W.2d at

745. As noted in State v. Winkler, supra, Whalen v. United States,

supra, and State v. White, supra, the underlying factual conditions in

each case must also be compared to determine whether the legal

elements of each offense are the same for double jeopardy purposes.

1]

See id. The purpose of the same-elements test is to allow analysis of

statutory schemes to determine if double jeopardy will act as a bar to a

successive prosecution in cases where the defendant may have already

been convicted of the predicate offense.

In application to the present matter, the trial court applied the

proper legal standards for analysis. The trial court in this matter

properly compared DUI/SBI with DUI/MVH. DUI/SBI occurs when a

person (1) operates a motor vehicle in violation of state law section 60-

6,196 (driving under the influence of alcoholic liquor or drug) or 60-

6,197 (refusing to submit to a blood, breath, or urine test for purpose of

determining the concentration of alcohol or the presence of drug), and

(2) the victim sustains serious bodily injury as a proximate result. See

App. F, p. 74a. DUI/MVH occurs when a person (1) operates a motor

vehicle in violation of state law section 60-196 (driving under influence

of alcoholic liquor or drug) or 60-6,197 (refusing to submit a blood,

breath, or urine test for purpose of determining the concentration of

alcohol of the presence of drugs) and (2) the victim dies as a proximate

result. See App. F, p. 76a. It is undisputed that these two charges arose

out of the same transaction. See App. G, p. 132a.

Importantly in Lewis, the prosecution explicitly stated their

intention to rely on the DUI/SBI charge to prove DUI/MVH. Contrast

App. D, p. 37a with Illinois v. Vitale, 447 U.S. 410, 419 (1980).

Applying the Blockburger same-elements test in context, the trial court

noted that “[t]he Blockburger analysis must be analyzed as noted in

State v. Winkler, supra, and Whalen v. United States, supra, and that

the underlying conditions must be compared to determine the

necessary elements of each offense.” App. B, p. 20a. This of course, is

the standard announced in Whalen, explained in Pandelli, and adopted

by numerous federal and state courts. See Winkler, 663 N.W.2d at 102;

Whalen, 445 U.S. at 684; Pandelli v. United States, 635 F.2d 5338, 538

(6th Cir. 1980); Davis v. Herring, 800 F.2d 518 (5th Cir.1986); United

States v. Kuhn, 165 F. Supp2d 639 (E.D. Mich. 2001); Dixon v. State,

772 A.2d 283, 309 n.27 (Md. 2001).

(2

The Nebraska Supreme Court’s application of the “Diaz

exception” side-steps the Blockburger same-elements test, and gives

the government an additional opportunity to effectuate prosecutions

that would have otherwise been barred under constitutionally sound

double jeopardy principles. This is one of the many dangers associated

with the loose application of the Diaz holding. The failure to conduct a

Blockburger analysis whatsoever is clear error.

B. The Nebraska Supreme Court wrongly applied Diaz to

the facts of Lewis.

Second, the Nebraska Supreme Court wrongly applied Diaz to

the facts of the present case. There are several important factual and

procedural contrasts between Diaz and the present case, none of which

were acknowledged or addressed by the Nebraska Supreme Court.

For example, there is no discussion in Diaz as to whether the

prosecutor had knowledge of the extent of injuries to the victim when

they first prosecuted Diaz for misdemeanor assault or whether due

diligence was exercised to determine the extent of the victim’s injuries.

While there is some indication that there was an investigation as to

the homicide, the factual discussion in the case was unclear on

whether there was any investigation whatsoever into the assault. See

Diaz, 223 U.S. at 448-449. The facts of Diaz indicate, generally, the

government’s inability under the circumstances to investigate with due

diligence the full scope of Diaz’ crime, prior to fashioning a charge. Id.

Whether or not the prosecution had knowledge that a more serious

charge is likely imminent is determinative of whether the “Diaz

exception” should apply. This Court announced this specific limitation

in Illinois v. Vitale, 447 U.S. 410 (1980).

In Vitale, this Court considered whether the defendant who was

convicted of failure to reduce speed could subsequently be prosecuted

for involuntary manslaughter arising from the same fatal accident. 447

U.S. at 410. In determining if the two charges constituted the “same

13

offense” for purposes of double jeopardy analysis, the Court utilized the

same-elements test. In doing so, the Court found that a “careless

failure to slow is always a necessary element of manslaughter by

automobile, then the two offenses are ‘same’ under Blockburger and

Vitale’s trial on the latter charge would constitute double jeopardy.” Id.

While the Court made note of the “Diaz exception,” the reasoning was

found to be inapplicable because the additional facts necessary to

sustain the subsequent prosecution had been known to the prosecutor

at the time of the first prosecution. Jd. at 420 n. 8, 100 S.Ct. 2260,

2267, n. 8.

As it pertains to knowledge, the facts in Lewis are inconsistent

with Diaz and consistent with Vitale. In Lewis, the State of Nebraska

was well aware of the vegetative state of the victim at the time of all

substantive hearings. The importance of this distinction from the facts

in Diaz is tied to due process, and the practical impact on trial courts

and its litigants. Nebraska has a three year statute of limitations, and

the government has the benefit of bringing a cause of action at any

time during the applicable three year statute of limitations. See Neb.

Rev. Stat. § 29-110. The prosecution made clear it was aware of the

tenuous nature of the victim’s condition, and the government could

have waited to file its complaint. See App. G, p. 11la. Mr. Martin’s

passing, after all, was only 8 months into the three year statutory

period. See App. G, p. 90a. While there may be public policy reasons to

not delay the filing of a criminal complaint, that is left to prosecutorial

discretion. See Polikov v. Neth, 699 N.W.2d 802 (Neb. 2005). In the

same vein, there is also a strict statutory speedy trial right in

Nebraska that requires the courts to bring a case to trial within six

months of the charging of the complaint. See Neb. Rev. Stat. § 29-1207.

To construe Diaz the way the Nebraska Supreme Court did, is to

place the onus on an accused citizen to waive her right to a trial within

six months of being charged in order to “wait and see” if the

government intends to file a subsequent cause of action. Undoubtedly,

this burden would most greatly impact indigent defendants who

14

cannot afford to post bond and remain incarcerated during the pretrial

phase of their case. See Nassor Hayat, Fareed. “Two Bites at the Apple:

Requiring Double Jeopardy Protection in Gang Cases.” 73 Rutgers U.

L. Rev. 1463. (Summer, 2021): 1-42. Moreover, the only remedy for any

breach of assurance by the State to not pursue more serious charges at

a later time is to withdraw an earlier plea. This is a toothless remedy

in instances like this, where Lewis had already served close to the

entirety of her 30 month prison sentence and was preparing to be

released with community-based supervision and rehabilitative

interventions. Practically, case dockets will become backlogged unless

judges force litigants to commence trial not knowing whether a

subsequent cause of action will re-commence at a later time. This is a

very practical distinction between the two cases that highlights the

importance of construing Diaz as narrowly as possible.

Another example of the distinction between Diaz and Lewis

pertains to fairness to the prosecution and the public policy interest to

prosecute individuals to the fullest extent. “At the time of the trial for

the [assault and battery], the death had not ensued ...” Diaz, 223 U.S.

at 448-449 (emphasis supplied). The opinion notably omits

Alcanzaren’s physical condition at the time of trial for the

misdemeanor charge, and there is no indication that he was in poor

physical condition. Jd. To the contrary, the opinion notes that the

victim’s death was tied to the misdemeanor assault and battery only

after “the preliminary investigation of [the homicide] charge.” Id. at

447. In Diaz, the defendant was charged, tried, and convicted of the

misdemeanor in one day, the day following the assault.

In contrast here, Lewis was arraigned in October 2020, entered

a plea in February 2021, and was sentenced in March 2021. At any

time prior to sentencing being announced, the prosecution could have

elected to dismiss the cause of action against Lewis in favor of taking

advantage of the statute of limitations and waiting to file a more

serious charge. See Kansas Bankers Sur.Co. v. Halford, 664 N.W.2d

865 (Neb. 2002); Polikov v. Neth, 699 N.W.2d 802 (Neb. 2005). There

15

may be a distinction in cases where the death of the victim is a

surprise. That is not the case here. Instead, it was a question of

whether the death would occur within the statute of limitations period.

See Neb. Rev. Stat. § 29-110; see also App. E, p. 68a. That burden of

uncertainty should rest on the government, not the citizen accused.

There were also jurisdictional limitations on what charges could

or could not be filed in Diaz that were not an obstacle in Lewis.

“Besides, under the Philippine law, the justice of the peace, although

possessed of jurisdiction to try the accused for assault and battery, was

without jurisdiction to try him for homicide; and, of course, the

jeopardy incident to the trial before the justice did not extend to an

offense beyond his jurisdiction.” Diaz, 223 U.S. at 449. In contrast in

Lewis, the same court and the same prosecuting authority were

involved in the first prosecution for DUI/SBI as in the subsequent

prosecution for DUI/MVH.

Finally, there was no discussion or concern of prosecutorial

vindictiveness in Diaz. The record does not support the existence of a

concern of this nature — the defendant was convicted of the

misdemeanor assault the day after the event, in separate jurisdictions

“on the other side of the Island ... 100 miles [apart by water],” at a

time in history that lacked modern communication, while the victim

was still alive and there being no facts in the opinion regarding him

being in poor condition. Diaz, 223 U.S. at 463. “The underlying idea,

one that is deeply ingrained in at least the Anglo-American system of

jurisprudence, is that the State with all its resources and power should

not be allowed to make repeated attempts to convict an individual for

an alleged offense[.]” Garrett v. U.S., 471 U.S. 778, 795-796 (1985)

(O’Connor, concurring). There is no evidence of “repeated attempts to

convict and individual for an alleged offense” in Diaz. That is in direct

contrast to the prosecution’s conduct in Lewis.

The Nebraska Supreme Court did not address prosecutorial

vindictiveness as a concern in Lewis, although it would have been

prudent to do so. At sentencing, although the State requested the

16

maximum penalty of 36 months, the district court denied that request

and instead ordered Lewis to serve 30 months incarceration followed

by 18 months post-release supervision to assist with getting Lewis “on

the right track” through mental health and substance abuse services.

See App. G, p. 1lla and 114a. The State then waited six months after

the victim’s death to initiate the subsequent prosecution for the same

conduct, on the eve of Lewis being released from prison on a term of

community-based supervision. See App. C, p. 22a and App. G, p. 78a.

Instead of being released from incarceration to begin community-based

rehabilitative interventions, she was remanded to the custody of the

county jail until counsel requested a bond hearing.

Over objection by the prosecutor, the district court released

Lewis on a “signature bond” which allowed to her be released pending

further hearing without requiring her to post a monetary bond. To be

clear, a defendant is not entitled to a signature bond and it is rare to

receive one on a higher level felony offense. See Neb. Rev. Stat. § 29-

901. Why wait six months to charge DUI/MVH? Is it a coincidence that

the filing of the charge coincided with Lewis’ release from custody,

thereby necessitating the continuation of her detention? Why object to

her release, when any concerns to “ensure the appearance of the

defendant” or regarding the “safety and maintenance of evidence or the

safety of victims, witnesses, or other persons in the community” would

be obviated by her supervision by the Adult Probation Office during

the post-release supervision phase of the first prosecution and sentence

imposed? Id. These questions were not asked of the government. Nor

were they addressed by the Nebraska Supreme Court.

Continued application of Diaz in inappropriate contexts

threatens unjust outcomes in the form of successive sentences, an

overhaul of the rule of finality, and gutting of double jeopardy

principles thereby undermining the United States Constitution.

Should this Court find that the holding in Diaz is a constitutionally

sound exception, it should also determine the scope of its applicability

and find that the Nebraska Supreme Court unreasonably expanded

17

the central holding of Diaz and wrongly applied it to the facts of Lewis’

case.

CONCLUSION

The Petition for Writ of Certiorari should be granted. This case

presents an opportunity for this Court to resolve a conflict between its

holding in Diaz v. United States, 223 U.S. 442 (1912) and in

Blockburger v. United States, 284 U.S. 299 (1932). Lewis urges this

Court to direct a proper application of Blockburger and reinstate the

dismissal of the criminal action against her or remand the matter with

instruction to dismiss.

RESPECTFULLY SUBMITTED:

CP7 om

Jedsica C. West, #24664

and

Thomas C. Riley, #13523

Douglas County Public Defender

Attorneys for Petitioner

18

CERTIFICATE OF WORD COUNT

I certify that the accompanying brief complies with S. Ct. R. 33,

in that it was prepared using Century Schoolbook 12-point typeface

and contains 6,772 words, excluding this certificate. This certificate

was prepared in reliance on the word-count function of Microsoft Word,

part of Microsoft Office Professional Plus 2016.

/s/ Jessica C. West, #24664

Assistant Public Defender