Justice Building Blog, has an interesting item today, SHOOTING FISH IN A BARREL. Here's the nub of it,
The Feds are scanning the calendars and investigating cases where clients plead guilty to Carrying a Concealed Firearm, many times for Credit Time Served or a withhold and probation. The Feds are then, after the plea in state court, indicting the defendant for possession of a firearm by a convicted felon, where the penalty is a 15 year (or as they say in Fed land- 180 month) minimum mandatory prison sentence.
It's kind of hard to defend a client in federal court to a charge he has already pled guilty to in State Court.
On the one hand, this isn't technically double jeopardy as the law understands it (the federal offense has an additional element — being a felon — so it's not the same offense, nor an included one). On the other hand, it probably is double jeopardy as the rest of the world understands it.
Rumpole proposes conditional pleas (or not pleading at all) as a workaround. One commentator suggests not carrying a gun if you are a convicted felon. Opinions as to whether the federal prosecutors are acting reasonably also seem divided. There is something about the surprise element of punishment for an offense that the offender could reasonably think is a closed and adjudicated matter which I find troubling. And I don't much like the duplication of effort. But otherwise this is no worse jurisprudentially than a lot of stuff we accept for good reason, including federal prosecution of civil rights violations when states bobble the treatment of the underlying criminal prosecution.
This sort of abuse is derivative of the wrongful mutation of the commerce clause into a grant of general police power for the federal government. There’s no (honest) enumerated powers basis for the federal felony.
I’m skeptical, given DOJ’s explicit Petite policy:
“The purpose of this policy is to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.
“This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General. …
“The first substantive prerequisite is that the matter must involve a substantial federal interest. This determination will be made on a case-by-case basis, applying the considerations applicable to all federal prosecutions. See Principles of Federal Prosecution, USAM 9-27.230. Matters that come within the national investigative or prosecutorial priorities established by the Department are more likely than others to satisfy this requirement.
“The second substantive prerequisite is that the prior prosecution must have left that substantial federal interest demonstrably unvindicated. In general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest. That presumption, however, may be overcome when there are factors suggesting an unvindicated federal interest.”
United States Attorneys’ Manual 9-2.031
If the allegations are true, it should be pretty easy to identify specific cases where DOJ has piled on.