concurring in part and dissenting in part.
I agree with the majority’s conclusion that Counts 1-5 and 11-25 of the Franklin County charges (“the state charges”) against Smith are barred by the statutory prohibition against double jeopardy, Indiana Code section 35-4141-5. But respectfully, I do not agree that the remaining state charges, Counts 6-10, can stand. I believe those charges, which allege that Smith knowingly transacted business as a broker-dealer without being registered to do so, are also barred. Indiana’s double-jeopardy statute provides:
In a case in which the alleged conduct constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction, a former prosecution in any other jurisdiction is a bar to a subsequent prosecution for the same conduct in Indiana, if the former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.
Ind.Code § 35-41-4-5. Thus, a conviction in any other jurisdiction bars a later prosecution in this State for the “same conduct.” State v. Allen, 646 N.E.2d 965, 968 (Ind.Ct.App.1995), reh’g denied, trans. denied. Whether a prosecution is barred by double jeopardy is a question of law. Id. at 972. Importantly, “this determination is made by considering the ‘overt acts’ alleged in the sister jurisdiction’s charge in juxtaposition with the allegation in the State’s charge.” Id.
The majority concludes that Counts 6-10 may go forward because those charges are not based on the same conduct underlying Smith’s federal conviction. The majority reaches this conclusion by reasoning that Smith could have been charged in federal court for conspiracy to commit fraud even if he was a registered dealer-broker, and likewise could have been charged in state court for failing to register as a dealer-broker even if he sold legitimate securities. I believe this hypothetical reasoning ignores the directive of our previous decisions to look to “consider[ ] the ‘overt acts’ alleged in the sister jurisdiction’s charge in juxtaposition with the allegation in the State’s charge.” Id.
The overt act alleged in the state charges is Smith’s sale of a security despite not being registered as a dealer-broker. The federal charging information cites the same conduct. Describing the operation of Smith’s conspiracy and scheme to defraud, the federal charging information states that Smith was not licensed to sell securities as required by *1192Indiana law. While Smith’s failure to register as a dealer-broker was not specifically mentioned in the section describing acts in furtherance of the conspiracy, we should view the federal charging information as a whole, given that the federal prosecutor controlled its content. And here, the federal prosecutor chose to include Smith’s failure to register as a dealer-broker. When reviewing the federal charging information as a whole, I conclude that both the federal and state charges rely in part on Smith’s failure to register as a dealer-broker. For this reason, I respectfully disagree with the majority’s conclusion that Counts 6-10 can stand. Because I find that these charges are barred by Indiana’s statutory prohibition against double jeopardy, I would dismiss Counts 6-10.