Petition — Turley v. Wyrick

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,, Supreme Coust, U. &,

‘“ FILED in |

AUG 19 1977

In THE

Supreme Court of the Unite QDAK, JR, CLERK

Octoper Term, 1977 ~*

No. i —

777246 «

Ernest TURLEY,

Petitioner,

DonaLp WyRIcK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Evaene H. Buper

American Civil Liberties

Union of Eastern Missouri

411 North 7th Street

St. Louis, Missouri 63101

BENJAMIN RoTH

American Civil Liberties

Union of Eastern Missouri

411 North 7th Street

St. Louis, Missouri 63101

JozeL M. Gora

American Civil Liberties

Union

22 East 40th Street

New York, New York 10016

Attorneys for Petitioner

TABLE OF CONTENTS

Page

Pable of Author itieGccccece>: -bcescccccccekhs

Opinions Be low e*eeeee#eee#ee#e#see#esei@esee#ee#eee#e#see#ee#ee#e54x.c51e@e#ee#e##e om

Jurisdiction eoeeeee#seee#eeee#s#ee*ee#seieseeee#eee#ee#ee#*#e##8nq@ee#ee#ee#ee#ee#e# on

Questions Presented... cccccccccccccescscseseed

Constitutional and Statutory

DPEGVUESISRS BWHVOLGTScccccccoccccooosos ew

STATEMENT OF THE Srtd666ee8 646060800666 6666660

REASONS FOR GRANTING THE WRIT............-L4

1. This Court should decided whether

Bartkus v. Illinois, 359 U.S. 121 (1959),

permitting successive prosecutions for

the same offense by federal and state

governments, has been so eroded by

subsequent decisions of this Court that

its continued authority must be

TFECONSIGELE]G ccccccccccccccccccoccsccosesseelhG

2. This Court should determine whether,

even if Bartkus still permits some suc-

cessive federal-state prosecutions for

the same offense, such prosecutions are

barred by the collateral estoppel doc-

trine of Ashe v. Swenson, 397 U.S. 436

(1970), where such governments are in

privity by virtue of having the same

interest in the prosecutions............20

ii.

3. The Court should determine whether,

in applying the principles of collateral

estoppel to a state prosecution follow-

ing a federal acquittal for the same

offense, it is necessary to examine

the transcript of the federal trial......28

CONCLUSION. ccc ccccseeseeeecescese “ene oe eeencee

Table of Authorities

Cases

Abbate v. United States,

359 U.S. 187 CIOS) cccccceccossoeseoscscone

Ashe v. Swenson, 397 U.S. 436 (1970).......

8, 15, 20, 21, 22, 23, 25, 27, 29

Bartkus v. Illinois, 359 U.S. 121 (1959)....

3, 13, 14, 15, 16, 17, 18, 19, 20, 24, 27

Benton v. Maryland, 395 U.S. 784 (169)......

8, 17, 18

Commonwealth v. Mills, 447 Pa. 168,

286 A.2d 638 (Pa. 1971).........20, 21, 22

Commonwealth v. Studebaker, Pa. ,

362 A.2d 336 SEBTE) coccccoososoecsococoens

Doherty v. United States, 94 F.2d 495

(8th Cas. RGGS) ccccccccocceoceseccosoocoese

Elkins v. United States, 364 U.S.

206 (1966) oc pcccccccscccocescoeccoosocooohl

iii.

Ferina v. United States, 340 F.2d 837

(8th Cir. Dt) dts bb Web 6446Oc00debe coseett

Furman v. Georgia, 408 US. 238 (1972).....27

Hudspeth v. Melville, 127 F.2d 363

(10th Cir. Ee

Martin v. Rose, 481 F.2d 658 (6th Cir.),

cert. denied, 414 U.S. 876 (1973).......18

Murphy v. Waterfront Commission, 378

U.S. 52 Ct hihi cnn ieee eee enn

Palko v. Connecticut, 302 U.S. 319

0 eee eT ee eee errs |

People v. Cooper, Mich. , 247

N.W.2d 866 (Mich. es 22

Screws v. United States, 325 U.S. 91

State v. Turley, 518 S.W.2d 207...........12

Stevens v. Marks, 383 U.S. 234 (1966).....17

Turley v. Adams, 404 U.S. 1024 (1972).....10

Turley v. Missouri, 421 U.S. 966 (1975)...12

United States v. Feinberg, 383 F.2d 60

(2d Cir. ee a

United States v. Jackson, 470 F.2d 684

(5th Cir.), cert.denied, 412 U.S. 951

ee ee Te

iv.

United States v. Johnson, 516 F.2d 209

(8th Cir.), cert. denied, 423 U.S.

859 (2197S) coccccesssccccccoscocesecoecceols

United States v. Petite, 361 U.S. 529

RGSS ccccocsocdoceseceseosecoesseocecscee

United States v. Sutton, 245 F.Supp. 357

(D. Md. 1965), aff'd, 363 F.2d 845

(4th Cir. 1966), cert. denied, 385 U.S.

LOIS (19BT) ccccccccccccececccccocoeseceese

Waller v. Florida, 397 U.S. 387 (1970)....18

United States Constitution

Fifth Amendment........3, 4, 8, 15, 17, 22

Fourteenth Amendment.....ccccccccccccceced

Statutes

18 U.S.C. §2113 Tp ccccoeeceeosoeeeese 4, 8

IG) coccecceccooccoceSs 8, 26

(£) wcccccccccsecccccccccced

28 VeBoGe GUBSS (1) cccccccceccsescoseseoovees

28 Vebeobeo | PPrrrrrTrTTT TrTrTrrTiTeTrTtrTT

Alaska Stat. §12.20.010 (1962)...........15

Ariz. Rev. Stat. §13-146 (1956)..........15

Cal. Penal Code §656 (1965) ......eeeeeeeelL5

Idaho Code Ann. §19-315 (1947)........+--15

Ill. Ann. Stat. Ch. 38, §3-4 (1961)......15

Ind. Ann. Stat. §9-215 (1956)........+2--15

Minn. Stat. Ann. §609.045 (1963).........15

Miss. Code Ann. §2432 (1956).....ccceceeelS

Mo. Rev. Stat. §560.120...cccccccccccecd, 9

. . . Bee EFS cccccccccccetse De 2

° . . BG BOO cccccccccecccceD, 27

Mont. Rev. Code §95-1711(4) (1973)........15

Nev. Rev. Stat. §171.070 (1963)..........15

N.Y. Code Crim. Proc. §139 (1958)........15

N.D. Cent. Code §29-03-13 (1960).........15

Okla. Stat. Ann. Tit. 21 §25 (1951)......15

Ore. Rev. Stat. §131.240 (1965)..........15

S.D. Comp. Laws §22-5-8 (1967)...........15

Tex. Code Crim. Proc. Art. 13.23 (1966)..15

Utah Code Ann. §76-1-25 (1953)........+6e15

Wash. Rev. Code Ann. §10.43.040 (1961)...15

Wis. Stat. Ann. §939.71 (1958)...........15

Others

Franck, An International Lawyer Looks at

the Bartkus Rule, 34 N.Y.U.L.Rev. 1096

EE a

Grant, anne valve Prosecutions by State

n w and British

oe Comparisons, 4 U.S.L.A.L.Rev. 1

i (iti tint eeedeensunccceoccoceccelii

Note, 45 Cornell LQ. 574 a

Note, 80 Harv.L.Rev. 1538 (1967)...........18

Note, 44 Minn.L.Rev. 534 | a

Pontikes, Dual Sovereignty and Double

Jeopardy: A Critique of Bartkus v.

Illinois and Abbate v. United States,

14 W.Res.L.Rev. 700 EE

? In The

Restatement of Judgments,(1942) ............24 SUPREME COURT OF THE UNITED STATES

October Term, 1977

3. PPyrrrrr? TP) ee ee ee Peer

OS ee ee a ee ee,

No. 77-

Schaefer, Unresolved Issues in the Law of

Double Jeopardy: Waller and Ashe, | ERNEST TURLEY,

58 Calif.L.Rev. 391 Qo FOS

Petitioner,

| v.

DONALD WYRICK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioner, Ernest Turley, respect-

fully prays that a writ of certiorari issue

to review the judgment of the United States

Court of Appeals for the Eighth Circuit,

entered on April 14, 1977, rehearing denied

on May 16, 1977, affirming the dismissal of

a habeas corpus petition and rejecting the

petitioner's claims that a state conviction,

based upon an offense for which he had pre-

| viously been acquitted in federal court,

violated the ban against Double Jeopardy.

Opinions Below

The opinion of the United States Court

of Appeals for the Eighth Circuit is reported

at 584 F.2d 840, and is set out in the Appen-

dix, infra, at pp. la-l14a. The opinion of

the United States District Court for the

Eastern District of Missouri is reported at

415 F.Supp. 87, and is set forth in the

Appendix, infra, at pp. 16a-19a. The opin-

ion of the Missouri Court of Appeals, St.

Louis District, affirming the petitioner's

conviction on direct appeal, is reported at

518 S$.W.2d 207, and is set forth in the

Appendix, infra, at pp. 2la-36a.

Jurisdiction

The judgment and per curiam opinion of

the United States Court of Appeals sought to

be reviewed was entered on April 14, 1977,

with Circuit Judge Lay filing a concurring

opinion. An order denying a petition for

rehearing was entered on May 16, 1977, stat-

ing that Circuit Judge Heaney would have

granted rehearing, and that Circuit Judge

Bright agreed with the views expressed in

Judge Lay's concurring opinion. The statu-

tory provision believed to confer jurisdic-

tion on this Court is 28 U.S.C. §1254(1).

ee AEE ee NR RS ES EN A 6 At A ee Aelia cn

Questions Presented

1. Whether the Double Jeopardy clause

of the Fifth Amendment prevents prosecution

of a defendant by a State after he has been

acquitted in a trial for the same offense in

a federal court, and, if so, whether Bartkus

v. Illinois, 359 U.S. 121 (1959) should be

reconsidered?

2. If the answer to Question No. 1 is

negative, does the Double Jeopardy clause

nevertheless prevent such a prosecution by

virtue of the doctrine of collateral estop-

pel where the two governments are in privity

through identity of interest in the respec-

tive prosecutions, and, if so, were the

United States and Missouri in such privity

here in successive federal and state prose-

cutions for the alleged armed robbery by

petitioner of a state bank insured by the

Federal Deposit Insurance Corporation?

3. Where a defendant has been acquitted

of bank robbery in a federal court and then

convicted for the same bank robbery in a

state court, is it required as a condition

for applying the doctrine of collateral es-

toppel that the transcript of the first or

the second trial or both be examined to

determine the issues decided?

Constitutional and Statutory

Provisions Involved

The Fifth Amendment to the Constitution

provides as follows:

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except

in cases arising in the land or

naval forces, or in the Militia,

when in actual service in time of

War or public danger; nor shall any

person be subject for the same

offence to be twice put in jeopardy

of life or limb; nor shall be com-

pelled in any criminal case to be

a witness against himself, nor be

deprived of life, liberty, or prop-

erty, without due process of law;

nor shall private property be

taken for public use, without just

compensation. (emphasis added)

Title 18, United States Code, Sections

2113(a), (d), and (f), as they were in effect

on June 11, 1970, the date of the robbery in-

volved herein, provided as follows:

Bank Robbery and incidental

crimes

(a) Whoever, by force and violence,

or by intimidation, takes, or

attempts to take from the person

or presence of another, any

property or money or any other

thing of value belonging to, or

in the care, custody, control,

management, or possession of, any

bank, or any savings and loan

association; or

Whoever enters or attempts to

enter any bank, or any savings and

loan association, or any building

used in whole or in part as a

bank, or as a savings and loan

association, with intent to commit

in such bank, or in such savings

and loan association, or building,

or part thereof, so used, any

felony affecting such bank or

such savings and loan association

and in violation of any statute

of the United States, or any

larceny--

Shall be fined not more than

$5,000 or imprisoned not more

than twenty years, or both.

* * *

(d) Whoever, in committing, or in

attempting to commit, any offense

defined in subsections (a) and (b)

of this section, assaults any

person, or puts in jeopardy the

life of any person by use of a

dangerous weapon or device, shall

be fined not more than $10,000 or

imprisoned not more than twenty-

five years, or both.

(f) As used in this section the

term “bank" means any member bank

of the Federal Reserve System, and

any bank, banking association,

trust company, savings bank, or

other banking institution organized

or operating under the laws of the

United States, and any bank the

deposits of which are insured by

the Federal Deposit Insurance

Corporation.

* + *

Section 560.120, Revised Statutes of

Missouri, Vol. 4, p. 4083, provides as

follows:

Robbery in the first degree

Every person who shall be convicted

of feloniously taking the property

of another from his person, or in

his presence, and against his will,

by violence to his person, or by

putting him in fear of some immed-

iate injury to his person; or who

Shall be convicted of feloniously

taking the property of another from

the person of his wife, servant,

clerk or agent, in charge thereof,

and against the will of such wife,

servant, clerk or agent by violence

to the person of such wife, servant,

clerk or agent, or by putting him or

ee ee

her in fear of some immediate injury

to his or her person, shall be ad-

judged guilty of robbery in the

first degree,

Section 560.135, Revised Statutes of

Missouri, Vol. 4, p. 4084, as it was in effect

on June 1l, 1970, the date of the robbery in-

volved herein, provided as follows:

Robbery by means of dangerous and

deadly weapons--penalty

Every person convicted of robbery

in the first degree by means of a

dangerous and deadly weapon shall

suffer death, or be punished by

imprisonment in the penitentiary

for not less than five years, and

every person convicted of robbery

in the first degree by any other

means shall be punished by imprison-

ment in the penitentiary for not

less than five years; every person

convicted of robbery in the second

degree shall be punished by impris-

onment in the penitentiary not

exceeding five nor less than three

years; every person convicted of

robbery in the third degree shall

be punished by imprisonment in the

penitentiary not exceeding five

years.

STATEMENT OF THE CASE

This is a proceeding for habeas corpus

relief filed on behalf of a Missouri state

prisoner who was convicted in a state court

of bank robbery after his acquittal in a

federal court on an indictment for the same

robbery. The petitioner contends that this

Missouri conviction violates the double jeo-

pardy clause of the Fifth Amendment, as

applied to the states by the Fourteenth

Amendment in Benton v. Maryland, 395 U.S.

784 (1969), and as construed in Ashe v.

Swenson, 397 U.S. 436 (1970).

The relevant facts are as follows.

On July 1, 1970, petitioner and one

Clarence Edward Haynes were indicted in the

United States District Court for the Eastern

District of Missouri, Eastern Division, on a

charge of robbery, by use of a dangerous

weapon, of the Laddonia State Bank in Miss-

ouri on June ll, 1970, in violation of 18

U.S.C. Section 2113(a) and (d). The bank

had been robbed by two armed robbers wearing

stocking masks, and the sole issue at the

trial in federal district court was whether

the petitioner was one of the two robbers.

There was conflicting testimony and evidence

on the issue. The jury returned a verdict of

not guilty, and a judgment of acquittal was

entered in petitioner's favor on November

23, 1970.

Thereafter, on January 4, 1971, the

Prosecuting Attorney of Audrain County,

Missouri, filed an information, later trans-

ferred on change of venue to the Missouri

Circuit Court for Warren County, charging

petitioner with the same armed robbery of

the Laddonia State Bank, of which he had

been acquitted in the federal court. The

charge was robbery in the first degree by

means of a dangerous and deadly weapon,

under R. S. Mo. Sections 560.120 and

560.135.

The federal and state indictments

were substantially identical, except that

the federal indictment alleged that the

deposits in the bank were insured by the

Federal Deposit Insurance Corporation,

the basis for federal jurisdiction, and

the state information additionally charged

the petitioner with prior convictions

under R. S. Mo. Section 556.280. This

latter charge did not involve the imposi-

tion of enhanced punishment. Rather, this

Missouri "second offense" statute is merely

a procedural device, whereby, if a person

is convicted of having committed a second

or subsequent offense, then sentencing is

by the judge rather than the jury.

10.

On January 15, 1971, petitioner filed

a motion to dismiss the charge pending in

the Missouri Circuit Court on the grounds

of double sengrey and collateral estoppel.

(T. 12, 14). The motion was overruled

on February 1, 1971, and the case was placed

on the trial calendar. Petitioner then

sought a writ of prohibition on these

grounds which was denied by the Supreme

Court of Missouri on May 10, 1971. (T. 18).

This Court denied certiorari on January

10, 1972. Turley v. Adams, 404 U.S. 1024

(1972).

-/ “?. " refers to the transcript of

the state e trial, which was made part of

the record in the proceedings below.

ll.

In March 1972, over his renewed objec-

tion, petitioner was tried in the state

court on the bank robbery charge. The trial

was virtually a rerun of the previcus trial

in the federal court. (App., infra, pp. 9a,

23a). The evidence showed that the two rob-

bers wore stocking masks, so that any identi-

fication of them was more difficult. (T. 54,

62-63). There was testimony from bank employ-

ees that the petitioner was one of the two

bank robbers, and further testimony that

Turley had allegedly been seen in Laddonia

the day before the robbery driving a car

thought to be the same as that used later for

the getaway. (T. 100). However, there was a

strong alibi defense consisting of detailed

evidence placing Turley in St. Louis at all

the critical times of the day of the robbery

and the day before. Some of that testimony

came from an Internal Revenue Agent, and

some from witnesses hostile to Turley, and

it was corroborated by documentary evidence.

(T. 209-210, 211, 213, 214, 215-216, 217-218,

226, 229-234, 240, 248-251, 256-258, 263-269,

274-275, 352-354). Nevertheless, the state

court jury returned a guilty verdict on March

30, 1972. Thereafter, the petitioner was

sentenced to twenty years' imprisonment.

The Missouri Court of Appeals, St. Louis

District, upheld petitioner's conviction for

armed robbery despite his renewec assertion

that the double jeopardy clause and the prin-

12.

ciples of collateral estoppel proscribed his

prosecution by the State of Missouri. State

v. Turley, 518 S.W.2d 207; (App., infra, pp.

2la-36a). The Supreme Court of Missouri

summarily denied petitioner's motion to

transfer the cause to that court, and this

Court denied certiorari. Turley v. Missouri,

421 U.S. 966 (1975).

Petitioner then filed this petition for

a writ of habeas corpus on February 18, 1976,

in the United States District Court for the

Eastern District of Missouri, pursuant to 28

U.S.C. §§ 2241 et seq. L/ The respondent

warden filed his response on March 18, 1976,

attaching, among other things, the transcript

of the state trial, but not of the federal

trial. On April 5, 1976, before petitioner

filed his traverse or other pleadings or

memoranda, the District Court entered its

Memorandum and Order dismissing the petition.

(App. infra, pp. 16a-19a). A motion for a

new trial was denied on May 12, 1976, and a

certificate of probable cause was issued on

June 10, 1976.

On appeal, considered without oral argu-

ment, the Eighth Circuit affirmed the denial

of habeas corpus relief in a per curiam opin-

ion. The Court of Appeals held that there

was nothing in this Court's decisions since

l/ It is conceded that state court remedies

had been properly exhausted. (App. infra,

p. 17a}.

13.

1959 "that casts a shadow on the validity of

the dual sovereignty doctrine enunciated in

Bartkus and Abbate." (App., infra, p. 4a).

The court did not explicitly pass upon peti-

tioner's claim that the collateral estoppel

doctrine reaches two different sovereigns

where there is privity through an ideriity

of interests, but the court did hold that

“the collateral estoppel doctrine does not

apply when different sovereigns and, thus,

different parties are involved in the Lliti-

gation.” (App., infra, p. 5a). The court

also rejected the petitioner's collateral

estoppel argument on the ground that the

petitioner had the burden of proving that

the relevant issues were resolved in his

favor at the previous trial, and that peti-

tioner had not met that burden because he

failed to introduce a transcript of his

federal trial in support of his motion to

dismiss the state charges. (App. infra,

p. 6a).

Circuit Judge Lay wrote a concurring

opinion in which he indicated that he felt

bound by opinions in the Eight Circuit and

elsewhere construing Bartkus v. Illinois, 359

U.S. 121 (1959), and Abbate v. United States,

359 U.S. 187 (1959), as barring a double

jeopardy claim under the dual sovereignty

doctrine. However, he was “not convinced

that subsequent decisions of the Supreme

Court have not fully eroded Bartkus and

Abbate..." (App., infra, p. 7a). After

carefully analyzing the issues, he concluded

with the following observation:

14.

As an intermediate appellate judge

I realize that it is not my singular

role to express opinion contrary to

established law. However, recogni-

tion of this judicial discipline

should not prevent one from express-

ing dismay in the use of stare

decisis to perpetuate an ‘justice.

(App., infra, p. 14a).

On April 28, 1977, petitioner filed a

timely petition for rehearing and suggestion

for rehearing en banc. This petition was

denied, with Circuit Judge Heaney dissenting

and Circuit Judge Bright expressing agreement

with the concurring opinion. (App., infra,

p. 15a).

REASONS FOR GRANTING THE WRIT

This case presents important questions

concerning the current validity and proper

reach of the "dual sovereignty” doctrine of

Bartkus v. Illinois, 359 U.S. 121 (1959).

The first issue is whether the underpinnings

of the doctrine have been so eroded by sub-

sequent decisions that the Court should

reconsider the continued vitality of that

doctrine.

The second issue is a more narrow one,

namely, whether there should be an exception

to the dual sovereignties rule where the

interests of the state government in the

subsequent prosecution are substantially the

15.

same as those underlying the federal statutes

pursuant to which a defendant has been tried.

The exception that we suggest follows

directly from the doctrine of collateral es-

toppel which this Court has held to be an

essential aspect of the Fifth Amendment's

double jeopardy clause. See Ashe v. Swenson,

397 U.S. 436 (1970). Recognition of such an

exception would remedy the injustices per-

petuated by Bartkus’ blanket approval of

successive federal-state prosecutions while

protecting the states' legitimate claims to

prosecutorial independence. Indeed, nineteen

states already have erected general statutory

bars against successive federal and state

prosecutorial for the same offense, an indic-

ation that the rule for which petitioner

contends would not undermine the states' law

enforcement processes. 2 In addition, the

Department of Justice has a policy against

2/ Alaska Stat. §12.20.010 (1962); Ariz.Rev.

Stat. §13-146 (1956); Cal. Penal Code §656

(1965); Idaho Code Ann. §19-315 (1947); Ill.

Ann.Stat. Ch. 38, §3-4 (1961); Ind. Ann.Stat.

§9=-215 (1956); Minn. Stat.Ann. §609.045 (1963);

Miss. Code Ann. §2432 (1956); Mont.Rev.Code

§95-1711(4) (1973); Nev.Rev.Stat. §171.070

(1963); N.Y. Code Crim.Proc. §139 (1958); N.D.

Cent.Code §29-03-13 (1960); Okla.Stat.Ann.Tit.

21 §25 (1951); Ore.Rev.Stat. §131.240 (1965);

S.D. Comp.Laws §22-5-8 (1967); Tex. Code Crim.

Proc.Art. 13.23 (1966); Utah Code Ann. §76-1-25

(1953); Wash. Rev.Code Ann. §10.43.040 (1961);

Wis. Stat.Ann. §939.71 (1958).

16.

successive state-federal prosecutions based

on the same transaction unless a compelling

federal interest is involved. See United

States v. Petite, 361 U.S. 529, 530 (1960).

Finally, the stark facts of this case

present an appropriate context for the Court

to consider these issues. The federal auth-

orities prosecuted the petitioner for the

robbery of the bank, but were unable to per-

suade the jury which found the petitioner

not guilty. The state officials then tried

their hand, with the same witnesses, the

same testimony, and the same evidence, but

this time with success. As Circuit Judge

Lay observed below: "The facts are siaqni-

ficant here; they eloquently plead the

petitioner's case. They serve to demonstrate

the fallacy in barring the claim of double

jeopardy under the dual sovereignty doctrine."

(App., infra, p. 8a).

1. This Court should decide whether Bartkus

v. Illinois, 359 U.S. 59), permit-

ting successive prosecutions for the same

offense by federal and state governments,

has been so eroded by subsequent deci-

sions of this Court that its continued

authority must be reconsidered.

In 1959, this Court held, ina five-to-

four decision, that an acquittal on a prior

federal charge of bank robbery would not

prohibit a state court from trying the de-

fendant for a state offense arising from

those identical facts. Bartkus v. Illinois,

17.

359 U.S. 121 (1959). The majority opinion

of Mr. Justice Frankfurter relied on the

rule of Palko v. Connecticut, 302 U.S. 319

(1937), that the double jeopardy proscrip-

tion of the Fifth Amendment did not apply

to the States, reasoned that "the claim of

unconstitutionality must rest upon the due

process clause of the Fourteenth Amendment,”

359 U.S. at 123, 124, and concluded that the

successive prosecutions in federal and state

courts did not deprive the petitioner of due

process of law.

But in Benton v. Maryland, 395 U.S. 784

(1969), which involved successive prosecu-

tions in state court, this Court overruled

Palko and held that the Fifth Amendment's

double jeopardy clause applies directly to

the states, and prohibited such prosecutions.

Benton thus undermined a primary underpinning

of the Bartkus dual sovereignty doctrine. 3/

3 Indeed, the doctrine had previously been

somewhat eroded by the demise of other state

“exemptions” which turned on a dual sovereign-

ty notion, for example, the "silver platter"

doctrine overturned in Elkins v. United States,

364 U.S. 206 (19650), and the holding in Murphy

v. Waterfront Commission, 378 U.S. 52, 77-78

(1964), that the constitutional privilege

against self-incrimination protects a state

witness under federal law and a federal wit-

ress under state law. Such decisions prompt-

ed Mr. Justice Harlan and Mr. Justice Stewart

to observe that the "two sovereignties" con-

cept had effectively been abolished. See

Stevens v. Marks, 383 U.S. 234, 250 (1966)

(concurring opinion).

18.

In 1970, after Benton, this Court abol-

ished the dual sovereignty distinction

between municipalities and states, noting

that the distinction had become an anachron-

ism. Waller v. Florida, 397 U.S. 387 (1970).

Based on such decisions, numerous scholars

have severely criticized the Bartkus doctrine,

and urged that it be reconsidered. 4/ Althugh

the issue has frequently been tendered to

this Court, certiorari has consistently been

denied. See, e.g., United States v. Jackson,

470 F.2d 684 (5th Cir.), cert. denied, 412

U.S. 951 (1973); Martin v. Rose, 481 F.2d

4/ See, Schaefer, Unresolved Issues in the

Law of Double Jeopardy: Waller and Ashe, 58

Calif. L.Rev. 391, 500-401 (1970); Pontikes,

Dual Sovereignty and Double Jeopardy: A

Critique of Bartkus v. Illinois and Abbate v.

United States, 14 W.Res.L.Rev. 700 (1963);

Franck, An International Lawyer Looks at the

Bartkus Rule, 34 N.Y.U.L.Rev. 1096 (1959);

Note, 80 Harv.L.Rev. 1538 (1967); Note, 44

Minn.L.Rev. 534 (1960); Note, 45 Cornell L.O.

574 (1960); see also Grant, Successive Prose-

cutions by State and Nation: Common Law _ and

British Empire Comparisons, 4 U.C.L.A.L.Rev.

1 (1956).

19.

658 (6th Cir.), cert. denied, 414 U.S. 876

(1973); United States v. Johnson, 516 F.2d

209 (8th Cir.), cert. denied, 423 U.S. 859

(1975).

Despite these criticisms of the dual

sovereignty doctrine, there is one possible

"practical justification" for permitting

successive trials for the same crime. See

Bartkus v. Illinois, supra, 359 U.S. at 136-

37. Referring to Screws v. United States,

325 U.S. 91 (1945), Mr. Justice Frankfurter

argued that the imposition by the federal

courts of the minor punishments permitted

by the civil rights statutes at issue in

Screws would preclude the state trial of

grave offenses including murder, unless the

dual sovereignty doctrine is preserved. But

the civil rights statutes were enacted

because of apprehension that the states

would not prosecute cases in which racial

discrimination had shaped the crime. Absent

a dual sovereignty rule, the more likely

danger is, not that the federal authorities

would block the state, but rather that fed-

eral prosecution would be blocked by an un-

warranted state acquittal or a token state

punishment of a state official who had

violated a person's constitutional rights.

This suggests that there might be areas

where the interests of the United States

and of the several states are substantially

different, and some accomodation to such

interests might be required. But in the

great bulk of cases of overlapping juris-

diction, however, the federal and state

interests are substantially identical, as

20.

here, and to permit successive prosecutions

in those cases is to present criminal defend-

ants with a cruel mockery of the spirit

behind the double jeopardy clause.

2. This Court should determine whether, even

if Bartkus still permits some successive

federal-state prosecutions for the same

offense, such prosecutions are barred by

the collateral estoppel doctrine of Ashe

V. Swenson, 397.U.5. 4360 (1970), where

such governments are in privity by virtue

of having the same interest in the prose-

cutions. —

A total overruling of Bartkus might

create the dilemma of possible interference

between state and federal governments in

pursuing their respective interests in prose-

cution, as against the inequity of permitting

both to prosecute a defendant for the same

offense. The solution to this dilemma is to

forbid successive prosecutions where state

and federal interests are substantially iden-

tical.

This is exactly what was done by the

Supreme Court of Pennsylvania in Commonwealth

v. Mills, 447 Pa. 168, 286 A.2d 638 (Pa.

1971). After concluding that Bartkus still

controlled the federal constitutional issue,

that court nevertheless ruled, on public

policy grounds, that "a second prosecution

and imposition of punishment for the same

offense will not be permitted unless it

21.

appears from the record that the interests

of the Commonwealth of Pennsylvania and the

jurisdiction which initially prosecuted and

imposed punishment are substantially differ-

ent." 286 A.2d at 642. The defendant there

had pleaded guilty in federal court to bank

robbery and assault; the Pennsylvania court

reversed his state conviction for firearms

offenses and assault, based on the same acts

as those federally prosecuted, because it

found no reason to believe that the inter-

ests of Pennsylvania had not been Sasay

protected by the federal prosecution. 3/

In another federal-state prosecutions

case involving a federally insured state

bank, the Supreme Court of Michigan also

embraced an “interests analysis” approach.

People v. Cooper, __ ‘Mich. ___, 247 N.W.2d

866 (Mich. 1976). The Cooper court held that

the approach was required by the state con-

stitution's guarantee against double jeopardy.

5/ It should be noted that in Commonwealth

v. Studebaker, Pa. __, 362 A.2d 336

(1976), the Supreme Court of Pennsylvania

recently held that the Mills “interest analy-

sis" did not apply where the successive

federal-state trials are for separate and

distinct offenses, namely, arson and mail

fraud, the latter involving a special fed-

eral interest. The Court also declined, as

it had in Mills, to extend the collateral

estoppel doctrine of Ashe v. Swenson, to

different "parties."

22.

In his concurring opinion below, Judge Lay

quoted the Cooper test and found it "deter-

minative" of the substantive issue here.

The test is as follows:

Whether the maximum penalties of the

statutes involved are greatly dis-

parite, whether some reasons exist

why one jurisdiction cannot be

entrusted to vindicate fully

another jurisdiction's interest

in securing a conviction, and

whether the differences in the

statutes are merely jurisdictional

or are more substantive.

247 N.W.2d at 871.

The courts in Mills and Cooper based

their "interests analysis" approach on

grounds other than the double jeopardy

clause of the federal Constitution. But the

logic of such approach is identical to that

of the concept of privity, and privity, in

turn, is a well-established and developed

aspect of collateral estoppel.

In Ashe v. Swenson, 397 U.S. 436 (1970),

this Court determined that the doctrine of

collateral estoppel is embodied in the Fifth

Amendment guarantee against double jeopardy.

The Court noted that, "(a)lthough first dev-

eloped in civil litigation," collateral

estoppel had long been an "established rule

of federal criminal law." The primary

innovation of Ashe was to give the doctrine

constitutional status, and that aspect of

the ruling is crucial to this case.

23.

Ashe defines collateral estoppel as

follows: "“...when an issue of ultimate fact

has once been determined by a valid and final

judgment, that issue cannot again be litigat-

ed between the same parties in any future

lawsuit.” 397 U.S. at 443. The Ashe Court

referred to “the same parties" because they

were the same in the case before it. The

question here is whether the full definition

should include privies of the parties in

litigation in a manner so that the United

States and Missouri, as successive parties

to the prosecutions of petitioner, were in

such privity that the doctrine of collateral

estoppel applies.

The meaning of privity in civil litiga-

tion is well-established. The Restatement

of Judgments, §83 (1942) defines the word

privy to include “those who control an action

although not parties to it; [and] those whose

interests are represented by a party to the

action..." Regarding states as parties the

Restatement, §78d, declares that the rules

of res judicata and collateral estoppel

“apply with reference to them as in the case

of private persons."

The Restatement of Judgments does not

deal with the effects of criminal judgments.

In criminal cases in which it has figured,

however, the concept of "privity" - like

other aspects of collateral estoppel - has

derived its meaning from older usages in

civil litigation. "Privy" in the Restate-

ment's first sense, "those who control an

24.

action although not parties to it,” is

already a firmly established notion in fed-

eral double jeopardy law. See, e.g., Bartkus

v. Illinois, supra, 359 U.S. at 123-124. In

this case, the federal government, acting

through the F.B.I., developed the case against

the petitioner, and, after he was acquitted

in federal court, it handed over its evidence

and witnesses to the State prosecutors.

(App. infra, pp. 8a-9a, 2la-23a). While this

suggests that the federal government had a

great deal to do with the State prosecution,

it cannot necessarily be concluded that it

controlled that prosecution. Cf., Ferina v.

United States, 340 F.2d 837 (8th Cir. 1965).

Thus, privity between the two governments

must also be sought in the identity of their

interests.

The second meaning of “privy” in the

Restatement - that of an identity of inter-

ests - has also frequently figured in crim-

inal litigation. In United States v. Sutton,

245 F.Supp. 357 (D. Md. 1965), aff'd, 353

F.2d 845 (4th Cir. 1956), cert. denied, 385

U.S. 1014 (1967), for example, the court

applied a collateral estoppel analysis in

terms of the identity of interest of the

state and federal governments, but concluded

that the respective governmental interests

were separate. Similarly, in United States

v. Feinberg, 383 F.2d 60 (2d Cir. 1967), the

court applied the analysis, but again found

the two governments to have interests which

were separate and distinct. In both cases,

the protection of interstate commerce was

the distinctive federal interest which was

real and immediate.

25.

Here, however, the federal jurisdiction

to protect banks having a federal connection

does not rest on the commerce power; it

stems, instead, from the “necessary and

proper” clause, as related to the power to

coin money and to borrow on the credit of

the United States. Hudspeth v. Melville,

127 F.2d 353, 375 (10th Cir. 1942). No one

has ever suggested that that power displaces

or changes the states' interest in banking.

Petitioner was first tried in federal

court for the robbery of the Laddonia State

Bank because its deposits were insured by

the Federal Deposit Insurance Corporation.

The federal government exercises authority

through the F.D.I.C., comparable to state

police power. Doherty v. United States,

94 F.2d 495 (8th Cir. 1938). That the bank

was federelly insured had nothing to do with

the robbery nor with petitioner's alleged

participation; at the time of the robbery

it was no more than a continuing historical

fact. The powers of che United States and

of Missouri over the bank derived from dif-

ferent sources, but their interests in

protecting the bank were identical. After

that interest had been asserted in the

federal trial, its reassertion in the state

trial was nothing more nor less than a re-

fined, better-educated attack on the defend-

ant made after the dry run of the first

trial, a practice roundly condemned as double

jeopardy in Ashe v. Swenson, supra.

In Judge Lay's view, the interest of

both jurisdictions was the same, namely,

26.

"to insure the safety of persons and protect

private property." (App., infra, p. 13a).

The notion that the United States preserves

only "the federal banking system" by pro-

tecting banks insured by the F.D.I.C. is

belied by the fact that virtually every bank

in America is so insured. As insurer of

their deposits, the federal government was

as concerned as Missouri that her citizens'

money not be lost. And with regard to the

respondent's argument that Missouri had a

separate interest in protecting her people

from violence, as Judge Lay pointed out

below this contention overlooks the fact

that the federal indictment included a

charge under 18 U.S.C. §2113(d), referring

specifically to jeopardizing life with a

dangerous weapon.

Finally, in terms of the maximum penal-

ties under the respective statutes - under

the instant federal statute, §2113(d), the

maximum penalty is twenty-five years impris-

onment and a $10,000 fine; under the Missouri

statute, Mo. Rev. Stat. §560.135, the maximum

penalty available as a practical matter was

life imprisonment with immediate parole

eligibility. 7/

6/ Of the approximately 740 banks in Miss-

ouri in 1970, the year of the robbery, all

but four were insured by the F.D.I.C.

7/ At the time of the robbery in 1970 and

the state court trial in March 1972, R.S.Mo.

§560.135, by its terms, provided for the

death penalty for the (Continued next page)

27.

Thus, the Court of Appeals in this

case, in refusing to rule that Ashe v.

Swenson requires an exception to the dual

sovereignty rule with respect to those

cases in which the two sovereigns are in

privity through identity of interest, has

either decided a federal question in a way

in conflict with Ashe, or has decided an

important question of federal law which

has not been, but should be, settled by

this Court, namely, whether Ashe does

indeed so restrict the scope of Bartkus

v. Illinois.

crime charged. But the state had decided,

before the trial began, to take the question

of punishment away from the jury, where it

normally resides in Missouri, by alleging

previous convictions under R.S.Mo. §556.280,

thereby putting the sentence \p to the judge.

Moreover, before the judge imposed the sen-

tence in October 1972, this Court had decid-

ed Furman v. Georgia, 408 U.S. 238 (1972),

and it was generally recognized in Missouri

that this had the effect of invalidating the

death penalty provision of R.S. §556.280.

28.

3. The Court should determine whether, in

applying the principles of collateral

estoppel to a state prosecution follow-

ing a federal acquittal for the same

offense, it is necessary to examine the

transcript of the federal trial.

As an additional ground for rejecting the

petitioner's claims, and without the District

Court or the respondent raising the issue, the

Court of Appeals, sua sponte, held that by not

introducing a copy of the transcript of the

federal trial, the petitioner had failed to

prove that the issues in the state trial were

resolved in his favor. We would respectfully

suggest that this ruling is a makeweight,

since the introduction of the federal trans-

cript would have served no useful purpose,

and, in any event, the deficiency could easily

have been remedied.

The federal trial transcript was unneces-

sary because it has never been seriously

questioned that both trials were for the same

bank robbery, involved virtually the same

evidence, looking toward the identical issue

of ultimate fact - the identity of the second

bank robber. Indeed, even the account of the

case in the opinion of the Missouri Court of

Appeals makes plain that the federal jury must

have decided that the petitioner was not one

of the bank robbers, or, at the very least,

that there was reasonable doubt that he was.

Scrutiny of the federal transcript would have

added nothing to the issues.

29.

As this Court indicated in Ashe v.

Swenson, supra, the inquiry is a "practical"

one, and the purpose of examining the record

is to “conclude whether a rational jury could

have grounded its verdict upon an issue other

than that which the defendant seeks to fore-

close from consideration." 397 U.S. at 444.

The particular issues in Ashe required scrut-

iny of the transcripts, but here it would

hardly be practical to search the federal

transcript to determine whether the petitioner

was acquitted because the jury did not believe

the bank was insured by the F.D.I.C.; yet

that was the only factual issue peculiar to

the federal trial.

30.

CONCLUSION

For the reasons set forth herein, the

writ of certiorari should be granted.

Respectfully submitted,

EUGENE H. BUDER

American Civil Liberties

Union of Eastern Missouri

411 North 7th Street

St. Louis, Missouri 63101

BENJAMIN ROTH

American Civil Liberties

Union of Eastern Missouri

411 North 7th Street

St. Louis, Missouri 63101

JOEL M. GORA

American Civil Liberties

Union

22 East 40th Street

New York, New York 10016

Attorneys for Petitioner*/

August 1977

+ Counsel wish to express their apprecia-

tion to Willie Forbath, a student at the

Yale Law School, for his assistance in the

preparation of this petition.

APPENDIX

la.

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

United States Court of Appeals

For The Eighth Circuit

No. 76-1538

Ernest Turley,

* Appeal From the

Appellant, « United States

Ve * District Court for

Donald Wyrick, «x the Eastern District

x of Missouri.

Appellee.

Submitted: February 10, 1977

Filed: April 14, 1977

Before LAY, ROSS and WEBSTER, Circuit Judges.

PER CURIAM.

Ernest Turley appeals from the District

Court's” denial of his petition for a writ

of habeas corpus pursuant to 28 U.S.C. §2554.

We affirm.

On June 11, 1970, two armed men robbed

the Ladonia State Bank in Audrain County,

Missouri, of approximately $13,000. On July

1 The Honorable John K. Regan, United States

District Court for the Eastern District of

Missouri.

2a.

1, 1970, petitioner and one Haynes were in-

dicted by a grand jury of the United States

District Court for the Eastern District of

Missouri and charged with robbing the bank

in violation of 18 U.S.C. §2113(a) and (d).

Trial was had before a jury, which returned

a verdict of not guilty on November 23,

1970.

On January 4, 1971, the prosecuting

attorney of Audrain County, Missouri, filed

an information charging petitioner with

robbery in the first degree by means of a

dangerous and deadly weapon, in violation

of Mo. Rev. Stat. §§560.120 and 560.135.

Petitioner moved to dismiss, alleging that

his prior federal acquittal barred a subse-

quent prosecution arising out of the same

act. The motion was overruled, and the

Missouri Supreme Court denied petitioner's

application for a writ of prohibition. The

Supreme Court denied certiorari. Turley v.

Adams, 404 U.S. 1024 (1972). On March 30,

1972, a jury found petitioner guilty of rob-

bery in the first degree, and he was sen-

tenced to twenty years imprisonment. The

conviction was affirmed on appeal. State

v. Turley, 518 S.W.2d 207 (Mo. App. 1974),

cert. denied, 421 U.S. 966 (1975).

On February 18, 1976, petitioner filed

a petition for a writ of habeas corpus. The

District Court denied the petition. Turley

v. Wyrick, 415 F.Supp. 87 (E.D. Mo. 1976).

Petitioner now timely appeals and alleges

three related, but distinct, grounds for

3a.

relief: (1) that the "dual sovereignty"

doctrine permitting successive state and

federal prosecutions for the same act has

been “eroded" by subsequent decisions and

should be discarded; (2) that the doctrine

of collateral estoppel enunciated in Ashe

v. Swenson, 397 U.S. 436 (1970), bars the

state from relitigating issues decided in

petitioner's favor at the prior federal

trial; and (3) that the state is bound to

observe the federal acquittal by virtue of

the full faith and credit clause, U.S.

Const., Art. IV, §1; or by virtue of 28

U.S.C. §1738.

A. "Dual Sovereignty"

It is a basic principle of federalism

that successive prosecutions by the state

and federal governments do not constitute

double jeopardy. See Bartkus v. Illinois,

359 U.S. 121, rehearing denied, 360 U.S.

907 (1959); Abbate v. United States, 359

U.S. 187 (1959); United States v. Lanza,

260 U.S. 377 (1922). This principle is

based on the concept of "dual sovereignty"

~- i.€., one act may constitute separate

and distinct offenses against both the

state and federal governments. Thus, a

defendant who is prosecuted by both the

state and federal governments is not twice

put in jeopardy for the same offense.

Petitioner contends that subsequent

cases have eroded the dual sovereignty

doctrine. He places particular reliance

4a.

upon Benton v. Maryland, 395 U.S. 784 (1969),

which overruled Bartkus v. Illinois to the

extent that Bartkus held that the Fifth

Amendment guarantee against double jeopardy

does not apply to the states. We find

nothing in Benton v. Maryland, however,

that casts a shadow on the validity of the

dual sovereignty doctrine enunciated in

Bartkus and Abbate.

Petitioner's reliance on Waller v. Flor-

ida, 397 U.S. 387 (1970); Murphy v. Water-

front Comm'n, 378 U.S. 52 (1964); and Elkins

v. United States, 364 U.S. 206 (1960), is

similarly misplaced. None of those cases

dealt with the double jeopardy issue in the

context of successive federal-state prosec-

utions, and we find nothing in those cases

which indicates that the Supreme Court no

longer adheres to the dual sovereignty

doctrine.

In decisions subsequent to Waller,

Elkins and Murphy, this Court has consis-

tently upheld the validity of the dual

sovereignty doctrine. Sappington v. United

States, 523 F.2d 858, 860 (8th Cir. 1975);

United States v. Johnson, 516 F.2d 209, 212

& n.3 (8th Cir.), cert. denied, 423 U.S. 859

(1975); United States v. Delay, 500 F.2d

1360, 1362 (8th Cir. 1974); United States

v. Synnes, 438 F.2d 764, 773 (8th Cir. 1971),

vacated on other grounds, 404 U.S. 1009

(1972). The other circuits are in agreement.

See, e.g., Martin v. Rose, 481 F.2d 658,

659-60 (6th Cir.), cert. denied, 414 U.S.

876 (1973); United States v. Jackson, 470

5a.

F.2d 684, 689 (5th Cir. 1972), cert. denied,

412 U.S. 951 (1973); United States v. Crosson,

462 F.2d 95, 103 (9th Cir.), cert. denied,

409 U.S. 1064 (1972); Goldsmith v. Cheney,

447 F.2d 624, 628 n. 3 (10th Cir. 1971). We

are apprised of no reason to depart from the

sound logic of these cases.

B. Collateral Estoppel

Petitioner's second contention is that

the doctrine of collateral estoppel enun-

ciated in Ashe v. Swenson, supra, barred

the state's prosecution in the instant case.

In Ashe, the Court held:

(W]hen an issue of ultimate fact has

once been determined by a valid and

final judgment, that issue cannot again

be litigated between the same parties

in any future lawsuit.

Id. at 443 (emphasis added). As the above-

quoted language indicates, the flaw in

petitioner's argument is that the collateral

estoppel doctrine does not apply when dif-

ferent sovereigns and, thus, different

parties are involved in the litigation.

United States v. Johnson, supra, 516 F.2d

at 21l; Ferina v. United States, 340 F.2d

837, 839 (8th Cir.), cert. denied, 381 U.S.

902 (1965). See also United States v.

Brown, No. 76-1335 (8th Cir., Jan. 17, 1977),

slip op. at 11; United States v. Kills Plenty,

466 F.2d 240, 243 (8th Cir. 1972), cert.

6a.

, 2

denied, 410 U.S. 916 (1973).

C. Full Paith and Credit

Petitioner's final contention is as un-

persuasive as it is novel. He alleges that

his prosecution by the State of Missouri

amounted to a denial of full faith and credit

to the federal judgment of acquittal. The

federal judgment, however, only determined

é Petitioner's collateral estoppel argument

fails for yet another reason. A defendant

claiming an estoppel has the burden of prov-

ing what issues were necessarily decided in

his favor at his prior trial. See., e€.g.,

United States v. Cala, 521 F.2d 605, 608

(2d Cir. 1975); United States v. Smith, 446

F.2d 200, 203 (4th Cir. 1971). In the in-

stant case, petitioner failed to introduce

a transcript of his federal trial in support

of his motion to dismiss the state charge.

Such failure makes it impossible for a court

to ascertain the issues previously deter-

mined, and thus fails to meet the burden of

proof. See, e.g., United States v. Smith,

supra; United States v. Tierney, 424 F.2d

643, 645 (9th Cir.), cert. denied, 400 U.S.

850 (1970); United States v. Friedland, 391

F.2d 378, 382 (2d Cir. 1968), on remand, 316

F.Supp. 459 (S.D.N.Y. 1970), aff'd, 441 F.2d

855 (2d Cir.), cert. denied, 404 U.S. 867

(1971).

7a.

that petitioner did not violate 18 U.S.c.

§ 2113(a) and (d); it did not determine

whether petitioner violated Mo. Rev. Stat.

§§ 560.120 and 560.135. There was thus no

denial of full faith and credit. The re-

mainder of petitioner's allegation in this

regard is merely a restatement of his col-

lateral estoppel argument, discussed supra.

Having found no merit in petitioner's

arguments, we affirm the order of the Dist-

rict Court.

LAY, Circuit Judge, Concurring.

I concur in the result reached. I am

bound by the numerosity of opinions in this

circuit and elsewhere, cited by Judge

Webster, which construe Bartkus v. Illinois,

359 U.S. 121 (1959), and Abbate v. United

States, 359 U.S. 187 (1959), as barring a

double jeopardy claim under the dual sov-

ereignty doctrine.

Upon further reflection, however, I am

not convinced that subsequent decisions! of

the Supreme Court have not fully eroded

Bartkus and Abbate and that the double jeop-

ardy defense should be sustained under the

1 see Ben*on v. Maryland, 395 U.S. 784

(1969); Waller v. Florida, 397 U.S. 387

(1970); Murphy v. Waterfront Comm'n, 378

U.S. 52 (1964); and Elkins v. United States,

364 U.S. 206 (1960).

8a.

facts of this case. Recent state court

decisions have explored the question of

successive federal-state prosecutions for

the same crime and have found the under-

pinnings of Bartkus and Abbate unconvincing.

See People v. Cooper, ___ Mich. ___, 247

N.W.2d 866 (1976); Commonwealth v. Mills,

447 Pa. 168, 286 A.2d 638 (1971); and State

v. Fletcher, 22 Ohio App.2d 83, 259 N.E.2d

146 (1970), reversed, 26 Ohio St.2d 221,

271 N.E.2d 567 (1971), cert. denied sub non.,

Walker v. Ohio, 404 U.S. 1024 (1972).

The facts are significant here; they

eloquently plead the petitioner's case. They

serve to demonstrate the fallacy in barring

the claim of double jeopardy under the dual

sovereignty doctrine. The interests sought

to be protected by the federal law are not

substantially different than those sought to

be protected by the state law. The result

of applying the dual sovereignty doctrine in

this case is that the interests of the state

and federal government are amply protected

and the interests of the individual are ig-

nored. Tne double jeopardy clause was

written for the protection of the individual

not the state or federal government.

In the instant case around noon on June

ll, 1970, the Laddonia State Bank was robbed

of approximately $13,000 by two armed robbers

wearing stocking masks. The first robber

forced a bank employee to fill a sack with

money from the cash drawer, while the second

robber covered him from the lobby. After

9a.

three bank employees tentatively identified

the petitioner as strongly resembling the

second robber, the FBI arrested him. A fed-

eral grand jury indicted the petitioner with

robbing the Laddonia State Bank in violation

of 18 U.S.C. § 2113(a) and (d).

At the trial four bank employees identi-

fied petitioner as the second robber. Two

other witnesses placed petitioner in Laddonia

the day and morning before the robbery. Three

defense witnesses testified that petitioner

was in St. Louis the day of the robbery. The

alibi was supported by documentary evidence.

The federal jury acquitted petitioner. He

was subsequently arrested on a state charge of

robbery. Mo. Rev. Stat. §§ 560.120 and 560.135

(1969). At the state trial the same six wit-

nesses identified the petitioner and the three

defense witnesses testified that the petitioner

was in St. Louis the day of the robbery. The

same documentary proof corroborating petition-

er's alibi was given. The state jury found

the petitioner guilty.

In Commonwealth v. Mills, 447 Pa. 168,

286 A.2d 638, 641 (1971), the court barred

successive federal-state prosecutions for

bank robbery stating:

It appears to us that the only pen-

ological justification for permitting

a second prosecution and punishment for

the same offense even where different

sovereigns are involved is out and out

punishment, and we certainly hope that

10a.

at this late date in the history of

the development of the penal system

of this Commonwealth and the Nation,

that incarceration for a criminal act

stands on stronger footing than -- an

eye for an eye.

The court in Mills perceived that the

underlying rationale of Bartkus was federal-

ism -- the need to maintain strong state as

well as federal systems of justice. This

concern arises from a fear that without re-

cognition of the dual sovereignty doctrine

either the state or federal government could

prevent the effective administration of jus-

tice by the other.?

2 It should be noted that the Supreme Court

of Pennsylvania has recently limited its

decision in Commonwealth v. Mills, 447 Pa.

168, 286 A.2d 638 (1971). In Commonwealth v.

Studebaker, Pa. __, 362 A.2d 336 (1976),

the court limited the Mills approach to suc-

cessive prosecutions for the "same offense"

and refused to expand the doctrine of collat-

eral estoppel beyond the "same parties."

3 For law review articles discussing the

federalism basis of the dual sovereignty doc-

trine see Brant, Overruling Bartkus and Abbate:

A_New Standard for Double Jeopardy, 11 Washburn

L.J. 188 (1972); Schaefer, Unresolved Issues in

the Law of Double Jeopardy: “Waller and “Ashe, 58

Calif. L. Rev. 391 (1970); Fisher, Double Pros-

ecution by State and Federal Governments:

Another Exercise in Federalism, 80 Harv. L. Rev.

1538 (1967).

lla.

In his dissenting opinion in Bartkus,

supra, 359 U.S. at 155-58, Justice Black

soundly criticized this argument:

The Court, without denying the

almost universal abhorrence of such

double prosecutions, nevertheless

justifies the practice here in the

name of “federalism." This, it seems

to me, is a misuse and desecration of

the concept. Our Federal Union was

conceived and created "to establish

Justice” and to “secure the Blessings

of Liberty," not to destroy any of

the bulwarks on which both freedom

and justice depend. We should, there-

fore, be suspicious of any supposed

“requirements” of "federalism" which

result in obliterating ancient safe-

guards. I have been shown nothing in

the history of our Union, in the

writings of its Founders, or elsewhere,

to indicate that individual rights

deemed essential by both State and

Nation were to be lost through the

combined operations of the two govern-

ments. Nor has the Court given any

sound reason for thinking that the

successful operation of our dual

system of government depends in the

slightest on the power to try people

twice for the same act.

Ultimately the Court's reliance on

federalism amounts to no more than

12a.

the notion that, somehow, one act be-

comes two because two jurisdictions

are involved. Hawkins, in his Pleas

of the Crown, long ago disposed of a