This case involves the question whether a section of the new Code of Criminal Justice, N.J.S.A. 2C:1-11, prohibits state prosecution for a conspiracy and for substantive offenses when a defendant has been prosecuted in the federal court for earlier acts of that conspiracy. This court concludes that this statute is a bar to prosecution of the conspiracy count but not to those counts charging substantive offenses.
On September 2, 1981 a complaint (Magistrate Docket No. 81-0224B-04) was filed in the United States District Court for the District of New Jersey charging Wanda Sessoms and three
other persons with violations of 18 U.S.C.A. §§ 2 and 1708. The complaint was signed by the U.S. Postal Inspector. The particulars of the complaint alleged the following facts:
1. On or about September 1, 1981 a quantity of Essex County welfare checks were placed in the U.S. mail, which were undeliverable at the addresses specified and had not been returned to the sender, Essex County Department of Citizens Services, Division of Welfare;
2. According to the statement of Ms. Sessoms, defendant Omar Khayyam had on September 1, 1981 given her and the two other defendants a number of checks which they cashed, and that she had received $100 from Khayyam for cashing them;
3. On September 2, 1981 Ms. Sessoms had in her possession two checks, including an Essex County welfare check, and "an identification card in the name of Thelma Joans";
4. On or about September 2, 1981, 23 Essex County welfare checks in envelopes marked with a postage meter date of August 31, 1981 were found in the automobile in which defendants were arrested.
A letter dated September 14, 1981, from Robert S. Steinbaum, Assistant U.S. Attorney, to Peter V. Ryan, Assistant Federal Public Defender, set forth the terms of a "plea agreement" between Ms. Sessoms and the United States Attorney for the District of New Jersey whereby the United States agreed to accept a guilty plea "to a one-count superseding complaint charging a violation of conspiracy to unlawfully open mail in violation of 18 U.S.C. § 371." Ms. Sessoms accepted the plea agreement and agreed to cooperate with the United States Attorney, by disclosing to that office all that she knew about the crimes charged, and to testify before a federal grand jury.
After a superseding complaint was filed in accordance with the agreement, Ms. Sessoms pleaded guilty to the conspiracy charge and was sentenced by a United States Magistrate. An order for dismissal regarding the original charges was entered on December 31, 1981, by leave of court, "with prejudice so long
as the plea and sentence on superseding complaint remain in full force and effect."
About three months later an Essex County grand jury returned an indictment charging Ms. Sessoms and 11 others with conspiracy to commit forgery, attempted theft by deception, official misconduct in office, compounding and theft, in violation of N.J.S.A. 2C:5-2. She was also charged with the substantive crimes of forgery, in violation of N.J.S.A. 2C:21-1 a, and attempted theft by deception, in violation of N.J.S.A. 2C:5-1 and 20-4.
This motion for dismissal is based primarily upon N.J.S.A. 2C:1-11, a statutory prohibition against state prosecutions in certain cases which have been formerly prosecuted in federal court. Defendant also urges that the protections afforded by N.J.S.A. 2C:1-11 were in existence prior to the enactment of the Code of Criminal Justice. In support of this position defendant cites Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959); State v. Ableman, 72 N.J. 145 (1977) and 33 N.J. Practice (Miller, Criminal Law), § 10 at 24 (1982).
The federal cases relied upon to support this proposition are not dispositive. Abbate v. United States, supra, held that a federal prosecution was not barred by the Double Jeopardy Clause of the Fifth Amendment where defendant had previously been acquitted in a state court on charges based upon identical facts. This decision was based upon a "dual sovereign" doctrine which, in essence, holds that conduct which violates both federal and state laws does not constitute a "same offense" as contemplated by the Fifth Amendment.
The same doctrine was followed by the court in the companion case of Bartkus v. Illinois, supra, although this decision was founded upon an interpretation of the Due Process Clause of the Fourteenth Amendment rather than the Double Jeopardy Clause. In Bartkus the court upheld a state court conviction on robbery charges of a defendant who had been previously acquitted
on federal bank robbery charges based upon the same facts. While the protection against double jeopardy contained in the Fifth Amendment has been extended to state prosecutions since the Bartkus decision, see Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), federal courts have consistently ruled that successive state and federal prosecutions for the same criminal act are not barred by constitutional considerations. See, e.g., United States v. Grimes, 641 F.2d 96 (3 Cir. 1981); United States v. Braunstein, 474 F. Supp. 1 (D.N.J.1978). Based upon the foregoing, there exists no bar to the present prosecution based upon federal constitutional guarantees.
This interpretation of the Fifth Amendment was embraced by the Supreme Court of New Jersey in State v. Cooper, 54 N.J. 330 (1969). Defendants in Cooper had pleaded guilty to federal bank robbery charges and were subsequently indicted in state court for substantially the same charges. The court upheld the sentences imposed on the state charges, refuting the contentions of defendants that either the United States Constitution or the New Jersey Constitution (N.J. Const. (1947), Art. I, par. 11) barred the state prosecution. Thus there exists no proscription against the present prosecution on state constitutional grounds.
The case of State v. Ableman, supra, provides no support for defendant's argument. Defendant in Ableman had been convicted in federal court of conspiracy to distribute hashish and possession with intent to distribute hashish; subsequently he was indicted in state court on four counts: unlawful possession of hashish, unlawful possession with intent to distribute, unlawful distribution and conspiracy to distribute. Upon defendant's motion the trial judge dismissed all of the counts except one charging him with distribution. State v. Krell, 125 N.J. Super. 457 (Law Div.1973). The basis of the dismissal of the three counts was not constitutional protection against double jeopardy, but a specific provision of the New Jersey Controlled Dangerous Substances Act, which reads in pertinent part:
In any case where a violation of this act is a violation of a Federal law or the law of another state, the conviction or acquittal ...