Criminal Justice Insider
An in-depth review and analysis and of emerging topics in both federal and New York State criminal law. This blog explores developments in substantive and procedural criminal law, providing practical insights to the latest case law and statutory changes.
Double Trouble: Paul Manafort and The State of Double Jeopardy in New York
Few were surprised when Paul Manafort, the former manager of the Trump presidential campaign, which was built in part on the mantra of “drain the swamp,” was convicted of eight counts of felony bank fraud, filing false tax returns, and failing to disclose a foreign bank account in federal District Court for the Eastern District of Virginia. What few people remember about Mr. Manafort’s conviction was that ten additional counts, largely relating to mortgage fraud, conspiracy and falsifying business records resulted in a hung jury wherein no verdict was reached.
Subsequently, in September of 2019, Mr. Manafort pled guilty to additional criminal conduct for conspiracy and witness tampering in federal District Court for the District of Columbia. In the context of his plea agreement, he agreed to admit to the ten remaining charges from the Virginia case on the condition that they be dropped if Mr. Manafort satisfactorily cooperated with the Government. In March of 2019, the D.C. District Court dismissed the ten remaining Virginia charges with prejudice.
This brief history provides the necessary context for what happened in New York on December 18, 2019, and how it impacts important considerations around” double jeopardy.” After Paul Manafort’s guilty plea in D.C. District Court, and the dismissal of his mortgage fraud counts following his cooperation, New York State, through the Manhattan District Attorney’s Office, decided to charge Mr. Manafort for his conduct related to the mortgage fraud. While the official line for this charging decision was to protect the New York residential mortgage market, the true rationale was to ensure that Mr. Manafort would be ultimately convicted on charges for which he could not be pardoned by his former employer, President Trump. The President’s pardon power does not extend to state convictions. Article II, Section 2, Clause 1 of the Constitution limits the President’s pardon power to offenses against the United States.
On December 18, 2019, the New York State charges were dismissed by Justice Maxwell Wiley of the Supreme Court for the State of New York. The decision provides an interesting primer for the interplay of state and federal criminal actions covering related conduct.
The Fifth Amendment provides that, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. ...” That relatively straightforward proposition has been the source of a complex jurisprudential legacy. The most notable doctrine to spring from that short but crucial construct is that of “dual sovereignty.” The “dual sovereignty” or” separate sovereigns” doctrine sets forth that a state and the federal government are “dual sovereigns” with their own laws and policies. It is not a violation of the prohibition on “double jeopardy” for a person to be tried by the federal government as well as their state government. As the Supreme Court held in United States v. Lanza, 260 U.S. 377 (1922), “It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority.” (emphasis added).
Accordingly, it is likely that the Manhattan District Attorney’s Office felt secure in their position that they could indict Mr. Manafort in their capacity as state law enforcement officers despite what had occurred in the federal courts. However, the Constitution and its interpretive case law does not end the double jeopardy inquiry. New York has state statutes on the matter, set forth in Article 40 of the New York Criminal Procedure Law.
N.Y. Criminal Procedure Law §40.20 codifies the double jeopardy policy. It states that a person may not be prosecuted twice for the same offense. The statute continues, in CPL §40.30 by defining what constitutes a previous prosecution, and listing lists exceptions to that definition.
Which brings us back to Mr. Manafort and his criminal gauntlet. There is little question that Mr. Manafort was previously tried on the mortgage fraud counts in the District Court for the Eastern District of Virginia. A jury was empaneled and evidence was presented on these issues. New York Criminal Procedural Law §40.30(1)(b) sets forth that jeopardy attaches and a prosecution has commenced once a jury is empaneled.
Mr. Manafort moved to dismiss the state charges on double jeopardy grounds. The Manhattan District Attorney’s Office argued to the Court that an exception set forth in N.Y. CPL §40.30(4) applied which allows for a subsequent prosecution where the indictment was dismissed and the Court “authorizes the people to obtain a new accusatory instrument.” (emphasis added).
The state court readily rejected this argument. The D.C. District Court explicitly held that ten counts at issue were dismissed with prejudice. The Court held that authorization to bring a new indictment must be explicit. In Mr. Manafort’s case, it was the bar on a new prosecution that was explicit when the mortgage fraud charges were dismissed with prejudice.
The People also argued that the mortgage fraud charges in the state indictment were different from those in the federal indictment because the state charges have a different element than the federal mortgage fraud charges. Specifically, state mortgage fraud charges require that the people prove that the defendant submitted a written statement containing materially false information. (N.Y. Penal Law §187.25). The federal mortgage fraud statute does not contain such an element. (18 U.S.C. §1344).
However, a different element alone is not enough to avoid the statutory bar on double jeopardy. In order to qualify for an exception to the double jeopardy bar, the People must also demonstrate, pursuant to N.Y. C.P.L. §40.20(2)(b), that the statutory provisions at issue are “designed to prevent very different kinds of evil or harm.” Here, the Court was unconvinced that the harms designed to be outlawed by the state statutes were different than those contemplated by the federal statutes. After analyzing the legislative history of both statutes, the Court found that both statutes were intended to promote economic stability.
This decision markedly narrows the separate sovereignty doctrine in New York. It holds that leave to bring new charges must be explicit if the people are relying on N.Y. CPL §40.30(1)(b). Moreover, that for state and federal charges to be sufficiently different for purposes of N.Y. CPL §40.20(2)(b), the evil or harm sought to be outlawed must be substantially different. Following Mr. Manafort’s motion it is that much harder for state law enforcement to bring charges related to a prior federal action.
Obviously, the statutes and jurisprudence around state and federal “double jeopardy” are nuanced and complex. If you find yourself in a position where you are facing state charges following a federal prosecution, you need experienced counsel to analyze these issues. For more information on the topic or you have further questions, do not hesitate to contact us.
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12.19.2019 | PRACTICE AREAS: Criminal Defense