Decided: January 13, 1977.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEVEN ABLEMAN, DEFENDANT-APPELLANT
On certification to the Superior Court, Appellate Division, whose opinion is reported at 134 N.J. Super. 517 (1975).
For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. Pashman, J., concurring in result.
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The judgment is affirmed substantially for the reasons expressed in the opinion of the Appellate Division.
PASHMAN, J., concurring in result. While I concur in the majority's affirmance of defendant's conviction, I disagree
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with much of the reasoning in the Appellate Division's opinion, State v. Ableman, 134 N.J. Super. 517 (1975), adopted by the Court today.
Unlike the Appellate Division, I do not conclude that the term "same act" in N.J.S.A. 24:21-*fn251 refers only to those acts expressly prohibited by Sections 19 through 22 of the statute. Id. at 520. See State v. Krell (Ableman), 125 N.J. Super. 457, 461 (Law Div. 1973). This interpretation accurately reflects the Court's approach to those provisions in the context of merger principles,*fn2 but it distorts the meaning of § 25. Under the Court's decisions construing the Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq., each stage in a single, continuous transaction culminating in distribution of an illegal substance may be punished as a separate crime. State v. Ruiz, 68 N.J. 54, 58 (1975); State v. Davis, 68 N.J. 69, 78 (1975); State v. Jester, 68 N.J. 87, 90 (1975). I dissented in those cases because I could discern no explicit legislative intent authorizing conviction and punishment for the separate offenses of distribution and possession with intent to distribute when a single sale was involved. State v. Ruiz, supra, 68 N.J. at 59-69; State v. Davis, supra, 68 N.J. at 86-87; State v. Jester, supra, 68 N.J. at 92-93. See also State v. Valentine,
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69 N.J. 205, 212-216 (1976). I argued that, absent a clear declaration of legislative policy, judicial construction of the statute should be guided by the fundamental principle that a person should not be punished twice for the same offense. State v. Ruiz, supra, 68 N.J. at 66. While the majority found the policies underlying the double jeopardy clause inapplicable to the problem of merger and the task of determining whether the Legislature meant to punish distribution and possession to distribute as separate offenses, see State v. Davis, supra, 68 N.J. at 80, these considerations bear directly on the interpretation of § 25. As the State concedes, this provision was intended to give double jeopardy protection to an individual who has been prosecuted in another jurisdiction for an act which is also illegal under our statute.*fn3
Therefore, the Court must determine whether prosecution for distribution of hashish is barred under principles of double jeopardy, not whether distribution constitutes a different criminal act than possession with intent to distribute. The Appellate Division seemingly recognized this issue in pointing out that defendant's New Jersey prosecution after his conviction in federal court in New York would not be precluded under any of the various tests utilized to determine
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the applicability of double jeopardy. Supra, 134 N.J. Super. at 520.*fn4 On the facts of this case, I agree with the Appellate Division's conclusion that this proceeding is not violative of the ban on multiple prosecution. However, I cannot agree that double jeopardy principles are coextensive with the merger principles applied in the Ruiz-Davis-Jester trilogy, and therefore would not rule out future contentions by other defendants that § 25 encompasses more than a particular criminal act prohibited by N.J.S.A. 24:21-19.
Initially, I note that the protection afforded by § 25 may be constitutionally compelled as well. The State argues that the "dual sovereignty" rule established by Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684, reh. den. 360 U.S. 907, 79 S. Ct. 1283, 3 L. Ed. 2d 1258 (1959) and followed by this Court in State v. Cooper, 54 N.J. 330 (1969) makes § 25 the only obstacle to double prosecution for the same offense. Yet Bartkus may have been undermined by the application of the double jeopardy clause to the states in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Cf. Waller v. Florida,
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397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970), reh. den. 398 U.S. 914, 90 S. Ct. 1684, 26 L. Ed. 2d 79 (1970). Furthermore, the dual sovereignty doctrine has been severely eroded in other contexts. See Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964) (immunity statutes); Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1969) (illegally seized evidence under the Fourth Amendment). In spite of the erosion of this doctrine, however, the traditional rule continues to be applied. See United States v. Johnson, 516 F.2d 209, 211-212 (8 Cir. 1975), cert. den. 423 U.S. 859, 96 S. Ct. 112, 46 L. Ed. 2d 85 (1975); United States v. Albowitz, 380 F. Supp. 553, 554-555 (E.D. Pa. 1974).
Defendant's arguments would be more compelling if his participation in this illegal drug traffic had been confined to a single delivery of 50 pounds of hashish. If that were the case, then I would find a single offense and would bar the second prosecution for the reasons stated in my dissents to the Ruiz-Davis-Jester trilogy. See ante at 146-147 (Pashman, J., concurring). However, defendant's conduct went beyond this particular act of distribution. He had agreed to transport some 500 pounds to a buyer (later revealed to be a federal narcotics agent) from a larger cache of more than 1000 pounds of hashish stored in New York City. He conceded this fact in pleading guilty to the federal indictments for conspiring to possess and distribute and for possession with intent to distribute. In that proceeding, he admitted actual possession of 50 pounds of hashish and constructive possession of the balance. Although he acted as a courier on only one occasion, I cannot ignore these admissions as evidence of his involvement in a far greater web of criminal activity.
The question, then, becomes whether the second prosecution should be barred because the distribution charge was part of the same transaction for which he was convicted in federal court. Defendant argues on the basis of our decisions in State v. Gregory, 66 N.J. 510 (1975) and State v. Currie,
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41 N.J. 531 (1964) that this charge should have been joined with the other charges in a single trial, or alternatively, that we should adopt a ruling precluding successive federal/state prosecutions when all charges are not included within the initial proceeding. Although I am sympathetic to the problems of dual prosecution, I do not find the cited decisions controlling on these facts. In Gregory we emphasized considerations of fairness to a defendant in exercising our rule-making powers to require joinder of charges arising from a single criminal episode. Supra, 66 N.J. at 519. However, we predicated that requirement upon the prosecutor's knowledge of all the charges and the availability of a forum with jurisdiction over all the charges. Id. See State v. Currie, supra, 41 N.J. at 539. In the case at bar, venue limitations prevented the federal court from having jurisdiction over the distribution count. See 18 U.S.C.A. § 3237; Wright, Federal Practice and Procedure: Criminal, § 303. Cf. United States v. Malfi, 264 F.2d 147, 152 (3 Cir. 1959).*fn5
Therefore, even under the "same transaction" test espoused by Justice Brennan in Ashe v. Swenson, 397 U.S. 436, 448-460, 90 S. Ct. 1189, 1196-1203, 25 L. Ed. 2d 469, 478-484 (1970) (concurring opinion), this prosecution
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would be permissible. Id., 397 U.S. at 453 n. 7, 90 S. Ct. at 1199, 25 L. Ed. 2d at 481.
Although I must admit that New Jersey's interest in vindicating its laws by sentencing this defendant to a custodial term of three months, in the wake of a prior federal disposition, is questionable,*fn6 I cannot conclude that it is so fundamentally unfair as to equal the prosecutors' actions in Gregory or Currie. A different case would be presented if the initial prosecution had been in New Jersey. Under those circumstances, where all the charges could be joined, I would not be hesitant to hold that § 25 forecloses a second prosecution by the State.
As I interpret our decision today, we hold that where a defendant involved in a large-scale operation of illegal drug traffic pleads guilty to possession with intent to distribute a great quantity of narcotics in a federal court located in a foreign state, N.J.S.A. 24:21-25 does not stand as a bar to a State prosecution for distribution of a portion of those narcotics. On this basis, I concur in the result.