Turley v. Wyrick

Decision Date14 April 1977
Docket NumberNo. 76-1538,76-1538
Citation554 F.2d 840
PartiesErnest TURLEY, Appellant, v. Donald WYRICK, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Eugene H. Buder and Benjamin Roth, American Civil Liberties Union, St. Louis, Mo., filing briefs, for appellant.

John C. Danforth (former Atty. Gen.), John D. Ashcroft, present Atty. Gen. and Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, Mo., filing brief, for appellee.

Before LAY, ROSS and WEBSTER, Circuit Judges.

PER CURIAM.

Ernest Turley appeals from the District Court's 1 denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

On June 11, 1970, two armed men robbed the Laddonia State Bank in Audrain County, Missouri, of approximately $13,000. On July 1, 1970, petitioner and one Haynes were indicted by a grand jury of the United States District Court for the Eastern District of Missouri and charged with robbing the bank in violation of 18 U.S.C. § 2113(a) and (d). Trial was had before a jury, which returned a verdict of not guilty on November 23, 1970.

On January 4, 1971, the prosecuting attorney of Audrain County, Missouri, filed an information charging petitioner with robbery in the first degree by means of a dangerous and deadly weapon, in violation of Mo.Rev.Stat. §§ 560.120 and 560.135. Petitioner moved to dismiss, alleging that his prior federal acquittal barred subsequent prosecution arising out of the same act. The motion was overruled, and the Missouri Supreme Court denied petitioner's application for a writ of prohibition. The Supreme Court denied certiorari. Turley v. Adams, 404 U.S. 1024, 92 S.Ct. 690, 30 L.Ed.2d 674 (1972). On March 30, 1972, a jury found petitioner guilty of robbery in the first degree, and he was sentenced to twenty years imprisonment. The conviction was affirmed on appeal. State v. Turley, 518 S.W.2d 207 (Mo.App.1974), cert. denied, 421 U.S. 966, 95 S.Ct. 1956, 44 L.Ed.2d 454 (1975).

On February 18, 1976, petitioner filed a petition for a writ of habeas corpus. The District Court denied the petition. Turley v. Wyrick, 415 F.Supp. 87 (E.D.Mo.1976). Petitioner now timely appeals and alleges three related, but distinct, grounds for relief: (1) that the "dual sovereignty" doctrine permitting successive state and federal prosecutions for the same act has been "eroded" by subsequent decisions and should be discarded; (2) that the doctrine of collateral estoppel enunciated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), bars the state from relitigating issues decided in petitioner's favor at the prior federal trial; and (3) that the state is bound to observe the federal acquittal by virtue of the full faith and credit clause, U.S.Const., Art. IV, § 1, or by virtue of 28 U.S.C. § 1738.

A. "Dual Sovereignty"

It is a basic principle of federalism that successive prosecutions by the state and federal governments do not constitute double jeopardy. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684, rehearing denied, 360 U.S. 907, 79 S.Ct. 1283, 3 L.Ed.2d 1258 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed.2d 314 (1922). This principle is based on the concept of "dual sovereignty" i. e., one act may constitute separate and distinct offenses against both the state and federal governments. Thus, a defendant who is prosecuted by both the state and federal governments is not twice put in jeopardy for the same offense.

Petitioner contends that subsequent cases have eroded the dual sovereignty doctrine. He places particular reliance upon Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), which overruled Bartkus v. Illinois to the extent that Bartkus held that the Fifth Amendment guarantee against double jeopardy does not apply to the states. We find nothing in Benton v. Maryland, however, that casts a shadow on the validity of the dual sovereignty doctrine enunciated in Bartkus and Abbate.

Petitioner's reliance on Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); and Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), is similarly misplaced. None of those cases dealt with the double jeopardy issue in the context of successive federal-state prosecutions, and we find nothing in those cases which indicates that the Supreme Court no longer adheres to the dual sovereignty doctrine.

In decisions subsequent to Waller, Elkins and Murphy, this Court has consistently upheld the validity of the dual sovereignty doctrine. Sappington v. United States, 523 F.2d 858, 860 (8th Cir. 1975); United States v. Johnson, 516 F.2d 209, 212 & n.3 (8th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 112, 46 L.Ed.2d 85 (1975); United States v. Delay, 500 F.2d 1360, 1362 (8th Cir. 1974); United States v. Synnes, 438 F.2d 764, 773 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). The other circuits are in agreement. See, e. g., Martin v. Rose, 481 F.2d 658, 659-60 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973); United States v. Jackson, 470 F.2d 684, 689 (5th Cir. 1972), cert. denied, 412 U.S. 951, 93 S.Ct. 3019, 37 L.Ed.2d 1004 (1973); United States v. Crosson, 462 F.2d 96, 103 (9th Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 569, 34 L.Ed.2d 517 (1972); Goldsmith v. Cheney, 447 F.2d 624, 628 n.3 (10th Cir. 1971). We are apprised of no reason to depart from the sound logic of these cases.

B. Collateral Estoppel

Petitioner's second contention is that the doctrine of collateral estoppel enunciated in Ashe v. Swenson, supra, barred the state's prosecution in the instant case. In Ashe, the Court held:

(W)hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

Id. 397 U.S. at 443, 90 S.Ct. at 1194 (emphasis added). As the above-quoted language indicates, the flaw in petitioner's argument is that the collateral estoppel doctrine does not apply when different sovereigns and, thus, different parties are involved in the litigation. United States v. Johnson, supra, 516 F.2d at 211; Ferina v. United States, 340 F.2d 837, 839 (8th Cir.), cert. denied, 381 U.S. 902, 85 S.Ct. 1446, 14 L.Ed.2d 284 (1965). See also United States v. Brown, 547 F.2d 438, 444 (8th Cir.1977); United States v. Kills Plenty, 466 F.2d 240, 243 (8th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 971, 35 L.Ed.2d 278 (1973). 2

C. Full Faith and Credit

Petitioner's final contention is as unpersuasive as it is novel. He alleges that his prosecution by the State of Missouri amounted to a denial of full faith and credit to the federal judgment of acquittal. The federal judgment, however, only determined that petitioner did not violate 18 U.S.C. § 2113(a) and (d); it did not determine whether petitioner violated Mo.Rev.Stat. §§ 560.120 and 560.135. There was thus no denial of full faith and credit. The remainder of petitioner's allegation in this regard is merely a restatement of his collateral estoppel argument, discussed supra.

Having found no merit in petitioner's arguments, we affirm the order of the District Court.

LAY, Circuit Judge, concurring.

I concur in the result reached. I am bound by the numerosity of opinions in this circuit and elsewhere which construe 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), as barring a double jeopardy claim under the dual sovereignty doctrine.

Upon further reflection, however, I am not convinced that subsequent decisions 1 of the Supreme Court have not fully eroded Bartkus and Abbate and that the double jeopardy defense should be sustained under the facts of this case. Recent state court decisions have explored the question of successive federal-state prosecutions for the same crime and have found the underpinnings of Bartkus and Abbate unconvincing. See People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971); and State v. Fletcher, 22 Ohio App.2d 83, 259 N.E.2d 146 (1970), reversed, 26 Ohio St.2d 221, 271 N.E.2d 567 (1971), cert. denied sub nom., Walker v. Ohio, 404 U.S. 1024, 92 S.Ct. 699, 30 L.Ed.2d 675 (1972).

The facts are significant here; they eloquently plead the petitioner's case. They serve to demonstrate the fallacy in barring the claim of double jeopardy under the dual sovereignty doctrine. The interests sought to be protected by the federal law are not substantially different than those sought to be protected by the state law. The result of applying the dual sovereignty doctrine in this case is that the interests of the state and federal government are amply protected and the interests of the individual are ignored. The double jeopardy clause was written for the protection of the individual not the state or federal government.

In the instant case around noon on June 11, 1970, the Laddonia State Bank was robbed of approximately $13,000 by two armed robbers wearing stocking masks. The first robber forced a bank employee to fill a sack with money from the cash drawer, while the second robber covered him from the lobby. After three bank employees tentatively identified the petitioner as strongly resembling the second robber, the FBI arrested him. A federal grand jury indicted the petitioner with robbing the Laddonia State Bank in violation of 18 U.S.C. § 2113(a) and (d).

At the trial four bank employees identified petitioner as the second robber. Two other witnesses placed petitioner in Laddonia the day and morning before the robbery. Three defense witnesses testified that petitioner was in St. Louis the day of the robbery. The alibi was...

To continue reading

Request your trial
35 cases
  • State v. Moeller
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...In such circumstances, the state is not collaterally estopped from maintaining a prosecution against the defendant. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977); United States v. Johnson, 516 F.2d 209, 211 (8th Cir. 1975); Martin v. Rose, 481 F.2d 658, 660 (6th Cir.), cert. denied, 4......
  • Com. v. Cepulonis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 1978
    ...conduct." 359 U.S. at 155, 79 S.Ct. at 697.4 See, e. g., United States v. Corbo, 555 F.2d 1279, 1281 (5th Cir. 1977); Turley v. Wyrick, 554 F.2d 840 (8th Cir. 1977) (prior Federal acquittal of bank robbery); Brown v. United States, 551 F.2d 619 (5th Cir. 1977); Martin v. Rose, 481 F.2d 658 ......
  • People v. Halim, B271770
    • United States
    • California Court of Appeals
    • August 21, 2017
    ...and Credit Clause could not be used to deny another state its sovereign power to enforce its own criminal law. And in Turley v. Wyrick (8th Cir. 1977) 554 F.2d 840, 842, the Eighth Circuit held that a defendant's prosecution by a state following his acquittal in federal court for the same o......
  • People v. Gay
    • United States
    • Supreme Court of Michigan
    • March 4, 1980
    ...different in relation to Michigan's sovereign interest. 398 Mich. 459, 461, 247 N.W.2d 866. See also, Turley v. Wyrick, 554 F.2d 840, 844 (C.A.8, 1977) (Lay, J., concurring). Consequently, in relation to the maximum penalties possible in Cooper, the potential maximum penalties involved in t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT