People v. Mezy, Docket Nos. 101689

• Decision Date: 31 July 1996
• Docket Number: No. 13,Docket Nos. 101689,102274,13
• Citation: 551 N.W.2d 389,453 Mich. 269
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Basil MEZY, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Issam HERMIZ, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 389

551 N.W.2d 389

453 Mich. 269

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Basil MEZY, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Issam HERMIZ, Defendant-Appellant.

Docket Nos. 101689, 102274.

Calendar No. 13.

Supreme Court of Michigan.

Argued Jan. 10, 1996.

Decided July 31, 1996.

[453 Mich. 272] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, Pontiac, for the people.

Laurence R. Imerman, Bingham Farms, for defendant Mezy.

Domnick J. Sorise, Clinton Township, for defendant Hermiz.

Michael D. Thomas, President, Prosecuting Attorneys Association of Michigan, John D. O'Hair, Wayne County Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Saginaw, Amicus Curiae, for Prosecuting Attorneys Association of Michigan.

OPINION

WEAVER, Justice.

The question presented in these consolidated criminal appeals is whether Michigan was barred from indicting these defendants for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine when they had previously been convicted in federal court of conspiracy to possess with intent to distribute more than five kilograms of cocaine and interstate travel to facilitate a cocaine conspiracy. We would hold that the Michigan Constitution, as the United States Constitution, does not prohibit successive state and federal prosecutions. In so holding, we would overrule People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). We would remand to allow the trial court to consider whether these successive prosecutions were prohibited by M.C.L. § 333.7409; M.S.A. § 14.15(7409).

I Hermiz

In October, 1989, Issam Hermiz was indicted in federal court in the middle district of Florida for conspiring to possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a)(1). Hermiz was convicted as charged and sentenced to a prison term of 211 months. In July, 1990, Hermiz was indicted in Oakland County, Michigan, for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). After a jury trial, Hermiz was convicted as charged and sentenced to life imprisonment without parole. Hermiz appealed, arguing that the Oakland County indictment violated the double jeopardy prohibition. The Court of Appeals affirmed Hermiz's conviction. ¹ This Court granted leave to appeal ². We affirm in part and remand with instructions.

Mezy

In August, 1988, Basil Mezy was indicted in federal court of the eastern district of Michigan for conspiracy to possess with intent to distribute more than four kilograms of cocaine, 21 U.S.C. § 841(a)(1) and 846. ³ Mezy pleaded guilty of laundering money instruments, 18 U.S.C. § 1956(a)(2)(B)(ii) ⁴ in exchange for a dismissal of the conspiracy charge. He was sentenced to thirty-three months in federal prison.

In June, 1989, Mezy was indicted in federal court for the middle district of Florida for conspiracy to possess with intent to distribute more than five kilograms of cocaine, 21 U.S.C. § 841(a)(1) and 846, and interstate travel to facilitate a cocaine conspiracy, 18 U.S.C. § 1952(a)(3). Mezy was convicted of one count of the former and two counts of the latter. Mezy was sentenced to concurrent prison terms of twenty-two and five years. These terms are to run consecutively to the money-laundering sentence.

In July, 1990, Mezy was charged in Oakland Circuit Court with conspiracy to possess with intent to deliver more than 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). ⁵ Mezy was subsequently convicted as charged and received the mandatory sentence of life imprisonment without parole. Mezy appealed, arguing that the Oakland County indictment violated the double jeopardy prohibition. The Court of Appeals, relying on the conviction in the federal court for the eastern district of Michigan, reversed Mezy's conviction. ⁶ This Court granted leave to appeal. ⁷ We would reverse and remand with instructions.

II

In Mezy's case the first issue is whether, for purposes of a double jeopardy analysis, we should consider the charge on which Mezy was indicted in the Eastern District of Michigan, conspiracy to possess with intent to deliver more than four kilograms of cocaine, or the charge to which he pleaded guilty, laundering money instruments. We follow the federal rule and hold that a prosecution on charges dismissed pursuant to a plea agreement does not violate the Double Jeopardy Clause where the newly charged offense is a different offense for double jeopardy purposes than the crime to which the defendant has pleaded guilty. See United States v. Garner, 32 F.3d 1305, 1311, n. 6 (C.A.8, 1994) United States v. Rivera-Feliciano, 930 F.2d 951, 953-954 (C.A.1, 1991); ⁸ see also Ricketts v. Adamson, 483 U.S. 1, 8, 107 S.Ct. 2680, 2684-2685, 97 L.Ed.2d 1 (1987) (the Court noted that a plea of guilty for a lesser included offense generally would have precluded a charge of the greater offense on double jeopardy grounds except for the fact that the defendant violated his plea agreement). Jeopardy does not attach to charges dismissed as part of a plea agreement. Garner, supra at 1311, n. 6. United States v. Vaughan, 715 F.2d 1373, 1376-1377 (C.A.9, 1983). Thus, we may consider only the charge to which Mezy pleaded guilty, laundering money instruments, not the charge on which he was indicted. This prior conviction of laundering money instruments raises no double jeopardy issues under either the statute or the constitution with respect to Mezy's state court indictment for conspiracy to possess with intent to deliver more than 650 grams of cocaine. See United States v. Felix, 503 U.S. 378, 388-390, 112 S.Ct. 1377, 1384, 118 L.Ed.2d 25 (1992) (a substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes). ⁹

III

Both defendants assert that their Oakland Circuit Court indictments were barred under the Michigan Constitution's Double Jeopardy Clause, relying on People v. Cooper, supra. The information regarding the federal convictions is very sparse. In considering whether there are one or two conspiracies for purposes of the Double Jeopardy Clause, the following factors are considered: time, persons acting as coconspirators, statutory offenses charged in indictments, overt acts charged by government, and places where events alleged as part of conspiracy took place. United States v. Thomas, 759 F.2d 659 (C.A.8, 1985). The defendants clearly met the initial burden of establishing a prima facie nonfrivolous claim of double jeopardy. This was done primarily by showing the similarity of the charges, and the substantial overlap in time of the two conspiracies charged. Thus, the burden shifted to the government to demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution. United States v. Schinnell, 80 F.3d 1064, 1066 (C.A.5, 1996) ¹⁰. The people failed to meet this obligation, because not enough information was provided to show by a preponderance of the evidence that the offenses were distinct. The people have not demonstrated that the trial court committed any clear error in its findings of fact, or that it erred in its application of the constitutional test under Thomas in concluding that the people failed to carry their burden. ¹¹ Thus, for purposes of the constitutional double jeopardy claim, we must assume that the federal and state conspiracies are the same. This leads us to address, as requested by the plaintiffs, the continuing validity of Cooper.

The United States Constitution provides: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const.Amend. 5. The United States Supreme Court has consistently held that successive state and federal prosecutions are not a violation of the Fifth Amendment. Bartkus v. People of Illinois, 359 U.S. 121, 132, 79 S.Ct. 676, 682-683, 3 L.Ed.2d 684 (1959). The reasoning behind this holding was clearly set out in Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 437-438, 88 L.Ed.2d 387 (1985).

The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offenses." As the Court explained in Moore v. Illinois, [55 U.S.] (14 How.) 13, 19 (1852), "[a]n offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns, "[i]t cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offenses, for each of which he is justly punishable." [Citations omitted.]

The language of the Michigan Constitution's double jeopardy provision is substantially similar to that of the United States Constitution. The Michigan Constitution was amended in 1963 to provide: "No person shall be subject for the same offense to be twice put in jeopardy." Const. 1963, art. 1; § 15. Before 1962, the wording of Michigan's Double Jeopardy Clause was, "No person, after acquittal upon the merits, shall be tried for the same offense." Const. 1908, art. 2; § 14.

When construing a constitution, the Court's task is to "divine the 'common understanding' of the provision, that meaning 'which reasonable minds, the great mass of the people themselves, would give it.' " People v. Nash, 418 Mich. 196, 209, 341 N.W.2d 439 (1983). Relevant considerations include the constitutional convention debates, the address to the people, the circumstances leading to the adoption of the provision, and...