People v. Mezy

551 N.W.2d 389 (1996)

453 Mich. 269

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Basil MEZY, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Issam HERMIZ, Defendant-Appellant.

Docket Nos. 101689, 102274, Calendar No. 13.

Supreme Court of Michigan.

Argued January 10, 1996.

Decided July 31, 1996.

*390 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, Pontiac, for the people.

Laurence R. Imerman, Bingham Farms, for defendant Mezy.

Domnick J. Sorise, Clinton Township, for defendant Hermiz.

Michael D. Thomas, President, Prosecuting Attorneys Association of Michigan, John D. O'Hair, Wayne County Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Saginaw, Amicus Curiae, for Prosecuting Attorneys Association of Michigan.

OPINION

WEAVER, Justice.

The question presented in these consolidated criminal appeals is whether Michigan was barred from indicting these defendants for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine when they had previously been convicted in federal court of conspiracy to possess with intent to distribute more than five kilograms of cocaine and interstate travel to facilitate a cocaine conspiracy. We would hold that the Michigan Constitution, as the United States Constitution, does not prohibit successive state and federal prosecutions. In so holding, we would overrule People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). We would remand to allow the trial court to consider whether these successive prosecutions were prohibited by M.C.L. § 333.7409; M.S.A. § 14.15(7409).

I Hermiz

In October, 1989, Issam Hermiz was indicted in federal court in the middle district of Florida for conspiring to possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a)(1). Hermiz was convicted as charged and sentenced to a prison term of 211 months. In July, 1990, Hermiz was indicted in Oakland County, Michigan, for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). After a jury trial, Hermiz was convicted as charged and sentenced to life imprisonment without parole. Hermiz appealed, arguing that the Oakland County indictment violated the double jeopardy *391 prohibition. The Court of Appeals affirmed Hermiz's conviction.[1] This Court granted leave to appeal[2]. We affirm in part and remand with instructions.

Mezy

In August, 1988, Basil Mezy was indicted in federal court of the eastern district of Michigan for conspiracy to possess with intent to distribute more than four kilograms of cocaine, 21 U.S.C. § 841(a)(1) and 846.[3] Mezy pleaded guilty of laundering money instruments, 18 U.S.C. § 1956(a)(2)(B)(ii)[4] in exchange for a dismissal of the conspiracy charge. He was sentenced to thirty-three months in federal prison.

In June, 1989, Mezy was indicted in federal court for the middle district of Florida for conspiracy to possess with intent to distribute more than five kilograms of cocaine, 21 U.S.C. § 841(a)(1) and 846, and interstate travel to facilitate a cocaine conspiracy, 18 U.S.C. § 1952(a)(3). Mezy was convicted of one count of the former and two counts of the latter. Mezy was sentenced to concurrent prison terms of twenty-two and five years. These terms are to run consecutively to the money-laundering sentence.

In July, 1990, Mezy was charged in Oakland Circuit Court with conspiracy to possess with intent to deliver more than 650 grams of cocaine, M.C.L.§ 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i).[5] Mezy was subsequently convicted as charged and received the mandatory sentence of life imprisonment without parole. Mezy appealed, arguing that the Oakland County indictment violated the double jeopardy prohibition. The Court of Appeals, relying on the conviction in the federal court for the eastern district of Michigan, reversed Mezy's conviction.[6] This Court granted leave to appeal.[7] We would reverse and remand with instructions.

II

In Mezy's case the first issue is whether, for purposes of a double jeopardy analysis, we should consider the charge on which Mezy was indicted in the Eastern District of Michigan, conspiracy to possess with intent to deliver more than four kilograms of cocaine, or the charge to which he pleaded guilty, laundering money instruments. We follow the federal rule and hold that a prosecution on charges dismissed pursuant to a plea agreement does not violate the Double Jeopardy Clause where the newly charged offense is a different offense for double jeopardy purposes than the crime to which the defendant has pleaded guilty. See United States v. Garner, 32 F.3d 1305, 1311, n. 6 *392 (C.A.8, 1994) United States v. Rivera-Feliciano, 930 F.2d 951, 953-954 (C.A.1, 1991);[8] see also Ricketts v. Adamson, 483 U.S. 1, 8, 107 S. Ct. 2680, 2684-2685, 97 L. Ed. 2d 1 (1987) (the Court noted that a plea of guilty for a lesser included offense generally would have precluded a charge of the greater offense on double jeopardy grounds except for the fact that the defendant violated his plea agreement). Jeopardy does not attach to charges dismissed as part of a plea agreement. Garner, supra at 1311, n. 6. United States v. Vaughan, 715 F.2d 1373, 1376-1377 (C.A.9, 1983). Thus, we may consider only the charge to which Mezy pleaded guilty, laundering money instruments, not the charge on which he was indicted. This prior conviction of laundering money instruments raises no double jeopardy issues under either the statute or the constitution with respect to Mezy's state court indictment for conspiracy to possess with intent to deliver more than 650 grams of cocaine. See United States v. Felix, 503 U.S. 378, 388-390, 112 S. Ct. 1377, 1384, 118 L. Ed. 2d 25 (1992) (a substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes).[9]

III

Both defendants assert that their Oakland Circuit Court indictments were barred under the Michigan Constitution's Double Jeopardy Clause, relying on People v. Cooper, supra. The information regarding the federal convictions is very sparse. In considering whether there are one or two conspiracies for purposes of the Double Jeopardy Clause, the following factors are considered: time, persons acting as coconspirators, statutory offenses charged in indictments, overt acts charged by government, and places where events alleged as part of conspiracy took place. United States v. Thomas, 759 F.2d 659 (C.A.8, 1985). The defendants clearly met the initial burden of establishing a prima facie nonfrivolous claim of double jeopardy. This was done primarily by showing the similarity of the charges, and the substantial overlap in time of the two conspiracies charged. Thus, the burden shifted to the government to demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution. United States v. Schinnell, 80 F.3d 1064, 1066 (C.A.5, 1996)[10]. The people failed to meet this obligation, because not enough information was provided to show by a preponderance *393 of the evidence that the offenses were distinct. The people have not demonstrated that the trial court committed any clear error in its findings of fact, or that it erred in its application of the constitutional test under Thomas in concluding that the people failed to carry their burden.[11] Thus, for purposes of the constitutional double jeopardy claim, we must assume that the federal and state conspiracies are the same. This leads us to address, as requested by the plaintiffs, the continuing validity of Cooper.

The United States Constitution provides: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const.Amend. 5. The United States Supreme Court has consistently held that successive state and federal prosecutions are not a violation of the Fifth Amendment. Bartkus v. People of Illinois, 359 U.S. 121, 132, 79 S. Ct. 676, 682-683, 3 L. Ed. 2d 684 (1959). The reasoning behind this holding was clearly set out in Heath v. Alabama, 474 U.S. 82, 89, 106 S. Ct. 433, 437-438, 88 L. Ed. 2d 387 (1985).

The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offenses." As the Court explained in Moore v. Illinois, [55 U.S.] (14 How.) 13, 19 [14 L. Ed. 306] (1852), "[a]n offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns, "[i]t cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offenses, for each of which he is justly punishable." [Citations omitted.]

The language of the Michigan Constitution's double jeopardy provision is substantially similar to that of the United States Constitution. The Michigan Constitution was amended in 1963 to provide: "No person shall be subject for the same offense to be twice put in jeopardy." Const. 1963, art. 1; § 15. Before 1962, the wording of Michigan's Double Jeopardy Clause was, "No person, after acquittal upon the merits, shall be tried for the same offense." Const. 1908, art. 2; § 14.

When construing a constitution, the Court's task is to "divine the `common understanding' of the provision, that meaning `which reasonable minds, the great mass of the people themselves, would give it.'" People v. Nash, 418 Mich. 196, 209, 341 N.W.2d 439 (1983). Relevant considerations include the constitutional convention debates, the address to the people, the circumstances leading to the adoption of the provision, and the purpose sought to be accomplished. Id. at 209, 341 N.W.2d 439.

At the 1961 Constitutional Convention a delegate stated that the Supreme Court of Michigan virtually had held the prior provision to mean "the same thing as the provision in the federal constitution, which is what we have put in...." Another delegate expressly agreed that the change in the language would make no change "in the rule we have hitherto had." 1 Official Record, Constitutional Convention, 1961, p 539. In light of this clear expression of intent by the convention delegates that there be no change in the then-existing case law, we find it significant that in 1958 this Court had held, "When a defendant has violated both State and Federal laws he is liable to each sovereign and subject to prosecution by each." In re Illova, 351 Mich. 204, 209, 88 N.W.2d 589 (1958).[12]

*394 In 1976 this Court held that this constitutional provision "prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different." People v. Cooper, supra at 461, 247 N.W.2d 866. Finding the case to have been wrongly decided, we would overrule People v. Cooper.

Cooper stated that it questioned the continued validity of United States Supreme Court decisions[13], and therefore the Court "preferred to rest the decision on our state constitution."[14] In so doing this Court failed to follow the general rule that "[u]nless there is a compelling reason to afford greater protection under the Michigan Constitution, the Michigan and federal provisions will be treated as affording the same protections." People v. Perlos, 436 Mich. 305, 313, n. 7, 462 N.W.2d 310 (1990).

We would now join the overwhelming majority of state courts that recognize the validity of dual federal and state convictions.[15] In accordance with this recognition that state and federal governments may punish the same offenses, we would hold that neither defendant's subsequent state prosecution violated the double jeopardy provisions of the Michigan or United States Constitutions.

IV

Defendants also assert that their Oakland Circuit Court indictments were barred by M.C.L. § 333.7409; M.S.A. § 14.15(7409), arguing that the indictments in state court arose out of the same acts on which their convictions in the Florida federal court were based. M.C.L. § 333.7409; M.S.A. § 14.15(7409), enacted in 1978, applies only to controlled substance crimes. Section 7409 reads:

If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

As of the Fall of 1995, twenty-six states had enacted some form of statute barring subsequent prosecutions. Bollinger, Defending dual prosecutions: Learning how to draw the line, 10 Crim Just 16, 18 (Fall, 1995).

A

In enacting M.C.L. § 333.7409; M.S.A. § 14.15(7409) the Legislature was not codifying *395 the rule set forth in People v. Cooper, supra, as can be seen by the significant differences between the statute and case law. Cooper applies to all criminal offenses, while § 7409 concerns only controlled substances. Cooper allows for dual prosecution when the state's interest is not protected by the federal prosecution, while § 7409, by contrast, is a complete bar to dual prosecution.

B

We would hold that the defendants bear the burden both of production and persuasion to prevail on their argument that the statute applies to bar a second prosecution. As a general rule, this Court has the power to allocate the burden of proof. People v. D'Angelo, 401 Mich. 167, 182, 257 N.W.2d 655 (1977). Because the statute does not state who shall bear the burden of proof, we are free to assign it as we see fit, as long as we do not transgress the constitutional requirement that we not place on the defendant the burden of persuasion to negate an element of the crime. Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); People v. Pegenau, 447 Mich. 278, 317, 523 N.W.2d 325 (1994), opinion of Boyle, J. This statutory exclusion does not call into question defendant's guilt or innocence. The defendant is alleging that he should be insulated from prosecution regardless of whether he is guilty. M.C.L. § 333.7531; M.S.A. § 14.15 (7531) provides:

It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it.

As in People v. Pegenau, supra, defendant is attempting to establish an exemption or exception to a controlled substances offense. In this situation, the presence of a conviction or acquittal under federal law or the law of another state for the same act is analogous to an affirmative defense. Id. at 289, 523 N.W.2d 325. Thus, it is appropriate to place the burden of proof by a preponderance of the evidence on the defendant. See D'Angelo, supra at 182, 257 N.W.2d 655[16].

C

We are asked to determine whether the statute prohibits the state's prosecution of defendants. The key phrase in § 7409 is "the same act." In this, the statute differs from the United States and Michigan Constitutions, both of which discuss the same offense.

New Jersey has an almost identical statute,[17] which was applied in State v. Ableman, 72 N.J. 145, 368 A.2d 356 (1977). In that case the defendant had been convicted in federal court of conspiracy to distribute and to possess with intent to distribute hashish, and of possession with intent to distribute hashish. The issue presented to the court was whether the statute barred subsequent state prosecution of a charge of unlawful distribution of hashish. As explained in the concurring opinion, the court ruled that "where a defendant involved in a large-scale operation of illegal drug traffic pleads guilty of possession with intent to distribute a great quantity of narcotics in a federal court located in a foreign state, [the statute] does not stand as a bar to a State prosecution for distribution of a portion of those narcotics." Id. at 151, 368 A.2d 356, Pashman, J., concurring in the result.

The gist of the crime of conspiracy is the agreement of the conspirators to commit one or more unlawful acts, where one or more of the conspirators do "any act to effect the object of the conspiracy." Braverman v. United States, 317 U.S. 49, 53, 63 S. Ct. 99, 101, 87 L. Ed. 23 (1942). In order to determine what the extent of the agreement is, so that we may determine whether there are two conspiracies or only one, we will use the *396 same "totality of the circumstances" test used in constitutional double jeopardy analysis. This test includes the following factors: 1) time, 2) persons acting as coconspirators, 3) the statutory offenses charged in the indictments, 4) the overt acts charged by the government or any other description of the offenses charged that indicate the nature and scope of the activity that the government sought to punish in each case, and 5) places where the events alleged as part of the conspiracy took place. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement each with a separate object. United States v. Thomas, 759 F.2d 659 (C.A.8,1985).

Because this is the first time this Court has addressed the burden of proof for M.C.L. § 333.7409; M.S.A. § 14.15(7409), and the lower courts did not fully address the applicability of the statute, we remand to allow the trial court to hold any further proceedings necessary and make a determination of whether there were multiple conspiracies.

V

Defendant Hermiz argues that in his rebuttal at closing arguments the prosecution improperly vouched for the credibility of its witnesses. Defendant objected to this argument at trial. The trial judge merely noted defendant's objection and did not give corrective instructions. Although we agree that the prosecutor's conduct was improper, we would affirm Hermiz's conviction because we find the misconduct to be harmless. Review of the record convinces us that the error had only slight or negligible influence on the verdict. Therefore, the error was harmless. People v. Mateo, 453 Mich. 203, 217, 551 N.W.2d 891 (1996), slip op at 14.

Conclusion

We would affirm in part the opinion of the Court of Appeals affirming defendant Hermiz's conviction, reverse the Court of Appeals opinion vacating defendant Mezy's conviction, and remand for further proceedings. We do not retain jurisdiction.

BOYLE and RILEY, JJ., concurred with WEAVER, J.

BRICKLEY, Chief Justice (concurring in part and dissenting in part).

I agree with the decision of the lead opinion to remand the case so that the trial courts may determine whether there were multiple conspiracies for purposes of the statute under the newly articulated burden of proof. Accordingly, I concur with parts I, II, IV and V of the lead opinion. However, I am unable to support the decision to overrule this Court's opinion in People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). I therefore dissent from part III of the majority opinion.

I concur with the decision to remand even though several factors appear to suggest that the defendants were not prosecuted twice for the same act. The alleged conspiracies were separate in time, although there was an overlap of some two years. The persons involved in each conspiracy were different, although again there was some overlap. The charged offenses were the same, consisting of the conspiracy to possess cocaine with the intent to distribute it, although the amounts charged were different. The overt acts varied greatly between the indictments. The locales of the offenses also differed. Finally, the conspiracies differed in scope, with one aiming at large-scale national distribution and the other at local, street-level transactions. However, because this Court has not previously addressed the burden of proof, it is appropriate to remand to allow the trial court to apply the correct burden.

In Cooper, this Court held that the Michigan Constitution forbids a second prosecution for the same offense by the state unless the interests of the state and the initial prosecutor are "substantially different." Id. at 462, 247 N.W.2d 866. Whether or not the members of this Court feel that the case was wrongly decided, principles of stare decisis require its continued vitality until and unless review is required for the resolution of the case before us. The instant cases may be decided on statutory grounds, making it unnecessary to reach the constitutional question of double jeopardy that invites review of Cooper. On remand, the trial court may *397 conclude that M.C.L. § 333.7409; M.S.A. § 14.15(7409) bars the second prosecutions of the defendants. If so, there will be no need to perform double jeopardy analysis.

It is also unnecessary to reach Cooper because double jeopardy is not implicated by the facts before us. The lead opinion does conclude that, for double jeopardy purposes, the defendants established a prima facie claim that the prosecutions were for the same offense and that the government then failed to demonstrate that prosecution was not barred. I would conclude that the defendants did not make a prima facie showing and that a preponderance of the evidence demonstrated that the offenses were distinct.

I dissent from the lead opinion's reliance on the overlap in time and the similarity of the charges to conclude that the defendants made an unrefuted prima facie showing that they were prosecuted twice for the same offense. Op. at 392. I cannot assign the same weight to these similarities as the lead opinion does. Unfortunately, far more persons are charged with identical drug offenses than could ever be linked together in one conspiracy. Similarly, many drug offenses occur at the same time without being connected. The overlap in the time and charges is more symptomatic of the drug problems in our society than of any connection between the offenses charged. The preponderance of the evidence before the Court demonstrates that the conspiracies were separate.

The evidence is sufficient to overcome the defendants' prima facie double jeopardy caseif, indeed, they made such a showing. Both lower courts should have held that the government met its burden of demonstrating that the conspiracies were separate. I would hold that there is no need for further double jeopardy analysis, so this Court need not address Cooper.

LEVIN, Justice (dissenting).

The question is whether the State of Michigan may prosecute the defendants for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine after they had been prosecuted and convicted in federal court of similar offenses. We join with the signers of the lead opinion and the concurring opinion in remanding to the trial court to evaluate the defendants' claims that the statutory double jeopardy provision, § 7409 of the Public Health Code,[18] barred the Michigan prosecutions.

This disposition may make it unnecessary for this Court to consider in the instant cases the proposal in part III of the lead opinion that this Court overrule People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). Because the lead opinion states in part III why it would overrule Cooper, we respond stating why we would not do so.

We also disagree with the lead opinion's conclusion, in part II, that defendant Mezy's federal indictment and plea have no bearing on the statutory or constitutional double jeopardy analysis.

I

Section 7409 provides:

If a violation of this article is a violation of federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

As the lead opinion observes, § 7409 did not codify this Court's ruling in Cooper. Its reach is both more limitedit only applies to violations of the Public Health Codeand less limitedit does not state the exceptions enumerated in Cooper that might allow a subsequent prosecution in some cases.

The Legislature expressed its concern with successive prosecutions by enacting § 7409 of the Public Health Code. Other states have enacted similar provisions under the Uniform Controlled Substances Act.[19] Similarly, *398 the Attorney General of the United States promulgated what has come to be known as the Petite policy, a general prohibition of federal prosecutions following a state prosecution absent approval from an assistant attorney general of the United States.[20]

The rationale for the Petite policy respecting successive federal and state prosecutions is informative regarding the legislative intent in enacting § 7409. The United States Supreme Court said that "[t]he overwhelming purpose of the Petite policy is to protect the individual from any unfairness associated with needless multiple prosecutions."[21]

Additionally, § 7409 can be seen as a measure to conserve resources. If the federal government has already made expenditures to investigate, prosecute, and incarcerate a defendant, a second prosecution, with duplicate costs of investigation, prosecution, and incarceration can be seen by a legislature as wasteful.

Alabama has provided another reason for its version of this statute.

One of the purposes of enacting the Alabama Controlled Substances Act was "to standardize all laws in this State to be in conformity with the new Federal Comprehensive Drug Abuse Prevention and Control Act of 1970." Clearly the purpose and intent of Section 20-2-77 is to bar a state prosecution when the defendant has been previously convicted in federal court (or the court of another state) for the same act.[22]

These legislative goals protect citizens from continual harassment, coordinate federal and state drug prosecutions, and protect the taxpayers from unnecessary costs.

The lead opinion quotes from the concurring opinion in State v. Ableman, 72 N.J. 145, 368 A.2d 356 (1977).[23] The majority in Ableman affirmed the reasoning of the lower court, which had cited with approval State v. Krell, 125 N.J.Super. 457, 461-462, 311 A.2d 399 (1973). In Krell, the judge said:

The four sections preceding section 25 [the comparable New Jersey statutory provision], under captions reading "Prohibited Acts," expressly set forth what acts are unlawful.... Since, therefore, the act expressly sets forth the acts which are unlawful, it follows that what is meant by the "same act" specified in section 25 is any act expressly prohibited by the preceding sections 19 through 22.

Because the defendants in Krell had not been charged in federal court with distribution of narcotics, one of the four acts listed in the New Jersey statute, the superior court held that they could face state prosecution on that charge. A conspiracy charge was barred, however, because of an earlier federal prosecution for conspiracy, and the state charges of possession and possession with intent to distribute were barred by the federal prosecution for possession with intent to distribute.

The New Jersey court thus took a common-sense approach to the definition of "same act." Similarly, Michigan's statute should be read to prohibit prosecutions for conspiracy in Michigan when the federal prosecution is for the same conspiracy, even if the federal conspiracy is broader and partly, *399 though not exclusively, includes the conduct in Michigan.

A

The lead opinion begins its statutory analysis stating, "The key phrase in § 7409 is `the same act.' In this, the statute differs from the United States and Michigan Constitutions, both of which discuss the same offense."[24] Although noting this "key" difference, the lead opinion provides no explanation of its significance. Insight can be gained from Justice Coleman's concurrence in Cooper. She disagreed with part of the rationale of the majority, stating:

I would narrow the rule accepted from Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971), which "prohibits a second prosecution for an offense arising out of the same criminalact" to one which "prohibits a second prosecution for the same offense." [Cooper at 463, 247 N.W.2d 866 (emphasis added).]

Tennessee applied a similar analysis when construing its statutory double jeopardy bar.

It is apparent that the Tennessee Drug Control Act of 1971 was enacted to compliment the then existing federal laws regarding drug control and that [Tenn. Code Ann.] XX-XX-XXX was included to effectuate that purpose. The provision that bars prosecution for the "same act" necessarily contemplates that the different jurisdictions may prohibit an act by means of defining offenses differently while still protecting the same interests, i.e., criminalizing drug trafficking.... TCA 53-11-404 requires a factual analysis to determine whether or not a person is being prosecuted for an offense based upon an act when such act was an offense or was included in an offense in another jurisdiction and for which act that person has previously been convicted or acquitted. [State v. Mongiove, 1991 WL 9036, *6, 1991 Tenn. Crim. App. LEXIS 77, *18]. B

The signers of the lead opinion rely on federal cases for assistance in articulating a standard for determining whether there are one or more conspiracies.[25] The Court should also look to the United States Supreme Court's decision in Brown v. Ohio, 432 U.S. 161,168-169, 97 S. Ct. 2221, 2226-2227, 53 L. Ed. 2d 187 (1977), in which this Court held that greater and lesser included offenses must be considered the "same" for federal constitutional double jeopardy analysis, and that "[w]hatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense." Thus, if one conspiracy is encompassed by another for constitutional double jeopardy analysis, prosecution is barred by § 7409, which uses the broader term "act" to describe when prosecution of the charge also would be barred in the federal courts as the same "offense." As Brown makes clear, even if a trial of the smaller subset of allegations is held first, it bars a second prosecution for the larger scope of the offense.

C

I agree with the Court of Appeals in Mezy and the lead opinion that the "totality of the circumstances" test is useful in applying Michigan's bar against double jeopardy, both under the statute and the state constitution. The United States Court of Appeals for the Eighth Circuit emphasized in United States v. Thomas, 759 F.2d 659, 662 (C.A.8, 1985), immediately after listing the five factors cited in the lead opinion that this is a comprehensive inquiry:

*400 These factors are guidelines only. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object. We will therefore look beyond the indictments and consider all the evidence we have before us. This includes evidence adduced at the previous trial, evidence expected to be presented at the second trial, and information developed at the evidentiary hearing conducted on the doublejeopardy issue.

The Court of Appeals in Mezy said, "[w]hile review de novo applies to a trial court's holdings concerning whether there was a single criminal transaction and whether the state interests are substantially distinct,... the court's findings of fact are reviewed for clear error."[26]

Because this Court is today announcing a new standard for review of Mezy's and Hermiz' statutory claims, there are no findings of fact employing that standard to review. Remand for further factfinding is therefore necessary.

D

The lead opinion, in explaining the test to be employed and the degree of proof needed to satisfy it, places the burden on the defendants to prove that the statutory bar applies.[27] I agree that the burden should be placed on the defendants under M.C.L. § 333.7531; M.S.A. § 14.15(7531).

We are of the opinion that the Court of Appeals in Hermiz erred in not employing the Thomas test for multiple conspiracies. Instead, it narrowly focused on language in People v. Sturgis, 427 Mich. 392, 401, 397 N.W.2d 783 (1986), that, under the state constitutional analysis, part of Michigan's broader "same transaction" test includes whether all the charges "demonstrate `a single intent and goal.'"[28]

The Court of Appeals said that there was "no indication in the record that the `single intent and goal' of the conspirators in Florida was to conspire to possess with intent to deliver more than 650 grams of cocaine in Michigan."[29] This analysis ignores the holding in Brown that a prosecution for a lesser included offense bars a subsequent prosecution for a greater offense.

If Mezy and Hermiz were prosecuted in Florida for the conspiracy to buy cocaine for distribution in Oakland County and elsewhere in Michigan, a prosecution in Oakland County for conspiracy to distribute that cocaine in that county would be a prosecution for the same offense. This is true even if others in the Florida prosecution were not solely focused on selling the cocaine in Oakland County. The Court of Appeals approach would produce the same anomaly in a conspiracy context that the United States Court of Appeals for the Eighth Circuit noted in Thomas:

*401 If [this test] is the sole standard used to determine whether multiple conspiracies exist, then prosecutors could drawn up [sic] two indictments and by skillfully choosing different sets of overt acts make one conspiracy appear to be two. [Id. at 662.][30]

II

Ignoring the rule of construction that constitutional questions should not be reached if a statutory analysis obviates the inquiry, the lead opinion proposes to overrule Cooper. In the circumstance that the lead opinion concludes that a remand is necessary to evaluate the statutory claim, there is no reason to reach Cooper. Because the majority does so, I write to explain why we are of the opinion that the lead opinion errs in its analysis of Cooper and its proposal to overrule it.

The lead opinion proposes to overrule Cooper because it concludes that this Court failed to follow the "general rule" that, "[u]nless there is a compelling reason to afford greater protection under the Michigan Constitution, the Michigan and federal provisions will be treated as affording the same protections."[31] The "compelling reason" test was not announced until after Cooper was decided, and it has principally been employed in cases arising under the Fourth Amendment.

A review of the record and briefs in this Court when Cooper was decided demonstrates the error in the lead opinion's assertion. Marx Cooper's brief to this Court, as well as the briefs of amici curiae, all discussed the conflict between protecting an accused from being twice put in jeopardy and the dual sovereignty doctrine set forth in Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959).

The defendant's brief not only addressed how the reasoning underlying Bartkus had been undermined by subsequent federal case law, but it also discussed why the Michigan Constitution should be read as providing stronger double jeopardy protections. The defendant also discussed some of the scholarly criticisms of the dual sovereignty doctrine (whether based on subsequent federal case law, the practical reasons for disagreeing with Bartkus, or constitutional/jurisprudential objections to trying someone twice for essentially the same act) and provided this Court with a comprehensive list of scholarly articles reviewing the dual sovereignty doctrine.[32]

The defendant in that case said, "It would be hard to find a practice more universally condemned by the legal scholars than this double jeopardy practice of successive federal-state trials for the same act."[33] This Court was provided a full review of the case law and supplementary materials on this issue. This Court reviewed this material, made its decision, and chose to read the Michigan Constitution as prohibiting most successive state prosecutions. The lead opinion's bold but unsupported assertion that this Court failed to consider the issue before it and give proper deference to federal case law is clearly incorrect.

Cooper did not rely on an anticipated change in federal double jeopardy jurisprudence that has not occurred since Cooper was decided. While Cooper noted that the rationale in Bartkus had been undermined by subsequent cases, the Court explicitly stated that it was not resting its decision on what *402 the United States Supreme Court had done or might do.[34] The Court based its opinion on the Michigan Constitution because it was persuaded that it requires the heightened protection of double jeopardy values.

There is no evidence in Cooper that this Court did not understand the consequences of its decision or that it acted on a whim. The opinion was reasoned and careful. Although the opinion did not use the words "compelling reason," the Court found significant, compelling merit in the criticisms of the dual sovereignty doctrine and the failure of that doctrine to protect the rights of the accused. The Court balanced the state's interests in prosecuting those who had broken the law and the defendant's right to avoid multiple prosecutions, and said: "We feel that the interests of the state and the defendant are best accommodated by the approach of the Pennsylvania Supreme Court in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971)."[35] While Justice Coleman did not fully agree with the reasoning in Cooper, she concurred in the result, making that decision to read the Michigan Constitution as barring multiple federal-state prosecutions unanimous.

Further support for the view that this Court thoughtfully and fully considered its decision and concluded that it should depart from the Bartkus construction appears in this Court's subsequent decisions affirming the result and the rationale in Cooper. In People v. Gay, 407 Mich. 681, 693-694, 289 N.W.2d 651 (1980), this Court said that, in Cooper, "we found that emerging Federal trends in recent years and the dictates of our own Constitution required us to impose limits on what dual sovereignty would permit.... [T]his Court also recognized the fundamental need to safeguard defendants' constitutional rights. We therefore prohibited dual prosecution where the interests of the state are not `substantially different.'" (Emphasis added.) The Court stated the public policy reasons for its decisions, and said:

Cooper represents a strong and uncompromising statement by this Court that a defendant's right not to be twice tried in Federal and state court for the same criminal act will be jealously guarded except in extreme cases where Federal laws are framed to protect substantially different social interests.... Cooper makes clear that as a firm rule dual prosecution ordinarily will not be tolerated in Michigan.... Further, since this safeguard of defendant's right against double jeopardy is of a constitutional magnitude,it must receive this Court's close consideration. [Id]. at 694-695, 289 N.W.2d 651 (emphasis added).]

Once again, while not all the members of the Court in Gay agreed with the application of the balancing of interests test outlined in Cooper, the Court unanimously upheld the rationale of Cooper and unanimously agreed it was necessary to apply the decision retro-actively. This Court again unanimously reaffirmed the rationale of Cooper in People v. Formicola, 407 Mich. 293, 284 N.W.2d 334 (1979).

The lead opinion relies on In re Illova, 351 Mich. 204, 88 N.W.2d 589 (1958), for the proposition that this Court had accepted the dual sovereignty principle before Cooper was decided. This Court distinguished Illova in Cooper as a case concerning jurisdiction, not double jeopardy.[36] Contrary to the lead opinion's claim, there is every "reason to suppose that Illova was not an accurate expression of the state of the case law on double jeopardy at the time of the Constitutional Convention...."[37] (Emphasis added.)

The lead opinion also fails to accord proper deference to the principle of stare decisis. This Court once observed long ago:

*403 The rule of stare decisis establishes uniformity, certainty, and stability in the law, but it was never intended to perpetuate error or to prevent the consideration of rule of law to be applied to the everchanging business, economic, and political life of a community. Only in the rare case when it is clearly apparent that an error has been made, or changing conditions result in injustice by the application of an outmoded rule, should we deviate from following the established rule. [Parker v. Port Huron Hosp., 361 Mich. 1, 10, 105 N.W.2d 1 (1960).]

This is not the "rare case when it is clearly apparent that an error has been made," but rather one where the lead opinion simply disagrees with the decision in Cooper and ignores the basic principles underlying stare decisis. There is not a crisis of criminals terrorizing the people of this state after a federal prosecution for a drug or other offense. There has not been a factual change other than the failure of the United States Supreme Court to overrule Bartkus (in part because of the principles of stare decisis), a change that this Court explicitly in Cooper distanced itself from requiring.

As the United States Supreme Court recently stated in the context of the abortion debate:

[T]he Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. [Planned Parenthood v. Casey, 505 U.S. 833, 864, 112 S. Ct. 2791, 2813-2814, 120 L. Ed. 2d 674 (1992).]

The lead opinion does not state a "special reason" for overruling Cooper. It does not discuss the strong scholarly opposition to the dual sovereignty doctrine in Bartkus, or other states' decisions that explain the flaws in the dual sovereignty doctrine, or this Court's decisions that have consistently reaffirmed Cooper. The lead opinion simply states without support that this Court did not give proper deference to federal decisions, and then proposes to overrule Cooper. This is nothing more than a "belief that a prior case was wrongly decided."

The lead opinion's approach is troublesome. It undermines the authority of this Court. As Justice O'Connor observed:

The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible.... There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. [505 U.S. at 865-866,112 S. Ct. at 2814-2815.]

While Justice O'Connor's decision in Planned Parenthood has been criticized by some, her articulation of the principles underlying the doctrine of stare decisis and the obligation of an appellate court to overrule its prior decisions only after careful and thoughtful deliberation producing a strong conviction that the prior case was wrongly decided, only when there is a "compelling" reason to abandon the prior decision, is legally sound. To overrule precedent of this Court with so little evaluation of the costs and benefits of the established rule would be a lamentable departure from the rule of law.

The concerns addressed by this Court in Cooper and Gay, as well as those stated in judicial opinions in other states and scholarly writings, remain. The right against being put twice in jeopardy is a personal right that would be impinged by successive federal and state prosecutions. This right must give way *404 when the prosecutions serve significantly different ends. But unless the subsequent state prosecution is shown to meet the test set forth in Cooper, the individual's right to protection from further governmental prosecution should prevail. Nothing has occurred factually or jurisprudentially to change the fundamental impolicy of successive prosecutions. Until it can be shown otherwise, we should continue to follow Cooper.[38]

III

The lead opinion states, in the Mezy case, "Jeopardy does not attach to charges dismissed as part of a plea agreement."[39]

We would agree that if a defendant withdraws a guilty plea and the prosecutor seeks to reinstate the original charges, jeopardy has not attached to the original charges.[40] If, however, a plea is accepted and accompanying counts are dismissed with prejudice, other considerations come into play.

The lead opinion's reference to a federal "rule" overstates the law. Courts that have adopted this "rule" have stated it in passing, such as in the footnotes cited by the majority,[41] or, when in the main body of the opinion, in cases where the discussion is not critical to resolution of the issue before the Court.[42] The cases cited by the lead opinion are thus not on point, nor are the cases cited by the cases cited in the lead opinion.

Section 7409 literally speaks only of "a conviction or acquittal under federal law," and thus is subject to the construction that a dismissal with prejudice of a federal prosecution, not being either a "conviction or acquittal," is not a bar to prosecution in this state.

The literal, or as it is sometimes stated, the "plain meaning" of a statute is often held to be the correct construction of legislative intent. But in other cases, this Court has looked beyond the literal meaning to the *405 spirit of the statute for guidance to the correct construction. "Few words have a `content so intrinsic' that their meaning does not become doubtful in the context of a particular question." People v. McFarlin, 389 Mich. 557, 563, 208 N.W.2d 504 (1973), where this Court held that a statute providing that the disposition of a child, under the chapter of the probate court concerning juveniles, shall not in any "criminal or any other cause or proceeding whatever" be evidence against the child "for any purpose whatever," does not bar a judge from considering an adult offender's juvenile offense record as a factor in imposing sentence upon him. Since the lead opinion does not recognize and discuss the issue as one of statutory construction, there is no need to further respond in this regard. See also Lawrence v. Toys R Us, 453 Mich. 112, 551 N.W.2d 155 (1996), where this Court today similarly departs from a literal or "plain meaning" in construing the worker's compensation act.

And while it is certainly doubtful whether a dismissal of a federal charge as part of a plea bargain can be seen as having occurred after the accused was in jeopardy, there are other constitutional principles, particularly the Due Process Clause, that might bar a state prosecution, following dismissal of a federal charge as part of a plea bargain, for essentially the same reasons that this Court concluded in Cooper that multiple prosecutions by both the state and the federal government is unnecessarily onerous and to be avoided except in compelling circumstances not present in the instant cases.

MARK J. CAVANAGH and MALLETT, JJ., concurred with LEVIN, J.

NOTES

[1] 207 Mich.App. 449, 526 N.W.2d 1 (1994).

[2] 450 Mich. 870, 539 N.W.2d 502 (1995).

[3] 21 U.S.C. § 841(a)(i) provides:

(a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....

[4] 18 U.S.C. § 1956(a)(2)(B)(ii) provided:

Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States

* * * * * *

(B) knowing that the monetary instrument or funds involved in the transportation represent the proceeds of some form of unlawful activity and knowing that such transportation is designed in whole or in part

* * * * * *

(ii) to avoid a transaction reporting requirement under State or Federal law, shall be sentenced to a fine of $500,000 or twice the value of the monetary instrument or funds involved in the transportation, whichever is greater, or imprisonment for not more than twenty years, or both.

[5] M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i) provides:

A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug described in section 7214(a)(iv) and:

(i) Which is in an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life.

[6] 208 Mich.App. 545, 528 N.W.2d 783 (1995).

[7] 450 Mich. 870, 539 N.W.2d 503 (1995).

[8] Of course, a defendant could bring a claim that this newly charged offense violated the terms of his plea agreement. Rivera-Feliciano, supra at 952, n. 1. However, such an argument would be of no avail for Mezy in this case because he entered his plea agreement with the United States and cannot then ask that this agreement prevent the State of Michigan, not a party to the agreement, from prosecuting him.

[9] The dissent suggests that the Federal District Court for the Eastern District of Michigan may have dismissed the drug conspiracy charges "with prejudice" when it accepted Mezy's plea of guilty on money laundering. See Op. at p. 400. There is no support in the record for this assertion. Even if this were true, this would not assist Mezy because a dismissal with prejudice is not an "acquittal" under § 7409, and under Garner, supra, double jeopardy does not attach to charges dismissed with prejudice. Dismissal "with prejudice" is only an acquittal for double jeopardy purposes "`when the ruling of the judge, whatever its label, actually represents a resolution in the defendant's favor, correct or not, of some or all of the factual elements of the offense charged.'" United States v. Lindsey, 47 F.3d 440, 444 (C.A.D.C., 1995), quoting United States v. Scott, 437 U.S. 82, 97, 98 S. Ct. 2187, 2197, 57 L. Ed. 2d 65 (1978).

[10] Defendant Schinnell illegally withdrew funds from her employer's bank accounts for personal use. The government instituted and competed administrative forfeiture proceedings pursuant to 18 U.S.C. § 981(a)(1)(C), which Schinnell did not contest. Subsequently Schinnell entered a conditional plea of guilty to wire fraud, reserving her right to appeal on double jeopardy grounds on the basis of her prior administrative forfeiture. The district court denied her motion to dismiss the indictment because it found that she did not show how the forfeiture action had in some manner placed her twice in jeopardy for a criminal offense. Schinnell appealed, arguing that the district court erred in allocating the burden of proof to the defendant on the double jeopardy issue. The United States Court of Appeals for the Fifth Circuit found that the correct standard was to make "the defendant bear[] the initial burden of establishing a prime facie nonfrivolous claim of double jeopardy, after which the burden shifts to the government to demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution," citing United States v. Deshaw, 974 F.2d 667, 670 (C.A.5, 1992).

[11] The concurrence/dissent concludes that "the government provided information sufficient to show, by a preponderance of the evidence, that the offenses were distinct," but does not refer to the trial court's opinion on this question and fails to provide any analysis for its conclusion. See Brickley, C.J., Op. at 397.

[12] As this Court noted in Cooper, Illova was subsequently overruled by In re Carey's Petition, 372 Mich. 378, 381, 126 N.W.2d 727 (1964), to the extent that it disagreed with Carey's holding that "where a defendant has been sentenced in Federal court, and is subsequently sentenced in a State court or courts, sentence may not be imposed to commence at the completion or expiration of Federal sentence, in the absence of statutory authority." However, there is no reason to suppose that Illova was not an accurate expression of the state of the case law on double jeopardy at the time of the Constitutional Convention, which is the relevant issue for our purposes.

[13] We note that in 1976 this was a very plausible position. "Scholarly analysis of the dual sovereignty exception was almost uniformly critical, and the decisions described above [Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960), and Murphy v. Waterfront Comm. of New York Harbor, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964)] suggest that the Court was moving in the same direction as the commentators. Indeed, the general thrust of the decisions of the 1960's led at least one commentator to suggest that the Supreme Court might well abandon the dual sovereignty exception." Murchison, The dual sovereignty exception to double jeopardy, 14 NYU R Law & Social Change 383, 419 (1986).

[14] Although the United States Supreme Court's treatment of the rational underpinnings of Bartkus leads us to question seriously its current vitality, it has not been expressly overruled. Therefore, we have preferred to rest the decision on our state constitution. In doing so, we have, appropriately, "assign[ed] proper weight to opposing interests and give[n] some consideration to public policy." [Cooper, supra at 461, 247 N.W.2d 866.]

[15] The majority of states hold that both the United States and their own constitutions allow for dual prosecutions by the state and federal governments. Nance v. State, 123 Ga.App. 410, 181 S.E.2d 295 (1971), Hall v. Commonwealth, 197 Ky. 179, 246 S.W. 441 (1923), State v. Castonguay, 240 A.2d 747 (Me., 1968), Bankston v. State, 236 So. 2d 757 (Miss., 1970), State v. Turley, 518 S.W.2d 207 (Mo.App., 1974), State v. Pope, 190 Neb. 689, 211 N.W.2d 923 (1973), State v. Cooper, 54 N.J. 330, 255 A.2d 232 (1969), and Breedlove v. State, 470 S.W.2d 880 (Tex. Crim.App., 1971). Others rely on the federal constitution or merely cite Bartkus for the principle of dual sovereignty. State v. Duncan, 221 Ark. 681, 255 S.W.2d 430 (1953), State v. Tiche, 33 Conn.Supp. 51, 360 A.2d 135 (1976), Richardson v. State, 163 Ind.App. 222, 323 N.E.2d 291 (1975), Bell v. State, 22 Md.App. 496, 323 A.2d 677 (1974), Crane v. State, 92 Nev. 593, 555 P.2d 845 (1976), State v. Fletcher, 26 Ohio St.2d 221, 271 N.E.2d 567 (1971), Beard v. State, 485 S.W.2d 882 (Tenn.Crim.App., 1972), and State ex rel Cullen v. Ceci, 45 Wis.2d 432, 173 N.W.2d 175 (1970). But see, contra, State v. Hogg, 118 N.H. 262, 385 A.2d 844 (1978), and Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971).

[16] In People v. D'Angelo, this Court allocated the burden of proof for showing the defense of entrapment to the defendant.

[17] N.J.S.A. 24:21-25 provides in part:

In any case where a violation of this act (Uniform Drug Act) is violation of a Federal law or the law of any state, the conviction or acquittal under Federal law or the law of another state for the same act is a bar to prosecution in this State.

[18] M.C.L. § 333.7409; M.S.A. § 14.15(7409).

[19] New Jersey, Ohio, Alabama, Arkansas, North Carolina, and Tennessee are among the states that have enacted a version of this statute. N.J. Stat. Ann. 24:21-1; Ohio Rev. Code Ann. 2925.50; Ala. Code 20-2-77; Ark. Stat. Ann. 5-64-405; N.C. Gen. Stat. 90-97; Tenn. Code Ann. 53-11-404 (repealed in 1990).

The Model Penal Code suggests codifying double jeopardy principles for all criminal offenses. Model Penal Code and Commentaries, § 1.10, pp 167-178. A number of states have adopted some form of this prohibition. E.g., Alas. Stat. 12.20.010; 18 Pa. Cons. Stat. Ann. § 111; New York, Crim. Pro. Law, § 40.20.

[20] Shortly after the United States Supreme Court's decision in Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959), affirming the right of the federal government to initiate prosecution after a state trial, the Attorney General instructed all United States Attorneys to make an effort to coordinate with local law enforcement and prosecute a defendant in the most appropriate forum. The United States Supreme Court noted this policy Petite v. United States, 361 U.S. 529, 80 S. Ct. 450, 4 L. Ed. 2d 490 (1960). See 3 LaFave & Israel, Criminal Procedure, § 24.5, p 100.

The federal courts have ruled that the Petite policy is an internal guideline of the Department of Justice that provides no substantive rights for defendants to challenge a violation of the policy. See, e.g., United States v. Pungitore, 910 F.2d 1084, 1120 (C.A.3, 1990). In Michigan, however, the policy respecting drug offenses is statutory, providing defendants with an opportunity to challenge a prosecution that violates § 7409.

[21] Rinaldi v. United States, 434 U.S. 22, 31, 98 S. Ct. 81, 86, 54 L. Ed. 2d 207 (1977).

[22] Barnett v. State, 373 So. 2d 1226, 1228 (Ala. Crim.App., 1979).

[23] Op. at 395.

[24] Op. at 395 (emphasis in original).

[25] While the totality of the circumstances test outlined in the lead opinion is useful, it should not finish the inquiry whether these defendants were prosecuted for the "same act." Other states have held that federal conspiracy charges bar prosecution for an in-state conspiracy when the two involve the same set of criminal acts, even if the federal conspiracy was broader in scope. Krell, supra; Commonwealth v. Savage, 388 Pa.Super. 561, 566 A.2d 272 (1989); People v. Abbamonte, 43 N.Y.2d 74, 400 N.Y.S.2d 766, 371 N.E.2d 485 (1977). Thus, while we do not disagree with the test outlined in the lead opinion, that federal test might not be sufficient to adequately implement the legislative intent to bar successive federal and state drug prosecutions.

[26] 208 Mich.App. 545, 551, 528 N.W.2d 783 (1995).

The concurring opinion suggests a resolution of the factual question being remanded to the trial court. Before an appellate court can adequately review a trial court's findings for clear error, it must first have the trial court's findings made under the proper standard. The record before this Court is insufficient to preemptively determine whether the defendants faced multiple prosecution for the same act.

Similarly, the concurring opinion also errs in finding, under the constitutional analysis, that these were separate conspiracies. The opinion does not discuss trial court findings of fact, made after that court heard the testimony in the state trials, reviewed both the federal and state indictments and accompanying exhibits, the federal and state statutes the defendants were found to have violated, the testimony of witnesses at the federal trial, the testimony before both the federal and state grand juries, the testimony taken during the preliminary examination and at a federal forfeiture proceeding, and the testimony during the evidentiary hearing on the double jeopardy claim.

The opinion does not attempt to explain away these findings of fact, made by the trial court "after laboriously considering all these factors." The clear error standard is designed to protect against an appellate judge hastily substituting his reaction to the generally limited evidence before him for the considered evaluation of a more informed trial court judge.

[27] Op. at 392.

[28] Unpublished opinion per curiam, issued July 1, 1994 (Docket No. 147116), p 2.

[29] Id.

[30] This also explains why Brown v. Ohio's discussion of greater and lesser included offenses also applies to greater and lesser factual conspiracies. The unique nature of a conspiracy prosecution justifies the broad test outlined in Thomas, rather than the traditional "same elements" test of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The essence of the analysis under Thomas and the other federal conspiracy tests is whether the agreement is for one, possibly extended, criminal enterprise, or more than one; it is not a narrow determination of the "intent and goal" of any one of the conspirators.

[31] Op. at 393, quoting People v. Perlos, 436 Mich. 305, n. 7, 462 N.W.2d 310 (1990).

[32] See defendant-appellant Marx Cooper's brief and appendix on appeal, No. 3, June term 1976, pp 23-25 for discussion, pp 87a-89a for citations of sources discussing the dual sovereignty principle.

[33] Id. at 23. The lead opinion acknowledges the criticism of the dual sovereignty doctrine in the legal community. Op. at 393, n. 11.

[34] Cooper, 398 Mich. at 461, 247 N.W.2d 866.

[35] 398 Mich. at 460, 247 N.W.2d 866.

[36] The passage of time does not alter this conclusion. "The jurisdictional question presented in petitioner's brief, not controverted by the State, reads ...

"The claim, then, is a loss of jurisdiction by the State when petitioner was transferred to the Federal authorities to serve the sentence imposed by the Federal courts." In re Illova, supra at 207, 88 N.W.2d 589.

[37] Op. at 392, n. 10.

[38] Because this Court is remanding these cases for evaluation under the statute, the trial court might reevaluate its decision under Cooper, but need not do so. Its conclusion that Michigan's interests were not vindicated by the federal prosecution remains an open question that this Court has not addressed. As we see it, this Court is remanding the cases for evaluation under the statute without prejudice to the parties' arguments under Cooper.

[39] Op. at 392.

[40] United States v. Baggett, 901 F.2d 1546, 1550 (C.A.11, 1990), held that "the double jeopardy clause [does not] bar[] prosecution for counts dismissed as a result of a subsequently withdrawn plea bargain."

[41] United States v. Garner, 32 F.3d 1305, 1311, n. 6 (C.A.8, 1994), cited by the majority, states, "Even if the double jeopardy did apply, Garner's claims are without merit." The court's opinion did not depend on this resolution, and the degree of analysis reflects its lack of importance in that case. Similarly, United States v. Soto-Alvarez, 958 F.2d 473, 482, n. 7 (C.A.1, 1992), simply cites United States v. Garcia-Rosa, 876 F.2d 209, 235 (C.A.1, 1989), in which the court explained what the defendant was not arguing. The defendant there "concede[d] that his guilty plea on counts two and five of the 1985 indictment did not cause jeopardy to attach with respect to the dismissed counts of that indictment." The First Circuit thus "adopted" this rule in a case where it was not contested. The court did refer, in n. 21, to United States v. Vaughan, 715 F.2d 1373 (C.A.9, 1983), and Fransaw v. Lynaugh, 810 F.2d 518, 524-525 (C.A.5, 1987), where the United States Court of Appeals for the Fifth Circuit wrote, "The cases hold with apparent unanimity that when defendant repudiates the plea bargain, either by withdrawing the plea or by successfully challenging his conviction on appeal, there is no double jeopardy (or other) obstacle to restoring the relationship between defendant and state as it existed prior to the defunct bargain." (Emphasis added.)

[42] United States v. Dahlstrum, 655 F.2d 971, 974 (C.A.9, 1981), is cited in Vaughan, n. 30 supra at 1376-1377, for the proposition that a "dismissal is not equivalent to an acquittal even if dismissal is `with prejudice'". Dahlstrum actually holds that a judge's characterization of a dismissal as one with prejudice does not control where the basis for the dismissal is actually the court's finding of "`governmental misconduct.'" 655 F.2d at 974. Additionally, in Dahlstrum, the United States Court of Appeals for the Ninth Circuit noted that it was not relying "ultimately on the `acquittal' of appellee," id. at 975, n. 5, but on "[a]ppellee's involvement in the termination of the trial was at best minimal[.]" Id. at 975. Vaughan also relied on United States v. Barker, 681 F.2d 589 (C.A.9, 1982), which held that the government could reinstate charges of first-degree murder and conspiracy to commit murder after the defendant successfully had her plea to second-degree murder set aside. See id. 715 F.2d at 1377. Vaughan, the only case cited in the lead opinion where the facts might be seen as somewhat analogous, relied on cases which stood for far different propositions than what the Ninth Circuit claimed for them.