Applicability of the Double Jeopardy Clause to Successive Prosecutions by the United States and the District of Columbia ( 1979 )


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  •                                                                              June 14, 1979
    79-42       MEMORANDUM OPINION FOR THE
    ASSOCIATE DEPUTY ATTORNEY GENERAL
    District of Columbia—Applicability of the Double
    Jeopardy Clause of the Fifth Amendment to the
    Constitution
    You have asked whether, were Congress to establish within the govern­
    ment of the District of Columbia an office equivalent to that of a city or
    State prosecutor, the Double Jeopardy Clause of the Fifth Amendment
    would bar successive prosecutions by the United States and the District
    (under the United States and District Codes) of a single person for the
    same acts. It is our conclusion that, because there is an identity of
    sovereignty between the United States and the District of Columbia for
    Double Jeopardy Clause purposes, the bar of the Fifth Amendment would
    prevent such successive prosecutions.1
    The Supreme Court has recently stated:
    [It is a] well established principle that a federal prosecution does
    not bar a subsequent state prosecution of the same person for the
    same acts, and a state prosecution does not bar a federal one.
    The basis for this doctrine is that prosecutions under the laws of
    separate sovereigns do not, in the language of the Fifth Amend­
    m ent,” subject [the defendant] for the same offence to be twice
    put in jeopardy.” [United States v. Wheeler, 
    435 U.S. 313
    ,
    316-317 (1978) (footnote omitted).]
    It is equally well established that “ [t]he ‘dual Sovereignty’ concept does
    not apply, however, in every instance where successive cases are brought
    by nominally different prosecuting entities.” 
    Id. at 318
    . Thus, in cases of
    successive prosecution in which the Supreme Court has found an identity
    of sovereignty, as between a Federal territory and the United States,
    1 W e take it as given that, if applicable, the bar o f the Double Jeopardy Clause prevents
    such dual prosecutions. T he nature and scope o f the bar, when applicable, is not the subject
    o f this m em orandum .
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    Puerto Rico v. Shell Co., 
    302 U.S. 253
     (1937); Grafton v. United States,
    
    206 U.S. 333
     (1907), or a-city and a State, Waller v. Florida, 
    397 U.S. 387
    (1970),2 it has applied the bar of the Double Jeopardy Clause.
    The Court has spoken unequivocally in identifying the single factor,
    which, for Fifth Amendment Double Jeopardy Clause purposes, deter­
    mines whether there is unity or duality of sovereignty between nominally
    distinct prosecuting governments. It is neither the degree of control which
    the one has over the other, United States v. Wheeler, 
    supra, at 319-320, 327-328
    , nor is it the authority of the one to legislate and to enforce its
    legislation independently of the other. Waller v. Florida, 
    supra.
     R ather,'
    the question to be asked is whether the ultimate source of the power of
    each to prescribe laws and punish infractions of those laws is the same or
    different. Id.; United States v. Wheeler; Grafton v. United States. If it is
    the same, there is identity of sovereignty for Double Jeopardy Clause
    purposes.
    When the question is whether there is identity of sovereignty between
    the United States and another prosecuting government, the answer is,
    ultimately, constitutionally based. If the government in question is not
    nominally the United States but derives its power to legislate and to prose­
    cute from a delegation by the United States of a constitutional power,
    there is unity of sovereignty between the two. C f, United States v.
    Wheeler, at 322 (“ [T]he controlling question * * * is the source of this
    power * * * [i]s it a part of inherent * * * sovereignty, or an aspect of
    the sovereignty of the Federal Government which has been
    delegated * * * by Congress?” ). Such is clearly the case with respect to a
    territory of the United States. Grafton v. United States. This is also the
    case as between the District of Columbia and the United States.
    Article I, Section 8, Clause 17, of the Constitution vests in Congress the
    power “ [t]o exercise exclusive Legislation in all Cases whatsoever, over
    such District (not exceeding ten Miles square) as may, by Cession of par­
    ticular States, and the Acceptance of Congress, become the Seat of the
    Government of the United States * *           This power of Congress may
    permissibly be delegated, District o f Columbia v. John R. Thompson Co.,
    
    346 U.S. 100
     (1953), and much of it has been. See District of Columbia
    Self-Government and Governmental Reorganization Act, Public Law No.
    93-198, 
    87 Stat. 774
    .’ However, its source, whatever governmental entity
    1 The Double Jeopardy Clause o f the Fifth Am endment has been held applicable to the
    States. Benton v. Maryland, 395 U .S. 784 (1969).
    1 Although Congress has provided for hom e rule for the District o f Colum bia, it delegated
    the power o f government “ [s]ubject to the retention by Congress o f the ultimate legislative
    authority over the N ation’s Capital granted by article I, section 8, o f the C onstitution.”
    District o f Columbia Self-Government and Governm ental Reorganization Act § 102(a).
    Moreover, it reserved, the Act notwithstanding, “ the right, at any time, to exercise its con­
    stitutional authority as legislature for the District * *   Id., § 601. Thus, it is clear that,
    even if it could, without a constitutional amendm ent or a grant o f statehood or in­
    dependence, the U nited States has not chosen to divest itself o f its sovereignty over the
    District o f Columbia. It has only delegated power which is its own, to be exercised by the
    District government that it created.
    251
    exercises it, remains the same—the Constitution of the United States.
    With respect to identity of the ultimate source of the power to proscribe
    conduct and to prosecute violations, the relationship between the District
    of Columbia and the United States cannot be distinguished, for double
    jeopardy purposes, from either the relationship between a Federal ter­
    ritory and the United States or a city and a State. In each case the Double
    Jeopardy Clause is applicable because the nominally distinct governmental
    entities have as their source of power the same organic law. As between the
    United States and the District of Columbia that source is Article I, section
    '8, clause 17 of the Constitution.
    The Supreme Court has not had occasion to rule on a double jeopardy
    question arising out of a dual prosecution under United States and District
    law. The District of Columbia Circuit Court of Appeals, however, has
    considered the relationship for double jeopardy purposes between the
    District and the United States and has opined that “ [s]ince successive pros­
    ecutions on identical or lesser included D.C. and federal offenses emanate
    from the same sovereignty, they are precluded by double jeopardy con­
    siderations.” United States v. Jones, 527 F. (2d) 817, 821 (D.C. Cir.
    1975). See also, United States v. Knight, 509 U.S. F. (2d) 354, 360 (D.C.
    Cir. 1974). We believe that this statement o f the law was correct when
    issued, still applies, and will continue to apply when the District adopts a
    criminal code without congressional enactment, and would apply were
    Congress to establish a prosecutor’s office within the District government.
    Mary C. Law    ton
    Deputy Assistant Attorney General
    Office o f Legal Counsel
    252