Collateral Estoppel and the Plea Agreement

When a criminal defendant enters a plea, I think both parties have an expectation that the case is over.  Both parties have an expectation that the defendant will take his or her lumps and the State will forever abandon any other charges related to the case at hand.

But, when a criminal defendant enters a plea, the case is not necessarily resolved.  For sure, principles of double jeopardy would prevent the State from subsequently prosecuting a defendant for the “same offense.” But, double jeopardy is fairly narrow and has no bearing upon other offenses that were part the same criminal episode.  Following a plea, unless collateral estoppel  has been integrated into the plea agreement, there is little to stop the State from turning around and prosecuting a defendant for other related offenses.

Isn’t this all academic?  I mean, when does a busy prosecutor ever plea a case and then go back to his office and draft a new charging document alleging additional crimes from the same criminal episode? When does a prosecutor sit on charges she could have included in a charging document and then go after a defendant after he pleads?

Cynical, imaginative minds might conjure many scenarios where a prosecutor would engage in this sort of subterfuge.  Fortunately, most prosecutors I know are honest people who—albeit firm in their belief in the laws they are enforcing—enforce the law fairly and ethically.  Nonetheless, there are some scenarios worth considering.

There are times when the State Attorney’s Office prosecutes a series of acts in its circuit that are actually part of a larger, multi-circuit criminal enterprise.   In these instances, it is not unheard of for the Office of Statewide Prosecution to institute a separate criminal action focusing on the multi-circuit criminal enterprise.

In this event, if a criminal defendant were to plead guilty or no contest in exchange for a Rule 3.151(d) waiver with the State Attorney’s Office, she would arguably estop the Office of Statewide Prosecution from filing charges.  However, if she does not negotiate the waiver, she may serve a prison sentence only to find herself heading back to county jail on a detainer.  Even if one has little sympathy for this defendant, one should also be able to see the injustice and danger of piecemeal criminal prosecutions.

Another example can be found in Malik v. State, 640 So. 2d 224 (Fla. 5th DCA 1994).    Mr. Malik was arrested for burglary with an assault after being accused of kicking in his wife’s door and committing several assaults inside her home.

Prior to the filing of a felony information in circuit court, someone filed a criminal mischief charge in county court for the damage to the door.  Mr. Malik wisely pled to the misdemeanor charge. Malik, 640 So. 2d at 225.

Unwisely, however, when he pled to a misdemeanor criminal mischief charge, Mr. Malik did not bargain for collateral estoppel.  The result?  Mr. Malik was still prosecuted for burglary with an assault in circuit court after his plea and sentencing for the criminal mischief. 640 So. 2d at 225.

When deciding Malik, the Fifth District made this observation:

The issue of collateral estoppel is controlled by Rule 3.151, Florida Rules of Criminal Procedure. Consolidation would have been proper under subsection (b) had Malik (or the State) requested it. Instead, Malik pled. He is, therefore, bound by subsection (d):  A defendant may plead guilty or nolo contendere to a charge of one offense on the condition that other charges on related offenses be dismissed or that no charges of other related offenses be instituted…. [emphasis added].  That was not done in this case. Even though Malik may not have   been aware of the filing of the felony information, he was aware that he had been arrested on a felony affidavit and was on bond in a felony case. He cannot ignore this knowledge, seek no clarification, and then claim collateral estoppel.

Id.

Grubbs v. State, 771 So. 2d 49 (Fla. 5th DCA 2000) offers a third example.  Police arrested Mr. Grubbs for burglary of a conveyance after someone saw him breaking a car window.  The State Attorney’s Office filed a criminal mischief information in county court for the damage to the window.  Mr. Grubbs pled guilty to the misdemeanor and received a negotiated sentence.  The State then charged him with attempted burglary of a conveyance in circuit court.  Grubbs moved to dismiss the burglary charge on jeopardy grounds.  Id. at 50.

The Fifth District Court of Appeal applied the modified Blockburger test set forth in Florida Statutes Section 775.021(4) and easily concluded that the State of Florida had not twice prosecuted Grubbs for the same offense.  However, the Fifth DCA addressed (albeit in dicta) the issue of collateral estoppel:

Appellant did not raise the issue of consolidation of offenses either in the trial court or before this court, but because the issue is pertinent, we discuss it.  Fla. R. Crim. P. 3.151 deals with consolidation of related offenses. Rule 3.151(a) defines “related offenses” as those which are triable in the same court and are based on the same act or transaction or on two or more connected acts or transactions. Rule 3.151(c) provides for dismissal of related charges after trial. However, appellant could not have availed himself of the benefit of this rule because he was never tried on the criminal mischief charge, but pled thereto. In order for a defendant to obtain dismissal of “related charges” he must first have been subjected to trial on one of the related offenses, but where he pleads guilty or nolo contendere to charges, he is not entitled to a dismissal of subsequently filed charges.

Id.

The Fifth District took the time to address collateral estoppel, even though double jeopardy was the only issue addressed in the briefs (probably because no one thought to include a collateral estoppel clause in the plea agreement—hint, hint).  And, the Fifth District correctly observed that a defendant who pleads guilty is not automatically entitled to the benefits of collateral estoppel.

This is why defense attorneys and prosecutors should at least be aware of the contours of collateral estoppel following guilty and no contest pleas.  It may be the case that the parties consciously choose not to bargain for collateral estoppel.  But, even then, the omission of a collateral estoppel clause should be purposeful, explained to the client, and made explicit in the plea agreement.

The astute reader will have probably already noticed that double jeopardy and collateral estoppel—albeit closely related—require completely separate analyses.  While a detailed analysis of those two principles of law is beyond the scope of this post, it may be helpful for the reader to understand what I perceive as the differences between the two legal doctrines in the context of Florida criminal law.

Double jeopardy analysis under Florida law emanates from the Fifth Amendment to the United States Constitution (as incorporated against the states through the Due Process Clause of the Fourteenth Amendment) and from Article I, Section 9 of the Florida Constitution.  See Benton v. Maryland, 395 U.S. 784, 795-796, 89 S.Ct. 2056, 23 L.Ed.2d 2056 (1969). See also Valdes v. State, 3 So. 3d 1067, 1069-1070 (Fla. 2009).

Double jeopardy is instantiated in Florida law through Blockburger v. United States, 284 U.S. 299, 304 52 S.Ct. 180, 76 L.Ed. 306 (1932) and section 775.021(4).  See Valdes, 3 So. 3d at 1070.  The overarching question to be addressed in double jeopardy analysis is whether a criminal defendant will be subject to prosecution, conviction or punishment more than once for the “same offense.”  U.S. Const. amend. V; Fla. Const. Art. I, § 9; Valdes, 3 So. 3d at 1069-1070.

By contrast, collateral estoppel has its origins in the common law doctrines that developed into what we now call civil procedure.  In 1970, the United States Supreme Court found that, in criminal law, the doctrine of collateral estoppel was embodied in the Double Jeopardy Clause of the Fifth Amendment and, therefore, enforceable against the states through the Due Process clause of the Fourteenth Amendment.  Ashe v. Swenson, 397 U.S. 436, 445-446, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

Unlike double jeopardy “same offense” analysis, the overarching question to be addressed in collateral estoppel analysis is whether an issue of ultimate fact in a criminal prosecution has been previously resolved by a valid final judgment arising from litigation between the same parties (i.e. the State of Florida and a criminal defendant).  See Id. at 443.

Thus, in Ashe, the United States Supreme Court had little trouble finding that the State of Missouri was estopped from prosecuting Mr. Ashe—who had been accused of robbing multiple people during a poker game—for the robbery of one of the poker players after he had been previously acquitted of robbing another of the players.  397 U.S.at 445-446.

As the Court reasoned, in the first trial, the evidence was overwhelming and uncontested that a robbery had occurred and the people playing poker were the victims.  The only ultimate fact in dispute during the first trial was whether Mr. Ashe was one of the robbers.  Id.

Since the first jury had determined that the evidence was insufficient to prove that Mr. Ashe had committed the robbery, the State of Missouri was estopped from putting the same question to a subsequent jury.  Id.

The doctrine of collateral estoppel is instantiated in Florida criminal law through Florida Rule of Criminal Procedure 3.151.

Rule 3.151(c) states:

Dismissal of Related Offenses after Trial. When a defendant has been tried on a charge of 1 of 2 or more related offenses, the charge of every other related offense shall be dismissed on the defendant’s motion unless a motion by the defendant for consolidation of the charges has been previously denied, or unless the defendant has waived the right to consolidation, or unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging the other offense or offenses.

“2 or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions.” Fla. R. Crim. P. 3.151(a) (2017).

Rule 3.151(d) states:

Plea. A defendant may plead guilty or nolo contendere to a charge of 1 offense on the condition that other charges of related offenses be dismissed or that no charges of other related offenses be instituted. Should the court find that the condition cannot be fulfilled, the plea shall be considered withdrawn.

The juxtaposition of these subsections reveals an interesting anomaly: if a criminal defendant forces the State to spend time and resources on a trial, the defendant is automatically free from additional prosecutions for related offenses, provided the defendant did not waive the right and the State cannot show that it couldn’t get its case together in time despite its due diligence. However, a defendant can plea away her right to a trial without receiving the benefit of collateral estoppel.  See e.g. State v. Harris, 375 So. 2d 758, 760 (Fla. 4th DCA 1978).

All of this should provide a few takeaways for the reader.  Firstly, collateral estoppel is not automatic following the entry of a guilty or no contest plea.  If a defendant doesn’t bargain for collateral estoppel in the plea agreement, there is very little to stop the State from prosecuting him again for other related offenses.  Malik, 640 So. 2d at 225; Grubbs, 771 So. 2d at 50.

Secondly, there should be nothing controversial about including collateral estoppel clauses in Florida plea agreements.  When a criminal defendant enters a plea, she relieves  the State of the significant burden of proving the charges beyond a reasonable doubt.  By entering a plea, a defendant accepts criminal punishment without requiring the State of Florida to call a single witness or enter a single exhibit into evidence.  It seems, then, a matter of fundamental fairness that the State of Florida would waive its ability to continue to prosecute the defendant for related offenses in exchange for the relinquishment of the right to a jury trial.

Finally, unless there is a standard collateral estoppel clause in the plea agreement you are using, I would humbly suggest that you consider including a clause in your plea agreements that reads something like this:

Pursuant to rule 3.151(d), in exchange for the defendant’s guilty [no contest] plea(s) set forth in this agreement, the State of Florida agrees to dismiss any related offenses now pending against the defendant and not to institute charges on any other related offenses.  The term “related offenses” is defined in rule 3.151(a).

 

 

Handling Petty Offenses and Misdemeanors on Federal Land

Florida may not be home to as much federally controlled land as some of the big western states, but we have enough to warrant a post on this subject.  In my home county alone, (Brevard) we have an Air Force base and the Cape Canaveral property.  In the center of the State, many counties are home to portions of the Ocala National Forest.  In north and northwest Florida, there are the Apalachicola and Osceola National Forests.  Additionally, there are monuments and lands all over the state controlled by the National Park Service.  You get the point.

This post is certainly not meant to be all encompassing for the practitioner or interested reader approaching the subject.  But, it will hopefully provide a good starting point.

18 U.S.C. § 7 defines special maritime and territorial jurisdiction of the United States government.   Included in the definition is

[a]ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

18 U.S.C. § 7(3).

18 U.S.C. § 13 (The Assimilative Crimes Act), states in relevant part:

Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in [18 U.S.C. § 7] of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

In other words, if a person commits a crime or a civil infraction on federally controlled land, and the crime or infraction is not proscribed by the United States Code, the Assimilative Crimes Act serves as a “gap filler” to adopt state or other local laws where federal law is silent.  See U.S. vs. Gaskill, 134 F. 3d 1039, 1042 (11th Cir. 1998).  It is important to note that, even though a federal prosecution under the Assimilative Crimes Act may allege a violation of a state statute, the state statute is “assimilated” into the United States Code.  Id.  These are federal prosecutions and the person charged is accused of a federal crime.

While, in theory, many serious Florida crimes could be assimilated under 18 U.S.C. § 13, I am only addressing “petty offenses” and misdemeanors alleged to have been committed on federal land.  Examples include non-criminal traffic violations, reckless driving, DUI etc.

Fed. R. Crim. P. 58 sets forth the procedure for petty offenses and misdemeanors prosecuted in federal court.  Middle District of Florida local rule 6.03 sets forth more specific procedures for petty offenses and misdemeanors prosecuted in the Middle District.

If a person is cited for a petty offense or misdemeanor on federal land, he or she will probably receive a United States District Court Violation notice.  An example can be seen here: https://www.cvb.uscourts.gov/sample.html.

The violation (which can serve as a charging document in some instances under rule 58) will specify whether it alleges a violation of the United States Code, the Code of Federal Regulations or a state statute.  The statute or regulation will then be written in the violation notice (e.g. F.S. § 316.192).  The notice will also specify whether a court appearance is required.

A copy of the violation notice will be given to the defendant and another copy will be sent to the Central Violations Bureau: https://www.cvb.uscourts.gov/index.html. The Central Violations Bureau serves as a “clearinghouse” for all violation notices issued on federal land.

On the violation notice, there may be a reference to “collateral”.  This is the equivalent of fine.  There may also be reference to “forfeiture of collateral.”  This is fed-speak for paying the fine.  The violation notice may give the defendant the ability to forfeit the collateral (i.e. pay the fine) in lieu of going to court, or may require a court appearance.  Note, forfeiting the collateral in lieu of electing a hearing is basically a guilty plea.  No bueno if the defendant is accused of committing a criminal act.   In other words, forfeiting the collateral might cause the defendant to be adjudicated guilty of a federal crime without realizing it!

If the defendant is required to go to court (or elects to go), the matter will be docketed by the Central Violations Bureau.  Don’t bother trying to find the case on PACER at this stage because it’s not there.  The CVB will send the defendant a notice to appear before a magistrate judge.  These proceedings will be governed by Rule 58 and Local Rule 6.03 (if you’re in the Middle District).

One more thing.  What is the maximum possible penalty for a violation of a state statute charged under the Assimilative Crimes Act?  How do you advise your client about the potential risks and benefits of forfeiting the collateral (which will result in a conviction of something) or litigating?

The Assimilative Crimes Act requires that a person charged with an assimilated crime be “subject to a like punishment.”  In the 11th Circuit, it appears that this “like punishment” clause means that federal courts are limited by the statutory maximum term of incarceration set forth the state statute.  Gaskill, 134 F. 3d at 1045.  However, the federal courts are not limited in their ability to impose probation or supervised release longer than the maximum allowed by the state statute.

It is also important to note that this is a federal sentencing, not a state sentencing.  The federal court will apply federal sentencing laws/guidelines/policies even though the defendant is being sentenced for a violation of an assimilated state statute.