X. FEDERAL-STATE RELATIONS AND DUAL
SOVEREIGNTY
Former prosecution in one jurisdiction does not bar
prosecution in another jurisdiction because double
jeopardy guarantees are implicated only by the efforts of
a single sovereign. State v. Cooper, 211 N.J. Super. 1 (App.
Div. 1976), certif. denied, 105 N.J. 525 (1986). The
Criminal Justice Code specifies the circumstances when
former prosecution in the federal district court will bar
later prosecution in New Jersey courts. See N.J.S.A.
2C:1-11. Any bar resulting from former prosecution in
another state is purely discretionary. See N.J.S.A. 2C:1-
3f; State v. Ellis, 280 N.J. Super. 533 (App. Div. 1995).
In Petite v. United States, 361 U.S. 529, 80 S.Ct. 450,
4 L.Ed.2d 490 (1960), the Supreme Court had
prohibited federal prosecution for crimes arising from the
same transaction for which the State has already
prosecuted and punished a person, unless compelling
reasons exist for federal prosecution. In Rinaldi v. United
States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977),
the Court held that the Petite policy should be followed
and the charges dismissed if urged by the government,
whether the proceedings were instituted by inadvertence
or prosecutorial misconduct.
Health v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88
L.Ed.2d 387 (1985). Describing the dual sovereignty
doctrine, the Court explained that double jeopardy
protection is inapplicable when separate governments
prosecute the same defendant, because the defendant has
offended both sovereigns. The Court noted that
although the doctrine ordinarily comes into play when
one sovereign is the federal government and the other
sovereign is a state, the doctrine also applies when two
states seek to prosecute a defendant for a single offense.
However, the Court continued, for purposes of the
doctrine, a state and any of its political subdivisions (e.g.,
a municipality) are not separate sovereigns, and only one
prosecution may occur with respect to a single offense
against two such units. Waller v. Florida, 397 U.S. 387,
90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); see also State v.
Dively, 92 N.J. 573 (1983).
In State v. Cooper, 211 N.J. Super. 1 (App. Div.
1976), certif. denied, 105 N.J. 525 (1986), defendants
claimed that their conspiracy convictions in federal court
for participation in an enterprise engaged in racketeering
activity barred any subsequent state prosecution for
conspiracy to commit robbery. The Court ruled that
defendants’ federal RICO conspiracy convictions
involved proof of facts different from those required for
the state convictions for conspiracy to commit robbery.
Further, the Court noted, the law defining the two
offenses was intended to prevent substantially different
harms. See N.J.S.A. 2C:1-11a(1); State v. DiVentura,
187 N.J. Super. 165 (App. Div. 1982); State v. King, 215
N.J. Super. 504 (App. Div. 1978); State v. Goodman, 92
N.J. 43 (1983); State v. Sessoms, 187 N.J. Super. 625 (Law
Div. 1982).State v. Buhl, 269 N.J. Super. 344 (App. Div. 1994),
certif. denied, 135 N.J. 468 (1994). Quoting State v.
Goodman, 92 N.J. 43, 51 (1983), the Appellate Division
explained that the dual sovereignty doctrine “recognizes
that separate governmental jurisdictions have concurrent
power to proscribe criminal conduct and to prosecute
crime; and further each sovereign may exercise this power
without regard to whether particular conduct is or was
the subject of separate criminal proceedings undertaken
by another jurisdiction.” The Appellate Division also
noted the statutory limits placed by N.J.S.A. 2C:1-11 on
application of the doctrine.State v. Walters, 279 N.J. Super. 626 (App. Div.
1995). The Appellate Division rejected defendant’s
claim that the use of criminal conduct in federal court to
enhance a federal sentence required a New Jersey court to
dismiss an indictment based upon that conduct pursuant
to N.J.S.A. 2C:1-11. The Court found that the use by a
federal court of facts pertinent to a pending state
indictment cannot transmute that enhancement of
sentence into a “prosecution” or “conviction” within the
meaning of N.J.S.A. 2C:1-11. Thus, defendant had
never been prosecuted or convicted of any of the New
Jersey indicted acts and N.J.S.A. 2C:1-11 did not present
a bar to prosecution.In State v. Jones, 287 N.J. Super. 478 (App. Div.
1996), the Appellate Division held that defendant’s
prosecution for possession of cocaine and possession of
cocaine with intent to distribute was not barred under
N.J.S.A. 2C:1-11 because of his previous federal
conviction in North Carolina for conspiracy to distribute
cocaine and for violating the Travel Act. The court found
that the possession of cocaine in New Jersey was merely
evidence for the violation of the Travel Act, and both the
federal drug offense and the Travel Act had significantly
different elements than the New Jersey offense. Further,