State v. Byrns

• Decision Date: 13 July 1995
• Docket Number: No. 930345-CA,930345-CA
• Citation: 911 P.2d 981
• Parties: STATE of Utah, Plaintiff and Appellee, v. James A. BYRNS, Jr., Defendant and Appellant.
• Court: Utah Court of Appeals

Page 981

911 P.2d 981

STATE of Utah, Plaintiff and Appellee, v. James A. BYRNS, Jr., Defendant and Appellant.

No. 930345-CA.

Court of Appeals of Utah.

July 13, 1995.

Michael D. Esplin, Aldrich, Nelson, Weight & Esplin, Provo, for appellant.

Joanne C. Slotnik, Asst. Atty. Gen., Jan Graham, State Atty. Gen., Salt Lake City, for appellee.

OPINION

Before Bench, Billings and Greenwood, JJ.

BILLINGS, Judge:

Upon entering a conditional plea of no contest to the charges of arranging to distribute methamphetamine and possession of a listed chemical with intent to manufacture, defendant James Arthur Byrns, Jr. appeals several of the district court's pretrial rulings. We affirm.

FACTS

Defendant and Ross Argyle met while in custody in Oregon. Thereafter, defendant returned to his parent's home in Reno, Nevada, and Argyle was extradited to Utah. While in the Utah County Jail, Argyle told a Provo City police officer that defendant had previously travelled to Utah to obtain precursors used in manufacturing methamphetamine.

The police officer contacted the federal Drug Enforcement Agency, and a federal agent met with Argyle at the Provo City Police Department. With the agent present, Argyle telephoned defendant, and Argyle and defendant developed plans to manufacture methamphetamine in Utah County. Argyle agreed to wire defendant money for the bus fare to Wendover. In a subsequent telephone conversation with defendant, Argyle introduced the federal agent as his friend and financial backer. Thereafter, defendant spoke to the agent by telephone at least six times. Defendant specified the equipment and chemicals the agent was to procure, and the two solidified their plans to begin manufacturing methamphetamine. When the agent indicated that he wanted to learn how to manufacture the drug himself, defendant responded that he would teach him for $10,000.

Subsequently, defendant took a bus to Wendover, where the agent met him and drove him to a mobile home in Lindon, Utah. The equipment defendant had requested was inside the mobile home, and defendant made a list of additional necessary items. Once the items were procured, defendant began pouring bottles of ephedrine tablets into gallon jugs of distilled water. Defendant was thereafter arrested by the Provo City S.W.A.T. team.

Defendant was indicted in the United States District Court on a single count of attempting to manufacture methamphetamine. A little more than one year later, the court dismissed the indictment with prejudice based on a violation of the Federal Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1985).

Two days after the federal court's dismissal, defendant was arrested and charged in state court with one count of arranging to distribute methamphetamine and two counts of possession of listed chemicals with intent to manufacture. The state charges were based on the same activity that gave rise to the federal charges.

Thereafter, defendant filed several motions, including a motion to dismiss on grounds of double jeopardy, a motion regarding an entrapment defense, and a motion to secure Argyle as a witness. A hearing was held December 10, 1992, at which counsel for the State and defendant agreed, with the court's approval, that the State would attempt to ensure Argyle's presence at a followup hearing scheduled for March 8, 1993. The court then heard the federal agent's and the Provo City police officer's testimony and took the entrapment issue under advisement pending Argyle's testimony.

At the March 8 hearing, the State reported that it had not been able to locate Argyle. Defendant interposed a motion to dismiss based on this failure. Thereafter, the State called two witnesses and proffered the testimony of two others.

On March 15, 1993, the court issued a written ruling denying defendant's motion to dismiss, as well as his entrapment defense. Following a plea bargain, defendant entered a conditional plea of no contest. This appeal followed.

I. DOUBLE JEOPARDY

Defendant argues the State's prosecution, brought after the federal district court dismissed his indictment, violates the guarantee against double jeopardy contained in the Fifth Amendment to the United States Constitution.

The Double Jeopardy Clause states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The United States Supreme Court has recognized two distinct protections embodied in this clause. In its primary sense, the clause protects criminal defendants from being subjected to successive prosecutions for the same criminal offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); United States v. Blackwell, 900 F.2d 742, 745 (4th Cir.1990). A defendant is not placed in jeopardy until a jury is impaneled and sworn, or if a bench trial, the first witness is sworn. Crist v. Bretz, 437 U.S. 28, 37 & n. 15, 98 S.Ct. 2156, 2162 & n. 15, 57 L.Ed.2d 24 (1978); United States v. Belcher, 762 F.Supp. 666, 669 (W.D.Va.1991). Since defendant's case was dismissed prior to trial in the federal prosecution, he was never placed in jeopardy in the primary sense.

The secondary aspect of the Double Jeopardy Clause, collateral estoppel, protects criminal defendants from having to relitigate issues that have been resolved in their favor by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 443-46, 90 S.Ct. 1189, 1194-95, 25 L.Ed.2d 469 (1970); Blackwell, 900 F.2d at 745. Under collateral estoppel principles, the pretrial disposition of a case in a prior prosecution may be sufficient to bar a subsequent prosecution. Blackwell, 900 F.2d at 745; Belcher, 762 F.Supp. at 670. The Fourth Circuit Court of Appeals explained:

"[O]nce an issue of ultimate fact has been resolved in a defendant's favor by a valid and final judgment in a criminal proceeding, the government may not relitigate that issue in a subsequent criminal prosecution against him. If the fact necessarily determined in the first trial is an essential element of the second offense, collateral estoppel may operate as a complete bar against the subsequent prosecution, affording the defendant 'double jeopardy' protection, even when that prosecution is not for the 'same offense' as the first. In other instances, collateral estoppel may operate not wholly to preclude prosecution but simply to foreclose the relitigation of certain issues of fact that were necessarily resolved in the defendant's favor in the first trial."

Blackwell, 900 F.2d at 745 (quoting United States v. Ragins, 840 F.2d 1184, 1194 (4th Cir.1988) (citations omitted)).

In the present case, the only litigated issue was whether the federal prosecutor's post-indictment delay in bringing defendant to trial violated section 3162 of the Speedy Trial Act. The federal district court determined that it did and dismissed the case. Defendant now argues that that determination bars the State from further prosecution.

Under the "dual sovereignty" doctrine, principles of collateral estoppel generally cannot be invoked to bar the relitigation of an issue by a separate sovereign. See United States v. Smith, 446 F.2d 200, 202 (4th Cir.1971) (holding federal government not barred from relitigating facts resolved in defendant's favor in prior state prosecution because federal government is "neither the same as nor in privity" with state); Belcher, 762 F.Supp. at 670 (noting general rule that sovereign is not bound by collateral estoppel effect of prior proceeding of separate sovereign). ¹ However, Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), carved out a narrow exception to that rule. Bartkus "bars a second prosecution where one prosecuting sovereign can be said to be acting as a 'tool' of the other ..., or where the second prosecution amounts to a 'sham and a cover' for the first." Belcher, 762 F.Supp. at 670 (quoting United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir.1984)).

The United States District Court elucidated the Bartkus exception in Belcher. Belcher involved a federal prosecution brought on the heels of a state dismissal. The same person acted both as attorney for the Commonwealth of Virginia and Special Assistant United States Attorney for the Western District of Virginia, prosecuting the defendants first for the commonwealth, and when that case was dismissed, for the United States. On appeal, the court stated that the Bartkus exception is "best understood and applied in a situation where the principles of federalism are blurred and 'the power of centralized government' works to deprive a citizen of fundamental rights." Id. The court emphasized, "State governments have their own decision makers who arrive at independent judgments as to the use of the awesome power they possess over who, when and how to prosecute. The court believes that federalism does not contemplate the uniting of these awesome powers in one person." Id. at 671 (citing United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 1084, 55 L.Ed.2d 303 (1978)). Therefore, the court concluded, collateral estoppel barred the federal government from prosecuting because a determinative issue had been decided in the defendants' favor in the state prosecution. Id.

Defendant argues that the Bartkus exception applies in the present case because state and federal law enforcement agents worked together throughout the investigation. However, in United States v. Aboumoussallem, 726 F.2d 906 (2d Cir.1984), the United States Court of Appeals rejected this precise argument, reaffirming that "a joint investigation of criminal activity ... does not preclude separate prosecutions." Id. at 910; accord United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir.1987) ("It is clear that the Bartkus exception does not bar cooperation between prosecuting sovereignties."). Moreover, the record reveals nothing akin to the collusion between federal and state authorities, or the blurring of federalism, that was...