People v. Morillo

• Decision Date: 06 June 1979
• Docket Number: Docket No. 77-2358
• Citation: 90 Mich.App. 655,282 N.W.2d 434
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Hutson MORILLO, Sr., Defendant-Appellant. 90 Mich.App. 655, 282 N.W.2d 434
• Court: Court of Appeal of Michigan — District of US

Page 434

282 N.W.2d 434

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Hutson MORILLO, Sr., Defendant-Appellant.

Docket No. 77-2358.

90 Mich.App. 655, 282 N.W.2d 434

Court of Appeals of Michigan.

June 6, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 657] David N. Walsh, Birmingham, for defendant-appellant.

[90 MICHAPP 656] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Craig L. John, Asst. Pros. Atty., for plaintiff-appellee.

[90 MICHAPP 657] Before ALLEN, P. J., and MAHER and TOWNSEND, ^* JJ.

PER CURIAM.

Where defendant is charged in Federal proceedings with conspiracy to transport stolen goods in interstate commerce and at the close of the government's case in Federal court is acquitted thereof, and thereafter is charged in the state court of conspiracy to receive and conceal the identical stolen goods, does such action in the state court constitute double jeopardy? On June 24, 1977, the Wayne County Circuit Court held the State's action was not double jeopardy, and defendant appeals of right.

In late 1975, defendant and codefendants were charged with a five-count Federal indictment for transporting and/or receiving and concealing in interstate commerce certain coils of rolled steel having a value of over $5,000, knowing the same was stolen. Trial was held in the Federal District Court for the Eastern District of Michigan before Judge Cornelia Kennedy. As the trial unfolded, counts II, III and IV were dismissed. Count II charged defendant with conspiracy to buy and receive stolen goods while such goods were in interstate commerce in violation of 18 U.S.C. § 659. Count IV charged defendant with buying and receiving such goods in violation of 18 U.S.C. § 659. Count III named defendants other than Thomas Morillo. Trial continued as to counts I and V. Count I charged defendant with conspiracy in violation of 18 U.S.C. § 371 to transport in interstate commerce from Dearborn, Michigan to Skokie, Illinois in May and June, 1975, three coils of hot-rolled steel weighing some 53 tons, knowing the [90 MICHAPP 658] same to be stolen in violation of 18 U.S.C. § 2314. Count V charged defendant with the same offense in relation to two different coils of hot-rolled steel allegedly stolen and sold in a separate transaction on a different occasion. Upon completion of the prosecution's case defendant moved for judgment of acquittal on counts I and V. On September 14, 1976, Judge Kennedy granted defendant's motion on grounds that the government had failed to prove an intention on the part of defendant to transport the stolen property interstate. ¹

In December, 1976, a three-count information was filed against defendant in the Wayne County Circuit Court. Count I charged defendant with conspiracy, M.C.L. § 750.157a(a); M.S.A. § 28.354(1)(a), to receive and conceal the same five coils of hot-rolled steel as were specified in Counts I and V of the Federal indictment, contrary to M.C.L. § 750.535; M.S.A. § 28.803. Count II charged defendant with receiving and concealing, in violation of M.C.L. § 750.535; M.S.A. § 28.803, the three coils of steel mentioned in count I of the Federal proceedings and [90 MICHAPP 659] count III charged defendant with receiving and concealing the two coils of hot-rolled steel listed in Count V of the Federal indictment. The defendant moved to quash the complaint and warrant, arguing former jeopardy from the Federal proceedings. When that motion was denied on June 24, 1977, the defendant sought and was granted leave to appeal to this Court.

There can be no double jeopardy unless there was prior jeopardy in the Federal proceedings. Judge Kennedy's order of acquittal was issued after the jury was impaneled and the government had presented its proofs. The Supreme Court of the United States and the State of Michigan have ruled that a defendant is placed in jeopardy once a jury is impaneled and sworn. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972). ² However, it is also true that for jeopardy to attach, the court must be vested with competent jurisdiction. People v. Powers, 272 Mich. 303, 261 N.W. 543 (1935); Recorder's Court Presiding Judge v. Third Judicial Circuit Judge, 340 Mich. 193, 65 N.W.2d 320 (1954). See also State v. Hite, 3 Wash.App. 9, 472 P.2d 600 (1970), Cert. den. 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712 (1971). The people initially argue that Judge Kennedy clearly ruled that jurisdiction did not lie because interstate transportation had not been shown. We disagree. This is not a case where the Court never had jurisdiction. Instead, it is a case where jurisdiction (interstate commerce) was an element of the offense an element which the government failed to [90 MICHAPP 660] prove. The lack of competent jurisdiction of the type which precludes jeopardy in the first court involves situations where the first court never had jurisdiction in the first place and never could establish it. That is not the situation in the instant case. Clearly, jeopardy attached at the Federal level. See also Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).

Citing People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976) as authority, the people argue that even if prior jeopardy attached in the Federal court, the State is not foreclosed from prosecution where the State has a distinct and special interest to protect. Defendant also relies on Cooper, claiming that the interests of the State and the Federal government are substantially the same. Under the "dual sovereignty" doctrine as set forth in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), and Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), successive prosecutions by the State and Federal governments for the same act did not constitute double jeopardy. But subsequent cases beginning with Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), seriously eroded the doctrine. See Brant, Overruling Bartkus and Abbate: A New Standard for Double Jeopardy, 11 Washburn L.J. 188 (1972). In Cooper, the Michigan Supreme Court qualified the dual sovereignty doctrine holding that, unless the State's interest is substantially different from the Federal interest, Const.1963, Art. 1, § 15 prohibits a state prosecution for any offense which arises out of the same criminal act for which a Federal prosecution was concluded.

"We feel that the interests of the state and the defendant are best accommodated by the approach of the Pennsylvania Supreme Court in Commonwealth v. [90 MICHAPP 661] Mills, 447 Pa. 163, 286 A.2d 638 (1971). We perceive that approach as requiring, and we so hold, that 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. Analysis on a case-by-case basis cannot be avoided." (Emphasis supplied.) 398 Mich. 450, 460-461, 247 N.W.2d 866, 870.

To assist lower courts in determining whether the interests of Michigan and the jurisdiction initially prosecuting the defendant are basically different, the Supreme Court suggested a three-factor approach.

"A prosecutor would be entitled to direct the attention of the court to factors which are pertinent to a determination of whether a Federal prosecution satisfies the state's interest. Such factors, for prosecutions arising out of the same criminal act, may include whether the maximum penalties of the statutes involved are greatly disparate, whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction's interests in securing a conviction, and whether the differences in the statutes are merely jurisdictional or are more substantive. While we would prefer that our interpretation produce clear distinctions, we are comforted by our belief in the correctness of this approach, the judiciary's ability to apply this test, and the infrequency of successive Federal and state prosecutions." 398 Mich. 450, 461, 247 N.W.2d 866, 870-71.

Comparing the maximum penalties under the Federal and state statutes involved in the case before us, we note no significant disparity. Receiving or concealing stolen property over $100, M.C.L. § 750.535; M.S.A. § 28.803, carries a maximum penalty of 5 years imprisonment and a $2,500 fine. Conspiracy to receive or conceal carries the same [90 MICHAPP 662] maximum penalty as the substantive offense, plus a possible additional fine of $10,000, M.C.L. § 750.157a; M.S.A. § 28.354(1). Transportation of stolen goods in interstate commerce carries a maximum penalty of 10 years imprisonment and a $10,000 fine, 18 U.S.C. § 2314. Conspiracy to commit an offense against the United States is punishable by a maximum of 5 years imprisonment and a $10,000 fine, 18 U.S.C. § 371.

As to the second factor set forth in Cooper, supra, nothing suggests that the Federal authorities may not be trusted to vindicate Michigan's interest in securing a conviction.

The sole remaining question is whether the differences between the state and Federal statutes are substantive or merely jurisdictional. As a preliminary matter, we note that the elements of a conspiracy are the same under both state and Federal law, People v. Atley, 392 Mich. 298, 310, 220 N.W.2d 465, 471 (1974):

" 'A conspiracy is a partnership in criminal purposes', United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 54 L.Ed. 1168 (1910). A twofold specific intent is required: a combination with others to do what is unlawful."

It is the element of criminal purpose which is the focus of our inquiry here. We must determine whether the substantive offenses which were the object of the alleged...