State v. Robertson

• Decision Date: 06 March 2014
• Docket Number: No. 20120951–CA.,20120951–CA.
• Citation: 321 P.3d 1156,755 Utah Adv. Rep. 42
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. D. Chris ROBERTSON, Defendant and Appellant.

321 P.3d 1156

755 Utah Adv. Rep. 42

STATE of Utah, Plaintiff and Appellee,

v.D. Chris ROBERTSON, Defendant and Appellant.

No. 20120951–CA.

Court of Appeals of Utah.

March 6, 2014.

T. Langdon Fisher, for Appellant.

Sean D. Reyes, Deborah L. Bulkeley, and Michelle I. Young, for Appellee.

Judge JOHN A. PEARCE authored this Memorandum Decision, in which Judges GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

Memorandum Decision

PEARCE, Judge:

¶ 1 D. Chris Robertson appeals from his convictions on twenty counts of sexual exploitation of a minor, each a second degree felony. SeeUtah Code Ann. § 76–5b–201 (LexisNexis 2012). Robertson argues that by prosecuting him after his federal conviction for the same conduct, the State violated his constitutional rights by placing him twice in jeopardy for the same offenses. He also argues that his prosecution by the State is barred by principles of res judicata. We affirm.

¶ 2 The Internet Crimes Against Children task force (ICAC) is a multijurisdictional task force of local, state, and federal law enforcement officers.¹ In March 2009, a Salt Lake City Police Department (SLCPD) detective assigned to ICAC received a tip that Robertson was accessing and viewing child pornography on his workplace computer. After interviewing several of Robertson's employees, ICAC agents obtained a search warrant for Robertson's office from a Utah state district court judge. When the agents executed the search warrant, they discovered more than 24,000 images and approximately 380 videos containing child pornography.

¶ 3 The ICAC case manager, a special agent with the Utah Attorney General's Office, consulted with a Utah state prosecutor and received “the go ahead” to pursue Robertson's prosecution in federal court.² The case manager presented the case to an Assistant United States Attorney (the AUSA), who “agreed that there was probable cause to move forward with charges.” The AUSA then initiated a federal prosecution against Robertson.

¶ 4 The case manager continued to work with the AUSA as the investigator on the case. In September 2009, when federal authorities presented evidence against Robertson to a federal grand jury, the case manager was the only government witness to testify. After a federal indictment and arrest warrant for Robertson were obtained, the case manager and the SLCPD detective arrested Robertson. The case manager also assisted the federal prosecution. At the request of the AUSA prosecuting the case, the case manager met with defense attorneys to review the case, obtained witness statements, and examined evidence to identify victims.

¶ 5 In April 2010, Robertson pleaded guilty to a single federal count of possessing child pornography. He was eventually sentenced to the two days jail time that he had served after his arrest, as well as federal probation. He was also ordered to pay restitution to two victims in the total amount of $75,000. The case manager was dissatisfied with this sentence and spoke with Utah state prosecutors about the possibility of filing state charges against Robertson. The State then initiated its own prosecution in Utah state court, charging Robertson with twenty counts of sexual exploitation of a minor based on twenty of the images and videos of child pornography found in his possession.

¶ 6 Robertson filed a motion to dismiss, arguing that principles of double jeopardy and res judicata foreclosed the State's ability to prosecute him. The district court denied Robertson's motion, reasoning that the State and the federal governments are separate sovereigns who, under the “dual sovereignty doctrine,” are entitled to conduct their individual prosecutions of Robertson without offending double jeopardy principles. See generally State v. Franklin, 735 P.2d 34, 36–38 (Utah 1987). After a bench trial, the district court convicted Robertson of all counts and sentenced him to twenty concurrent terms of one to fifteen years in prison.

¶ 7 Robertson appeals, arguing that the district court erred in applying the doctrine of dual sovereignty to deny his motion to dismiss. He argues that the dual sovereignty doctrine should not apply under the circumstances of this case and that his state court convictions are therefore barred under the double jeopardy clauses of both the United States and Utah constitutions, as well as by state double jeopardy statutes and principles of res judicata. These arguments present questions of law, which we review for correctness. See State v. Sommerville, 2013 UT App 40, ¶ 6, 297 P.3d 665 (reviewing both double jeopardy and res judicata questions for correctness).

I. Double Jeopardy Under the United States Constitution

¶ 8 The Double Jeopardy Clause of the United States Constitution provides, “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This clause protects defendants from “(1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a second prosecution for the same offense after conviction,’ and (3) ‘multiple punishments for the same offense.’ ” Warnick v. Booher, 425 F.3d 842, 847 (10th Cir.2005) (quoting Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989)). A defendant is not, however, generally placed in double jeopardy when prosecutions for the same criminal behavior are initiated by separate sovereigns under their own laws. See Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) ( “[W]hen the same act transgresses the laws of two sovereigns, 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 offences, for each of which he is justly punishable.” (citation and internal quotation marks omitted)).

¶ 9 While acknowledging the dual sovereignty doctrine, Robertson argues that the United States Supreme Court has created, in Bartkus v. Illinois, an exception that prevents his subsequent state prosecution in this case. See359 U.S. 121, 123–24, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Under Bartkus, double jeopardy principles may be violated when the initial prosecution by one sovereign is a “sham prosecution” or “is used as a cover or tool for a successive prosecution by another sovereign.” United States v. Barrett, 496 F.3d 1079, 1119 (10th Cir.2007) (citation and internal quotation marks omitted).

¶ 10 Courts have recognized that Bartkus provides only a narrow exception to the otherwise robust dual sovereignty doctrine. See United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir.1984) (characterizing Bartkus as a “narrow exception to the ‘dual sovereignty’ doctrine”). Even a large measure of cooperation between state and federal authorities is not ordinarily sufficient to invoke Bartkus. See 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.”). Rather, the exception is “limited to situations in which one sovereign so thoroughly dominates or manipulates the prosecutorial machinery of another that the latter retains little or no volition in its own proceedings.” United States v. Guzman, 85 F.3d 823, 827 (1st Cir.1996). Bartkus does not apply so long as each prosecuting sovereign retains “sufficient independent ... involvement” in its own prosecution. Bernhardt, 831 F.2d at 183. Thus, to prevail on his Bartkus argument, Robertson “must demonstrate that the [federal] officials had little or no independent volition in the [federal] proceedings.” See United States v. Liddy, 542 F.2d 76, 79 (D.C.Cir.1976).

¶ 11 Robertson contends that the State's substantial involvement in his investigation and federal prosecution pushes this case into the Bartkus exception. In support of this contention, Robertson notes that the State's agents initially discovered Robertson's illegal activities, conducted the investigation, and obtained and executed a state search warrant. He further points out that it was the case manager who, after consultation with a state prosecutor, decided to refer the matter for federal charges. After the federal government elected to prosecute Robertson, the ICAC case manager played a key role in obtaining a federal indictment and arrest warrant, personally participated in Robertson's arrest on the federal warrant, and continued to act as the case agent throughout the federal prosecution.

¶ 12 Despite the State's substantial involvement in Robertson's investigation and federal prosecution, the federal case cannot be accurately characterized as either a sham prosecution or a tool for the State. The record does not support a conclusion that the federal prosecutor lacked independent volition in the federal prosecution against Robertson. The AUSA exercised control over the federal prosecution and could have declined to accept it initially or dismissed it at any time without the State's approval. There is nothing in the record to even suggest that the federal government lost any ability to prosecute its case in the manner it desired.

¶ 13 Further, the circumstances of this case are readily distinguishable from the cases Robertson cites in which courts have analyzed Bartkus. In United States v. Belcher, 762 F.Supp. 666 (W.D.Va.1991), the court dismissed a federal indictment that had been obtained only after a state prosecution on similar charges was dismissed. The court found it “inconsistent with the concepts of federalism implicit in the Constitution” that the same attorney had been granted prosecuting authority by both the state and federal governments and had prosecuted both cases against the defendant. Id. at 670–71.

¶ 14 In United States v. Scholz, 899 F.Supp. 484 (D.Nev.1995), the court stated in dicta that an initial state prosecution was likely “a federal case in state clothing” that would implicate the Bartkus exception. Id. at 487. In Scholz, the federal government had arranged the state pros...