Kalozi v. State
| Docket Number | 22A-CR-2797 |
| Decision Date | 27 October 2023 |
| Parties | Louis J. Kalozi, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appeal from the Lake Superior Court Trial Court Cause No 45G01-1004-FC-48 The Honorable Salvador Vasquez, Judge
ATTORNEY FOR APPELLANT Mark A. Bates Lake County Public Defender Office Crown Point, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana Interlocutory
[¶1] In this interlocutory appeal, Louis J. Kalozi raises one issue for our review, which we restate as: Does Indiana's double jeopardy statute bar the State from prosecuting him on state criminal charges after he pleaded guilty in federal court to similar charges? Concluding the statute does not bar his state prosecution, we affirm and remand for further proceedings.
[¶2] In early April 2010, Kalozi took four minor children-two male, two female- on a trip from Michigan to Chicago. The group stopped at a hotel in Hammond, Indiana. During the night of April 8 and into the morning of April 9, Kalozi slept in the same bed as one of the minor males, A.R. At some point, Kalozi "began massaging" A.R.'s back. Appellant's App. Vol. 2 at 12. Kalozi worked his hands down A.R.'s back and reached the boy's backside. Kalozi was "hugging" and holding A.R. so tight he could feel Kalozi's penis press against his back and behind. Id. Later in the night, Kalozi flipped A.R. over, pulled A.R.'s pants down, and began "masturbating" A.R. Id. Kalozi's conduct was reported to the police.
[¶3] On April 15, 2010, the State charged Kalozi with two counts of sexual misconduct with a minor.[1] Then, on September 22, 2010, the federal government charged Kalozi with five criminal offenses. Count 1 of the indictment-alleging transportation of a minor for sexual exploitation[2]-stated:
Id. at 45-46. Kalozi pleaded guilty to two counts in his federal case, including Count 1, and received a fifteen-year aggregate sentence.
[¶4] In June 2022, Kalozi was brought to Indiana to face his pending state charges. Kalozi moved to dismiss, alleging the state-court prosecution subjected him to double jeopardy. The trial court denied the motion and Kalozi sought an interlocutory appeal. The trial court certified its order and this Court accepted jurisdiction.
[¶5] Kalozi argues the State is barred from prosecuting him on charges of sexual misconduct with a minor following his guilty plea on his federal charges. When reviewing a motion to dismiss, the defendant has the burden of proving-by a preponderance of the evidence-all facts necessary to support a motion to dismiss. Ackerman v. State, 51 N.E.3d 171, 177 (Ind. 2016). Because Kalozi appeals from a negative judgment, "we will reverse only if the evidence is without conflict and leads inescapably to the conclusion that [Kalozi] is entitled to a dismissal." Id. (quotation omitted). Whether a prosecution is barred by double jeopardy is a question of law, which we review de novo. Swenson v. State, 868 N.E.2d 540, 542 (Ind.Ct.App. 2007). To the extent resolving this issue involves statutory construction, we also review those matters de novo. State v. Johnson, 183 N.E.3d 1118, 1123 (Ind.Ct.App. 2022), trans. denied.
[¶6] Because the state and federal governments are considered "separate" or "dual" sovereigns, the double jeopardy provisions of the United States and Indiana Constitutions do not prevent a state prosecution for conduct which was the subject of a prior federal prosecution. Haggard v. State, 445 N.E.2d 969, 972 (Ind. 1983) (citing Abbate v. United States, 359 U.S. 187 (1959)). But our state legislature has provided protection against multiple prosecutions from different jurisdictions through Indiana's double jeopardy statute. This statute provides:
In a case in which the alleged conduct constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction, a former prosecution in any other jurisdiction is a bar to a subsequent prosecution for the same conduct in Indiana, if the former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.
I.C. § 35-41-4-5 (emphasis added). Essentially, "a prior conviction or acquittal in another jurisdiction bars a subsequent Indiana state prosecution for the 'same conduct.'" Johnson, 183 N.E.3d at 1123.
[¶7] When determining whether a prosecution is barred under Indiana's double jeopardy statute because it is based on the same conduct, we do not employ the tests used in a constitutionally-based double jeopardy analysis. Id. Instead, we consider the "'overt acts' alleged in the sister jurisdiction's charge in juxtaposition with the allegation in the State's charge." Id. (quoting Brewer v. State, 35 N.E.3d 284, 286 (Ind.Ct.App. 2015)); see also Dill v. State, 82 N.E.3d 909, 912 (Ind.Ct.App. 2017) (), trans. denied. Thus, "our analysis centers on comparing the substance of the specific factual allegations contained in the charging instruments to determine if the offenses alleged therein are based on the same conduct." Johnson, 183 N.E.3d at 1123; see also Smith v. State, 993 N.E.2d 1185, 1190 (Ind.Ct.App. 2013) ("The plain language of the statute requires a comparison of the conduct alleged to constitute an offense in Indiana with the conduct alleged to constitute an offense in another jurisdiction[.]"), trans. denied.
[¶8] As discussed above, the federal government charged Kalozi with transportation of a minor for sexual exploitation. The overt act alleged in his federal charge was that Kalozi traveled across state lines with A.R. with the intent to engage in criminal sexual activity with him. Although the federal charge alleged Kalozi attempted sexual conduct with A.R., Section 2423(a) does not require proof of actual sexual conduct to obtain a conviction. See 18 U.S.C. § 2423(a); see, e.g., U.S. v. Nicholson, 24 F.4th 1341, 1349 (11th Cir. 2022) (), cert. denied. Instead, interstate travel "with the intent that the individual engage . . . in any sexual activity for which any person can be charged with a criminal offense" is sufficient. 18 U.S.C. § 2423(a) (emphasis added); see also Johnson, 183 N.E.3d at 1125 (). Put differently, the portion of Kalozi's federal indictment alleging he attempted sexual conduct with A.R. was mere surplusage and not essential to the federal charge. Rather, Kalozi violated Section 2423(a) once he transported A.R. from Michigan to Indiana with the intent to engage in sexual activity with him.[3]
[¶9] With this in mind, we turn to the specific factual allegations contained in Kalozi's state charges. The relevant portions of Kalozi's sexual misconduct with a minor charges provide:
Louis Joseph Kalozi, being at least twenty-one (21) years of age or older, did perform or submit to the fondling or touching of [A.R.] with intent to arouse or satisfy the sexual desires of Louis Joseph Kalozi, or [A.R.], a child at least fourteen (14) years of age or older but under sixteen (16) years of age, contrary to I.C. 35-42-4-9[.]
Appellant's App. Vol. 2 at 11.[4] The operative allegations in these charges are Kalozi either performed or submitted to the fondling or touching of A.R. with intent to arouse or satisfy his or A.R.'s sexual desires. This is not the same overt act alleged in Kalozi's federal charge. So, the State is not statutorily barred from prosecuting Kalozi for sexual misconduct with a minor following his guilty plea to transportation of a minor for sexual exploitation.[5]
[2] "A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign...
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