The Law Office of Kurt H King

December 11, 2012

Dual State and Federal Prosecution Does Not Constitute Double Jeopardy

Filed under: Litigation — kurthking @ 5:58 pm
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A new Missouri case upholds Missouri precedent ruling that double jeopardy does not bar prosecution of a defendant for the same offense by separate sovereign jurisdictions, such as the state and federal governments. For example, a defendant who fails to register as a sex offender or who unlawfully possesses a firearm as a felon may be prosecuted by both state and federal governments in which the act constitutes a crime.

In that case, State v. Roach, Opinion No. ED97952 (Mo. Ct. App. E.D., filed November 20, 2012), the defendant plead guilty in federal court to unlawful possession of a weapon, and then persuaded the state court to dismiss the prosecutor’s charge for the same offense based on a state law, on grounds of double jeopardy.  However, the state prosecutor appealed and the Eastern District of the Court of Appeals ruled in favor of the prosecution, reversing the state trial court for erroneously finding that double jeopardy barred the state from prosecuting the defendant for the same offense for which he had just been prosecuted in federal court.  In support of its opinion, the court of appeals cited earlier state and US Supreme Court cases permitting dual prosecution for the same offense by separate sovereigns.

The court of appeals did note the defendant’s argument that 25 other states have enacted statutes limiting state prosecutions following federal prosecution for the same offense.  However, Missouri has yet to join ranks with those states.  The court concluded that it is bound to follow the existing law of this state and referred the defendant  to Missouri’s General Assembly for efforts to make a change.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


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