State v. Robertson
| Decision Date | 15 May 2017 |
| Docket Number | No. 20140268,20140268 |
| Citation | 438 P.3d 491 |
| Parties | STATE of Utah, Respondent, v. D. Chris ROBERTSON, Petitioner. |
| Court | Utah Supreme Court |
Elizabeth Hunt, Salt Lake City, for petitioner
Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Solic. Gen., Salt Lake City, for respondent
Having recused himself, Justice Pearce did not participate herein.
On Certiorari to the Utah Court of Appeals
Introduction
¶ 1 Defendant D. Chris Robertson was prosecuted and convicted by the federal government for possession of child pornography. The State of Utah subsequently charged him with twenty counts of sexual exploitation of a minor based on the same conduct. Mr. Robertson argues that Utah Code section 76-1-404 prohibits this subsequent state prosecution. That statute provides that "[i]f a defendant's conduct establishes the commission of one or more offenses within the concurrent jurisdiction of this state and of another jurisdiction, federal or state, the prosecution in the other jurisdiction is a bar to a subsequent prosecution in this state if ... the former prosecution resulted in an acquittal, conviction, or termination of prosecution ...; and [ ] the subsequent prosecution is for the same offense or offenses."
¶ 2 Under our previous interpretation of section 404, this statute would present no barrier to the current prosecution. In State v. Franklin ,1 we concluded that section 404 incorporated the "dual sovereignty" doctrine, a principle of double jeopardy law that permits subsequent prosecutions by different sovereigns, even for the "same offense." The court of appeals affirmed Mr. Robertson's convictions in accordance with this precedent.
¶ 3 Today, we reassess that earlier interpretation and ultimately conclude that it was wrongly decided. Taking into account stare decisis considerations, we overrule Franklin as to that issue and hold that the legislature's use of the phrase "same offense" in section 404 is an express rejection of the dual sovereignty doctrine. Properly interpreted, section 404 requires courts to employ only the Blockburger – Sosa test for determining whether two offenses are the "same offense." Under this test, two offenses are not the same if each requires proof of an element that the other does not.
¶ 4 After articulating the correct interpretation of the statute, we apply it to this case. Because the charged offenses in his federal and state prosecutions are the "same offense" under the Blockburger – Sosa test, and because the record shows that the state prosecution is based on the same conduct that was at issue in the initial federal prosecution, we conclude that section 404, properly interpreted, prohibits the State from prosecuting Mr. Robertson. We therefore reverse the decision of the court of appeals.
¶ 5 In March 2009, one of Mr. Robertson's employees alerted authorities that Mr. Robertson was viewing child pornography on his workplace computer. The Utah Internet Crimes Against Children Task Force (ICAC) began an investigation. Detective Mark Buhman, a Salt Lake City Police Department (SLPD) Officer assigned to the Utah ICAC, was made lead investigator on the case. The Utah ICAC is a "multi-jurisdictional task force that investigates and prosecutes individuals who use the Internet to exploit children."2 The task force has thirty-two local, state, and federal police agency affiliates, including the FBI and the Department of Homeland Security.3 Although the Utah ICAC includes federal affiliates, the initial investigation of Mr. Robertson's case did not involve any federal agents.4
¶ 6 Detective Buhman eventually secured a warrant to search Mr. Robertson's business and seize his computers. During the search, officers seized a black, custom-built computer; a Dell computer; and several computer storage media. Examination of the computers revealed more than 24,000 still images of child pornography and approximately 380 child pornography videos. Mr. Robertson agreed to speak to Detective Buhman during the search and admitted to viewing and downloading child pornography. But he denied re-sending or producing any pornography. Detective Buhman was eventually reassigned and Special Agent Benjamin Lee of the Utah Attorney General's Office took over the case.
¶ 7 Agent Lee concluded the investigation and decided to have the case screened for federal prosecution. Before moving forward with federal screening, Agent Lee sought approval from the Assistant Utah Attorney General who oversaw ICAC cases. Seeking such approval was standard protocol, and the Assistant Utah Attorney General had no objection. The State sought federal prosecution in order to obtain a more severe sentence.5
¶ 8 During federal screening, Agent Lee presented an attorney from the United States Attorney's Office with ten or eleven short digital videos depicting child pornography. Agent Lee testified that these videos "would have been from the Dell computer." The United States Attorney's Office concluded that there was probable cause to support federal prosecution.
¶ 9 Mr. Robertson was indicted by a federal grand jury in September 2009 on one count of possession of child pornography in violation of 18 U.S.C. section 2252A(a)(5)(B) (2008).6 The indictment charged Mr. Robertson with "knowingly possess[ing] computer disks and other materials containing images of child pornography." The indictment also contained a forfeiture notice, requiring Mr. Robertson to "forfeit to the United States ... any and all property ... used or intended to be used in any manner or part to commit and to facilitate the commission of a violation" of the federal child pornography criminal statute. The notice specifically identified the following property to be forfeited: the black custom tower, silver Dell tower, silver Maxtor external hard drive, Quantam Fireball, TDK CD–R Fresenius 11–5–08, and the CD–R 10/05 Latitude D505. Mr. Robertson ultimately pled guilty as charged and was sentenced to time served in jail (two days), five years of federally supervised release, and $75,000 in restitution to be paid to two victims.
¶ 10 Upon learning of the federal sentence, an Assistant Utah Attorney General contacted Agent Lee to "discuss the possibility of filing state charges." After reviewing the evidence, the Assistant Utah Attorney General decided to proceed with state prosecution of Mr. Robertson. The State charged him with twenty counts of sexual exploitation of a minor in violation of Utah Code section 76-5a-3.7 These charges were based on eleven images or videos of child pornography found on each of his two computers.8 The probable cause statement initiating the State's case indicated that the State was prosecuting Mr. Robertson "for the same criminal acts" as the federal prosecution, which the State claimed was permitted "because prosecution under the laws of separate sovereigns does not subject a defendant to double jeopardy."
¶ 11 Mr. Robertson moved to dismiss the State charges, claiming that the State's prosecution violated his constitutional right to due process under the double jeopardy clause of the state and federal constitutions, violated Utah Code section 76-1-404's rule against double jeopardy, and was barred by the doctrines of res judicata and collateral estoppel. He also claimed that the State's prosecution was vindictive. The trial court denied Mr. Robertson's motion to dismiss, finding that the state prosecution following federal prosecution was permissible under current law and that the State's prosecution was not vindictive. As part of its order denying Mr. Robertson's motion, the court specifically found that Mr. Robertson's Utah prosecution was "[b]ased on the same body of evidence" as his federal prosecution. Mr. Robertson filed a petition for interlocutory appeal, which was denied.
¶ 12 After a bench trial where Mr. Robertson did not contest his guilt, he was convicted and sentenced to twenty concurrent terms of one to fifteen years in prison. At the sentencing hearing, the trial court described the case as "basically the same case that was had in federal court, it's based on the same facts." The court decided not to treat the prior federal conviction as an aggravating factor, reasoning that the federal conviction is
¶ 13 Mr. Robertson appealed to the court of appeals, arguing "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."9 The court of appeals affirmed, holding that the Bartkus exception to the federal dual sovereignty doctrine did not apply,10 the Utah Constitution did not prevent the subsequent prosecution,11 and res judicata did not apply because "the State and the federal government are not considered to be in privity for purposes of res judicata."12 In a footnote, the court noted that Mr. Robertson also sought relief pursuant to Utah Code section 76-1-404.13 The court recognized that we have interpreted this section to "provide protections that are consistent with traditional double jeopardy principles" and concluded that the statute did not provide "any greater protection than the constitutional provisions we have addressed herein."14 Mr. Robertson petitioned for certiorari, which we granted. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).
¶ 14 We granted certiorari to address whether the court of appeals erred in holding that Utah Code section 76-1-404 did not bar the...
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