Jurisdiction and Subsequent Prosecutions (Part 2)

The New Jersey Supreme Court concluded with the following in relevant part: We agree with the trial court and Appellate that the federal proceeding did not culminate in a jury finding that defendants had in fact murdered James. This distinction sufficiently distinguishes the State’s interest in prosecuting defendants for murder from the United States’ interest in prosecuting them for their drug crimes. We emphasize that the district court’s decision to impose a cross-reference enhancing defendants’ sentences is not equivalent to the jury’s verdict finding them guilty of murder in the first degree.

Although the life-without-parole sentences imposed on defendants are “the second most severe penalty permitted by law,” State v. Zuber (2017) (quoting Graham v. Florida, (2010)), our Crime Victim’s Bill of Rights, N.J.S.A. 52:4B-34 to -38, requires us to ensure that our victim-focused provisions — including involvement of the victim’s family — were vindicated by the federal prosecution. Here, for example, it appears that James’s family was present at the state proceedings, but — although the federal record is unclear on this point — there is no suggestion that his family attended the federal sentencing proceeding. Thus, although the question is close, here the factors on balance tip in favor of finding that the federal prosecution did not adequately serve the State’s interests.

Accordingly, we conclude that the trial court did not abuse its discretion in denying defendants’ motion to dismiss the indictment. Because failure to satisfy any element of the statute indicates that dismissal of the indictment is not the appropriate result, we need not reach the question of whether the two prosecutions were “based on the same conduct,” as N.J.S.A. 2C:1-3(f) requires.

This decision invites collusion between federal and state prosecutors. It is not difficult to imagine that a state prosecutor would encourage a federal prosecutor, or vice-versa, to take certain steps and omit others so that a subsequent prosecution can be had without violating double jeopardy and/or fundamental fairness.