Wednesday, August 23, 2017
C.A. Rejects Assault on Federal ‘Dual Sovereignty Doctrine’
Former DA Steve Cooley Does Not Convince Panel That Conduct Punished by U.S. Cannot Also be Punished by State Under Statutes With Different Elements
By a MetNews Staff Writer
The Court of Appeal for this district has rejected an assault on the “dual sovereignty doctrine” under which both the federal government and a state may impose penal consequences for the same conduct, so long as non-duplicative crimes are charged.
Div. Four, in an opinion by Presiding Justice Norman Epstein, on Monday affirmed the convictions of Astati Halim and her husband, Hendra Anwar, both Indonesian citizens, in connection with luring three young women here through false promises and keeping them as virtual slaves in the couple’s three residences. The women were forced to work at domestic chores 14 or more hours a day, seven days a week.
Following Los Angeles Superior Court Judge Douglas Sortino’s denial of their motions to dismiss the indictment, Halim pled guilty to one count of violating California’s human trafficking statute and Anwar pled guilty to being an accessory after the fact.
Sortino placed each on three years’ probation.
Former D.A. Argues
Those charges should have been dismissed, according to their attorneys on appeal—former Los Angeles County District Attorney Steve Cooley and Long Beach attorney Brentford J. Ferreira—because they arise from the very conduct that gave rise to federal charges.
Each defendant entered a guilty plea to those charges in U.S. District Court for the Central District of California, pursuant to a plea bargain.
Halim was sentenced, for misuse of visas (which were confiscated from the domestic workers), to five years’ probation, required to perform 400 hours of community service, and ordered to pay $137,669 in restitution and a $50,000 fine. Anwar was sentenced, for minimum wage violations, to two years’ probation, 100 hours of community service, and was ordered to pay a $10,000 fine.
The initial paragraph of the plea agreement specified that it could not “bind any other federal, state, local, or foreign prosecuting, enforcement, administrative, or regulatory authorities.”
Epstein observed that the dual sovereignty doctrine has been “the subject of sustained criticism by courts and commentators,” yet “has been reaffirmed and continues in force.”
“The core claim of defendants’ appeal challenges this long prevailing doctrine. They contend the Fifth Amendment double jeopardy guarantee ‘applies to plea bargains such that a separate sovereign may not prosecute based on the same conduct under the dual sovereign[ty] doctrine where the neighboring sovereign has entered into a global resolution of the case’ through a plea agreement.”
He declined to accede to the entreaty by Cooley and Ferreira that attention be cast on the defendants’ overall conduct, rather than on the respective elements of the federal and state statutes. Jeopardy attaches only in connection with crimes that are actually charged, he set forth.
“Here, jeopardy attached when Halim and Anwar were convicted and sentenced in federal court following their respective guilty pleas to misuse of visas…and minimum wage violations,” Epstein said. “Defendants were not placed in jeopardy for the original federal charge of harboring illegal aliens because they were never placed on trial nor pleaded guilty to that offense.”
Neither of the crimes to which either defendant pled guilty in federal court, he pointed out, “constitutes the ‘same offense’ as human trafficking under California law,” which requires that the defendant “deprives or violates the personal liberty of another with the intent to obtain forced labor or services.” The federal crimes, he declared, “involve entirely different elements.”
Contentions Found Moot
That, Epstein said, renders the attack on the dual sovereignty document moot and, he found, thereby rendered moot the asserted “sham separate sovereign” exception to the doctrine.
The exception was invoked on the ground that FBI Special Agent David Lam was “dissatisfied” over the lenient treatment the defendants received under the federal plea bargain and enlisted the Los Angeles Police Department to persuade the District Attorney’s Office to prosecute.
Without finding whether the exception was applicable or not, Epstein that said it arises from dictum in a United States Supreme Court opinion that the state was acting as a “a tool” of the federal government to avert a double jeopardy defense. He remarked that the defendants “seek a novel application” of the exception, and added in a footnote that while the “exception has been recognized by some courts…, it is quite restricted.”
Due Process Argument
Addressing a further contention. Epstein said:
“There is no support in the record for defendants’ allegations that the District Attorney brought the human trafficking charges solely for publicity or to subject defendants to collateral immigration consequences. And we disagree with the assertion that the actions of that office were ‘arbitrary and capricious’ or ‘irrational.’ The State of California has a legitimate interest in enforcing its criminal prohibition against human trafficking, including the protection of victims as well as deterring and punishing offenders….We accordingly decline to find any due process violation in this case.”
Among other rejected arguments was that the U.S. Constitution’s Full Faith and Credit Clause applies. Epstein cited precedent that the clause is not violated where a state seeks to enforce its own penal statutes after criminal proceedings in federal court, and added:
“Even were we to assume, for sake of argument, that the trial court was bound to give full faith and credit to the federal judgment and plea agreements, defendants would not be entitled to relief. Defendants’ federal pleas to misuse of visas and minimum wage violations were not determinative of whether they violated California’s human trafficking laws.”
He pointed to language in the plea accord that other jurisdictions were not bound, and said:
“Nothing in the federal plea agreements or judgment barred the District Attorney from prosecuting defendants under state law or required the trial court to dismiss the indictment.”
Cooley told the MetNews:
“”The Court of Appeal duly followed precedent in this arcane and important arena of the law. Plea bargaining resolves 97% of federal criminal cases and 94% of state criminal cases. When the criminal acts are resolved by a legitimate case settlement by one sovereign or another that should be the end of it.
“If not, there could be significant negative impacts on the overall criminal justice system given the vast number of crimes that are subjects of concurrent jurisdiction.”
He said that several courts—including the U.S. Supreme Court—have, along with legal commentators, questioned the wisdom of the dual sovereignty doctrine. The former district attorney pointed to discussion last year in the high court decision in Puerto Rico v Sanchez Valle.
There, the court held that there were no “dual sovereignties” involved because Puerto Rico and the United States are not separate sovereignties. In a concurring opinion, Justice Ruth Ginzburg, joined by Justice Clarence Thomas, said:
“I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct….Current ‘separate sovereigns’ doctrine hardly serves that objective. States and Nation are ‘kindred systems,’ yet ‘parts of ONE WHOLE.’…The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.”
Cooley said: “Maybe this is the case where that will be done.”
The case is People v. Halim, 17 S.O.S. 4170.
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