People v. Formicola

• Decision Date: 29 October 1979
• Docket Number: No. 4,Docket No. 60941,4
• Citation: 284 N.W.2d 334,407 Mich. 293
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony FORMICOLA, Defendant-Appellant. Calendar407 Mich. 293, 284 N.W.2d 334
• Court: Michigan Supreme Court

Page 334

284 N.W.2d 334

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony FORMICOLA, Defendant-Appellant.

Docket No. 60941.

Calendar No. 4.

407 Mich. 293, 284 N.W.2d 334

Supreme Court of Michigan.

Argued Jan. 11, 1979.

Decided Oct. 29, 1979.

L. Brooks Patterson, Pros. Atty., Oakland County, Robert C. Williams, Chief Appellate Counsel, by Lawrence J. Bunting, Asst. Pros. Atty., Pontiac, for appellee.

Peter L. Conway, III, Bloomfield Hills, for Anthony Formicola, defendant-appellant; Andrea Ferrara, Research Asst., Bloomfield Hills.

MOODY, Justice.

On September 13, 1976, a complaint charging the defendant, Anthony Formicola, with obstruction of justice was filed in the United States District Court for the Eastern District of Michigan. This complaint was superseded by a four count indictment issued on September 23, 1976. A Federal grand jury indicted defendant on two counts of endeavoring to influence, intimidate, and impede witnesses in a pending Federal criminal prosecution, in violation of 18 U.S.C. § 1503, and two counts of obstruction of criminal investigations, in violation of 18 U.S.C. § 1510(a). Defendant pled guilty to all four counts, and on February 7, 1977, the Honorable Robert E. DeMascio sentenced him to 10 years in prison at the Federal correctional facility in Leavenworth, Kansas.

Prior to the defendant's plea of guilty to the Federal charges, the Oakland County prosecutor issued a complaint and warrant charging the defendant with four counts of inducing another to commit the crime of murder, contrary to M.C.L. § 750.157b; M.S.A. § 28.354(2). Defendant was bound over to the Oakland Circuit Court on these charged offenses following a preliminary examination in the 43rd District Court.

Defendant brought a motion to dismiss the state charges, contending that they were barred on double jeopardy grounds due to the prior plea-based Federal obstruction of justice convictions. The motion to dismiss was denied by the Oakland Circuit Court on September 6, 1977. The Court of Appeals denied defendant's application for leave to appeal.

Both the Federal and the state charges arise out of the same factual setting, a meeting with an undercover State Police officer. At this meeting, defendant allegedly arranged to have the undercover State Police officer kill four persons who were witnesses scheduled to testify against the defendant in a pending Federal food stamp fraud prosecution.

We granted leave to appeal to address two questions. 402 Mich. 884 (1978). The first question presented is whether under the guidelines set forth in People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976), defendant will be twice placed in jeopardy by the instant state prosecution in light of his prior Federal court convictions arising out of the same criminal act. The second question to be addressed is whether the Legislature intended that the crime of inducing another to commit the crime of murder, prosecuted under M.C.L. § 750.157b; M.S.A. § 28.354(2), be punishable by mandatory life imprisonment and, if this was the intent, whether such punishment is constitutional.

We find that defendant will not be twice placed in jeopardy by the instant state prosecution, under the guidelines set forth in Cooper, supra. Additionally, we determine that the punishment issue is not properly presented on the present record, and therefore do not reach it.

Accordingly, the order of the Oakland Circuit Court, denying defendant's motion to dismiss, is affirmed.

I

A single criminal act provides the factual basis for the Federal convictions and the instant state charges. Therefore, defendant claims that the latter state charges are barred, on double jeopardy grounds, by his plea-based convictions.

People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976), is the leading Michigan case dealing with the constitutionality of state prosecutions subsequent to Federal prosecutions for offenses arising out of the same act. The Cooper Court noted that the double jeopardy provision of the Fifth Amendment to the United States Constitution, U.S.Const. Am. V, does not bar state prosecution after Federal prosecution for offenses arising out of the same criminal act. However, the Court found a prohibition, within the state's constitutional provision, of most subsequent state prosecutions:

"Const. 1963, art. 1, § 15 prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different." Cooper, supra, 461, 247 N.W.2d 870.

In determining whether a Federal prosecution satisfies the state's interest, the following nonexclusive factors may be considered:

1. Whether the maximum penalties of the two jurisdictions' statutes are greatly disparate;

2. Whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction's interest in securing a conviction; and

3. Whether differences in the statutes are substantive, as well as jurisdictional. Cooper, supra, 461, 247 N.W.2d 866.

Examination of the first and third enumerated factors in the context of the instant case leads us to conclude that the interests being protected by the State of Michigan are substantially different from the interests of the Federal government.

First, the maximum penalties of the Federal and state statutes are substantially different. The Federal obstruction of justice statutes, 18 U.S.C. § 1503 and 18 U.S.C. § 1510(a), provide maximum penalty provisions of five years imprisonment, a $5,000 fine, or both. These relatively minor Federal penalty provisions are contrasted with the state statute in question which provides a potential maximum penalty of life imprisonment. This great disparity between maximum penalties indicates that the state's interests in prosecuting defendant were not satisfied by the Federal plea-based obstruction of justice convictions.

Furthermore, the state and Federal statutes contain substantive, and not merely jurisdictional differences. Defendant pled guilty of violating the following Federal obstruction of justice statutes:

"Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States (magistrate) or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States (magistrate) or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before...