This indictment charges defendant Francis J. Sheeran [Sheeran] with two felony counts of criminal solicitation in violation of 11 Delaware Code § 502. Defendant has moved for dismissal of the indictment on the following grounds:
(1) That prosecution is barred by double jeopardy and by 11 Delaware Code § 209, and
(2) That defendant's right to a speedy trial has been violated.
Defendant's contention that this prosecution is barred by double jeopardy and by 11 Del.C. § 209 relate to defendant's acquittal of charges brought against him in the United States District Court for the Eastern District of Pennsylvania
The substance of the indictment in the Federal prosecution identified above is described in considerable detail in an Opinion by Chief Judge Latchum in United States v. Boffa, D.Del., 513 F.Supp. 444 (1980) as follows:
Turning to the indictment in this case, Count I charges criminal solicitation in that:
Count II charges criminal solicitation in that:
The Federal indictment in describing the "manner and means of the conspiracy" alleges in paragraph 7. f. iv. that defendant Sheeran "would and did order Charles Allen to blow up and cause an explosion at HIAB Crane and Loaders, Inc., Newark, Delaware;" and in paragraph 7. f. vii. alleges that defendant Sheeran "would and did order Charles Allen to physically assault and beat up an official of HIAB Cranes and Loaders, Inc., Newark, Delaware".
Turning to the issue of double jeopardy under the applicable standards under the United States Constitution, the decisions of the United States Supreme Court have consistently recognized the principle that each jurisdiction may prosecute and punish violations of the law of that jurisdiction. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), 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. 314 (1922). If the conduct of a person constitutes a violation of the laws of more than one jurisdiction, each jurisdiction may successively prosecute the violation. Ibid. This principle has been held to apply where one jurisdiction is a State and the other jurisdiction is the United States. Ibid; Turley v. Wyrick, 554 F.2d 840 (8th Cir.), cert. den. 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1980); United States v. Johnson, 516 F.2d 209,
Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), cited by defendant involved successive prosecutions by the same State and is not pertinent to the issues under consideration here except insofar as it holds that a State is bound by the double jeopardy restraint of the Fifth Amendment to the United States Constitution through the Fourteenth Amendment.
Cases cited by defendant do not assist his position. Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971) and Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972) both involved successive prosecutions in the same court; the only real issue in each prosecution was whether defendant was the person who had committed the crime; and defendant was acquitted in the first prosecution. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) and Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) held that double jeopardy bars a subsequent prosecution in the same court for a lesser included charge after acquittal of a more serious charge. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969) applied double jeopardy principles to sentencing after a second trial following reversal of a prior conviction for the same offense. This defendant has not been subjected to successive prosecutions in this State nor is the offense for which defendant is being prosecuted here a lesser included offense for which he could have been prosecuted by the Federal government at the time of or as an alternative to the Federal prosecution.
Defendant's next contention is that this prosecution violates the double jeopardy provision of Article I, Section 8 of the Delaware Constitution, which provides:
Historically, the protective restraint provided by the Delaware decisions which have applied this provision focused on the identity of the offense charged in the successive prosecutions. State v. Norris, Del.Gen. Sess., 73 A.2d 790 (1950); State v. Simmons, Del.Super., 99 A.2d 401 (1953). The Supreme Court elaborated on this applicable consideration in State v. Turner, Del.Super., 168 A.2d 539 (1961) as follows:
State v. Heitter, Del.Supr., 203 A.2d 69 (1964) departed from the traditional test of Norris and Simmons and stated that:
However, in applying that language, the Delaware Supreme Court in Heitter held that while prosecution of defendant in the Municipal Court for reckless driving which resulted in the automobile accident which ultimately resulted in death barred subsequent prosecution for manslaughter by motor vehicle based on reckless driving, it did not bar prosecution for manslaughter based
In substance the two acts charged in the Delaware indictment are two of the many acts charged in the Federal indictment as being a part of the conspiracy. The heart of Count I of the Federal indictment is the charge of conspiracy "to violate Title 18, United States Code, Section 1962(c), to wit, to knowingly conduct and participate, directly and indirectly, in the conduct of the affairs of an enterprise engaged in and the activities of which affected interstate commerce, through a pattern of racketeering activity". Count I further charged that "defendants were employed by and associated with an enterprise, as defined by Title 18, United States Code, Section 1961(4), to wit: a group of individuals associated in fact for the purposes of enhancing, protecting, and perpetuating their individual and collective positions in the organized labor and organized criminal communities within which they associated by acts including murder, attempted murder, arson and union embezzlement". Count II charged similar violations but did not mention the subject matter covered by the Delaware indictment. Count III charged that defendant Sheeran and Charles Allen travelled in interstate commerce to Delaware intending to promote, establish and carry on an unlawful activity, being arson in violation of 11 Delaware Code § 801, being in violation of Title 18, United States Code § 1952(a)(3) and 2.
From the analysis of the Federal indictment and of the present indictment, it is clear that the Federal offenses charged involved a number of elements which were essential to the Federal prosecution which are not required in connection with this prosecution. Applying the tests enunciated by the Delaware Supreme Court, I conclude that under Delaware precedent, this prosecution is not barred by virtue of defendant's acquittal in the Federal prosecution.
Defendant also contends that this case is barred by 11 Del.C. § 209(1)
In State v. Esham, Del.Super., 321 A.2d 512 (1974), this Court held that the words "same conduct" as used in 11 Del.C. § 208, which is one of a series of sections dealing with a situation where former jeopardy is a consideration, means identical conduct. 11 Del.C. § 209 uses the words "the conduct" and "same conduct". I conclude that these words as used in § 209 are used interchangeably and that they refer to a particular event or activity and that the conduct constituting that event must be that which is relied on as constituting an offense in both the former prosecution and the present prosecution.
It will be noted that under the Delaware Criminal Code not every former prosecution bars subsequent prosecution. Under § 208
Stated another way, a requisite of § 209 is that the conduct must constitute an offense in each jurisdiction. Clearly, the conduct charged in this case could not, without more, provide all of the requisites for the Federal prosecution. Could the conduct which is the subject of these charges have been prosecuted in the Federal Court without additional elements or facts? It appears that it could not. Accordingly, this case does not involve conduct constituting an offense within the concurrent jurisdiction of this State and of the United States and is not barred by 11 Del.C. § 209(1).
In view of the conclusion reached herein based on the analysis of the related sections of the Delaware Criminal Code, a review of cases from other jurisdictions involving different statutory provisions would not be of assistance here.
Defendant also contends that this prosecution should be barred under the principle of collateral estoppel. That concept was defined by the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) as follows:
In determining whether a prosecution is affected by collateral estoppel, the Court must examine the first proceeding to determine whether a jury in the first case might rationally have based its verdict upon an issue other than that which the defendant seeks to foreclose from consideration in the second case. Ibid; United States v. Pappas, 445 F.2d 1194 (3 Cir.) (1971).
The Attorney General contends that collateral estoppel cannot apply in this case because the parties are not the same in the former prosecution as in this case, citing Turley v. Wyrick, supra; United States v. Johnson, supra; Ferina v. U.S., 340 F.2d 837 (8 Cir.), cert. den. 381 U.S. 902, 85 S.Ct. 1446, 14 L.Ed.2d 284 (1965). It is not necessary to discuss this contention in view of 11 Delaware Code § 209(2) which is discussed hereafter.
The principle of collateral estoppel was embodied in §§ 208 and 209 of the Delaware Criminal Code, Title 11, Delaware Code, Part I. Subsection (2) of each of those sections contains substantially the same language,
Defendant contends that the doctrine of collateral estoppel prevents evidence which was used in one prosecution from being used in a subsequent prosecution. This contention is overbroad in that it overlooks an essential element for collateral estoppel to apply, namely, that in order for the jury to acquit in the first prosecution the jury must have found that a matter which is essential in this prosecution had not been established beyond a reasonable doubt in the prior prosecution.
The process for determining the application of the collateral estoppel principle was described in Ashe v. Swenson, supra, as follows:
The Court further continues that:
It has been noted above that the Federal prosecution contained many alleged overt acts in addition to the two which are the subject of this indictment and that there are substantial requirements under the Federal statutes which the Federal indictment charged defendant to have violated which had to have been proved by evidence in order to warrant a conviction in the Federal prosecution and that the failure of any one of those matters to have been established beyond a reasonable doubt could have resulted in an acquittal irrespective of the sufficiency, of the proof with respect to the matters charged in this indictment. From a reading of the Federal indictment, it could be surmised that the matters charged in this indictment were not dominant matters in the issue before the jury in that prosecution. However, the Court is not in a position to determine whether the jury necessarily was required to make a determination that the matters which are charged in this case were without substance in order to acquit defendant of the charges in the Federal indictment, since the failure to establish facts supporting the other requisites for conviction under the Federal statutes would have led to an acquittal even
Defendant contends that the driving force behind this prosecution is the FBI and that the Delaware Attorney General was merely acting as an alter ego for the FBI in pursuing this Delaware prosecution and that the Attorney General is pursuing this as a surrogate prosecutor for the Federal authorities.
Defendant cites the language found in certain dissenting opinions in support of the proposition that the participation of the Federal authorities in a State prosecution may invoke double jeopardy considerations where there had been a prior Federal prosecution. Thus, Justice Black in a dissenting opinion joined in by Chief Justice Warren and Justice Douglas in Abbate v. United States, supra, stated:
Language having a similar effect was used by Justice Brennan in a dissent joined in by Chief Justice Warren and Justice Douglas in Bartkus v. Illinois, supra, at p. 165 of 359 U.S., at p. 703 of 79 S.Ct. The issue raised by the dissent in Bartkus was addressed in the majority opinion of the Court where it was stated that the mere fact that an agent of the FBI who conducted the investigation on behalf of the Federal government turned over evidence to the State prosecuting officials did not support a claim that the State was merely a tool of the Federal authorities where the prosecution was undertaken by State officials in the exercise of their discretionary responsibility to enforce the criminal laws of the State.
I do not find that the material presented here entitles defendant to a different result from that announced by the majority in Bartkus.
Based on the material presented, the motion to dismiss on the grounds of double or former jeopardy, collateral estoppel and 11 Del.C. § 209 must be denied.
Defendant's second ground for dismissal of the complaint is that he has been denied speedy trial. Defendant's contention is that the speedy trial test should apply to the period commencing in September 1979 when defendant was indicted in the Federal proceeding and that defendant was an accused insofar as these charges were concerned from that time even though he was not indicted in this State until December 1980. Additionally, defendant points out that the initial Delaware indictment in December 1980 was followed by a second indictment in late December 1980 and in turn was followed by a third indictment in February 1981 and that it is the charges of the third indictment which are involved here and that each of the prior Delaware indictments was defective.
Throughout this case defendant has been free on bail. Therefore, this factor which is a significant factor in many speedy trial decisions is not present in this instance.
The right of an accused to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Johnson v. State, Del.Supr., 305 A.2d 622 (1973). Superior Court Criminal Rule 48(b) enjoins "unnecessary delay". State v. Korotki, Del.Super., 418 A.2d 1008 (1980).
Defendant argues that he has suffered delay of over two years during which the Federal prosecutors had information on which to indict.
The Federal decisions do not address the question of whether the speedy trial considerations should look to prior prosecution in another jurisdiction. Since prosecution in more than one jurisdiction is recognized as constitutionally valid
There has been no showing that the Delaware charges have been delayed in order to gain tactical advantage. Cf. State v. Preston, Del.Supr., 338 A.2d 562 (1975). Nor does the fact that the Federal authorities had information that defendant committed an offense which was chargeable under Delaware law invoke the speedy trial protection prior to the first Delaware indictment. United States v. Marion, supra.
Defendant also contends that the State is merely prosecuting these charges on behalf of the Federal government and, therefore, speedy trial concepts should be applied as though the State was aware of the events when tape recordings of the events were made by the Federal government in November 1978. The subject of the identity of the State and Federal prosecutions has been discussed above in another context and the conclusion reached above that the record does not establish that this prosecution should be viewed as tainted by the prior Federal prosecution is the answer to this contention.
Applying the above conclusions, the length of delay of the Delaware prosecution began with the first Delaware indictment on December 9, 1980 (which preceded defendant's arrest) and continued until March 18, 1981 when defendant filed the present motions—a period of 3½ months.
Factors which bear consideration in determining whether the speedy trial protection has been violated are length of delay, reason for the delay, defendant's assertion of right and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Johnson v. State, supra. This is characterized as "a balancing test, in which the conduct of both the prosecution and defendant are weighed." Ibid.
Applying the Barker tests, the length of the delay is 3½ months and the reason for 3 months of the delay was that the Attorney General procured new indictments correcting defects or inadequacies in the earlier indictments. It does not appear that during the period prior to the present motion defendant requested speedy trial and there has been no showing of prejudice resulting to defendant as a result of the delay. From this analysis, defendant's right to speedy trial has not been violated and therefore the motion on the ground of speedy trial must be denied.
Based on the foregoing considerations, defendant's motion to dismiss on the ground that the prosecution is barred by double jeopardy and by 11 Del.C. § 209 is denied; defendant's motion to dismiss on the ground that defendant has not been afforded a speedy trial is denied.
IT IS SO ORDERED.
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this State under the following circumstances:
Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution in a court having jurisdiction over the subject matter of the second prosecution under the following circumstances:
When a prosecution is for a violation of the same statutory provisions and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances:
A prosecution is not a bar within the meaning of §§ 207, 208 and 209 of this title under any of the following circumstances: