State v. Moeller

Decision Date19 June 1979
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Charles MOELLER.

Thomas L. Nadeau, Bridgeport, with whom, on the brief, was Theodore I. Koskoff, Bridgeport, for appellant (defendant).

Donald A. Browne, State's Atty., for appellee (state).


LONGO, Associate Justice.

The single issue presented by this appeal is whether the trial court erred in denying the defendant's motion to dismiss, thus overruling the defendant's claim that a state prosecution, following a federal court jury acquittal regarding essentially the same alleged criminal conduct, would violate certain of the defendant's rights secured by the state and federal constitutions.

We briefly recite those facts necessary to a resolution of this issue: On the evening of March 1, 1975, a fire totally destroyed a large manufacturing facility in Shelton, Connecticut, known as Plant No. 4 of the Sponge Rubber Products Company. This incident resulted in an extensive investigative effort by both federal and state authorities which led to a federal indictment and the arrest of ten individuals, including the defendant Moeller. Subsequently, a lengthy federal trial resulted in the conviction of various of the federal defendants. 1 On January 22, 1976, the defendant Moeller was acquitted by the federal jury of all of the four charges lodged against him, and on January 27, 1976, a formal judgment of acquittal was rendered by the United States District Court (Newman, J.) as to the defendant. Among the charges upon which the defendant was acquitted was an arson conspiracy count under 18 U.S.C. §§ 371, 1952 and 2.

Thereafter, on May 3, 1977, the defendant was charged in the Superior Court, in a two-count information, with conspiracy to commit arson in the first and second degrees, in violation of §§ 53a-48, 53a-111 and 53a-112 of the General Statutes, for his alleged participation in the Shelton Sponge Rubber Products Company fire. The state's application for a bench warrant, the supporting affidavit, and the subsequently filed information make clear that the same conspiracy as charged in the federal indictment is involved in the pending state prosecution. The defendant pleaded not guilty to the information. On May 25, 1977, the defendant filed a motion to dismiss the information based upon the "double jeopardy" provision of the fifth amendment to the United States constitution, 2 the due process and equal protection clauses of the fourteenth amendment to the constitution, and the due process clause of article first, § 8, of the Connecticut constitution. On December 21, 1977, the trial court denied the defendant's motion. The defendant has appealed to this court from the denial of his motion to dismiss.

Both the defendant and the state have assisted the court in focusing sharply upon the issue to be resolved; the parties have candidly argued and thoroughly researched the legal principles that must, of necessity, illuminate and guide our decision. The defendant mounts an attack from both constitutional and statutory quarters, arguing that the trial court erred in denying his motion to dismiss principally because the cases upon which the court relied, Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), and their numerous progeny, establishing an exception to the rule against double jeopardy commonly referred to as the "doctrine of dual sovereignty," have been so enfeebled and eroded as to lack any binding force. Additionally, it is argued that, consistent with the intention of various legislative enactments and court decisions of other states emphasizing the "individual protection" which the double jeopardy clause was meant to foster, a successive state prosecution following a federal court acquittal is barred. The defendant finally argues that the doctrine of collateral estoppel, as constitutionally embodied in the double jeopardy clause, bars the relitigation by the state of the same operative facts upon which the defendant had previously been acquitted by a federal jury. The state responds that the established law on the issue presented is unequivocal and clear in holding that the same act may constitute a violation of both federal and state laws, and neither a conviction nor an acquittal in federal or state court bars a subsequent prosecution in the other court system arising from the same transaction or event. We agree.


In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the United States Supreme Court reaffirmed the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one. 3 The basis for the court's decision, establishing what has been termed the "dual sovereignty" concept; see United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); was that prosecutions under the laws of separate sovereigns do not, in the language of the fifth amendment, "subject (the defendant) for the same offense to be twice put in jeopardy": "An offence, in its legal signification, means the transgression of a law.... Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both.... That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it 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." Moore v. Illinois, 55 U.S. (14 How.) 13, 19-20, 14 L.Ed. 306 (1852).

The court in Abbate found further support for the "dual sovereignty" concept by noting the "undesirable consequences" that would inhere in imposing a double jeopardy bar upon state-federal or federal-state prosecutions. Prosecution by one sovereign for a minor offense might bar prosecution by the other for a much graver one, and the court clearly took the position that a federal prosecutor has no authority to bargain away a state's power to enforce its criminal laws. See also United States v. Wheeler, supra, 435 U.S. 318, 98 S.Ct. 1079.

Finally, Bartkus and Abbate, although not weathering the years without criticism, 4 rest on the basic structure of our federal system, in which the states and the national government are separate political communities. State and federal governments "(derive) power from different sources," each from the organic law that established it. United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922). Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each "is exercising its own sovereignty, not that of the other." Ibid. "And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State's own sovereignty which is the origin of its power." United States v. Wheeler, supra, 435 U.S. 320, 98 S.Ct. at 1084.


The defendant must acknowledge that his claim of double jeopardy, arising from the pending state prosecution, is, as a matter of federal constitutional law, foreclosed under the rationale of Bartkus and Abbate. It is not correct to claim, however, as does the defendant, that these cases no longer represent the United States Supreme Court's view of the concept of "dual sovereignty," or that these cases have lost their viability concerning successive prosecutions under the double jeopardy clause. The continued validity and propriety of the "dual sovereignty" concept was recognized and affirmed by the unanimous decision of the Supreme Court in United States v. Wheeler, supra, and has been continuously reaffirmed by the decisions of the United States Courts of Appeals. Wheeler, holding that the double jeopardy clause did not bar the prosecution of an Indian in a federal court when he had previously been convicted in a tribal court of a lesser included offense arising out of the same incident, discusses Bartkus and Abbate at length, clearly regarding them as still correctly stating the law, and unequivocally reaffirms the dual sovereignty doctrine which prevents the imposition of the double jeopardy bar.

Moreover, almost every federal circuit has rejected claims identical to those raised by the defendant Moeller, thereby permitting successive state-federal or federal-state prosecutions. See United States v. Martin, 574 F.2d 1359 (5th Cir. 1978); United States v. Frumento, 563 F.2d 1083 (3d Cir. 1977); United States v. Cordova, 537 F.2d 1073 (9th Cir. 1976); United States v. James, 532 F.2d 1161 (7th Cir. 1976); United States v. Villano, 529 F.2d 1046 (10th Cir. 1976); United States v. Johnson, 516 F.2d 209 (8th Cir. 1975); Martin v. Rose, 481 F.2d 658 (6th Cir. 1973); United States v. Barone, 467 F.2d 247 (2d Cir. 1972); United States v. Smith, 446 F.2d 200 (4th Cir. 1971); United States v. Regan, 273 F. 727 (1st Cir. 1921). 5

Notwithstanding this universally accepted principle of federal law, the defendant argues that the principle allowing successive prosecutions has been eroded by three subsequent decisions of the United States Supreme Court, which, it is claimed, suggest...

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