Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 16, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 122183
TIMOTHY P. ZUBKE,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider whether, within
the meaning of MCL 333.7409, defendant’s act that gave rise to
a federal conviction of conspiracy to possess with intent to
distribute a controlled substance was the “same act” that
subsequently gave rise to the state charge of possession with
intent to deliver a controlled substance (PWID ).1 The circuit
court dismissed all state charges against defendant,
concluding that the state was barred under § 7409 because
defendant had already been convicted under federal law for the
“same act.” The Court of Appeals affirmed. We reverse the
judgment of the Court of Appeals because we conclude that, for
purposes of § 7409, defendant’s act that gave rise to his
federal drug-conspiracy conviction was not the “same act” that
gave rise to the state PWID charge. Accordingly, we remand
this case to the circuit court for trial on all charges.
I. BACKGROUND
On August 10, 2000, federal authorities indicted
defendant on multiple counts of conspiracy to possess with
intent to distribute more than 100 kilograms of marijuana and
more than 5 kilograms of cocaine, in violation of 21 USC 841
and 21 USC 846. The indictment alleged a conspiracy
commencing in January 1993 and continuing through August 10,
2000. In January 2001, defendant pleaded guilty to a single
count of conspiracy to possess with intent to distribute
cocaine. He was sentenced on May 14, 2001.
In the meantime, on July 7, 2000, state authorities filed
the instant charges against defendant. The complaint alleged
1
Section 7409 also bars state prosecution when defendant
has been acquitted under federal law or has been acquitted or
convicted under the laws of another state for the same act.
2
that on July 6, 2000, defendant possessed with intent to
deliver more than 225 grams, but less than 650 grams, of
cocaine, in violation of MCL 333.7401, and that he possessed
a firearm during the commission of this felony, in violation
of MCL 750.227b. Defendant was bound over for trial on
September 15, 2000, and on February 26, 2001, he filed a
motion to dismiss the state charges. MCL 333.7409 generally
precludes state prosecutions if the same act has been the
predicate for a federal prosecution. Pursuant to § 7409,
defendant contended that he could not be prosecuted by the
state for PWID because he had already been convicted under
federal law for the “same act.” His claim was that he fell
within the protections of § 7409 because the federal drug
conspiracy conviction involved the same period in which the
PWID allegedly occurred. On March 23, 2001, the circuit court
granted defendant’s motion and dismissed all state charges
against him, finding that the state prosecution was barred by
§ 7409.
The prosecutor appealed by right, and on July 30, 2002,
the Court of Appeals, in an unpublished opinion, affirmed.2
This Court granted the prosecutor’s application for leave to
2
Unpublished opinion per curiam, issued July 30, 2002
(Docket No. 234130).
3
appeal.3
II. STANDARD OF REVIEW
We review de novo a trial court’s decision that involves
statutory interpretation. People v Thousand, 465 Mich 149,
156; 631 NW2d 694 (2001).
III. ANALYSIS
MCL 333.7409 provides:
If a violation of this article [the
controlled-substances act] 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. [Emphasis added.]
We must determine whether, for purposes of § 7409, defendant’s
act that gave rise to the federal drug-conspiracy conviction
was the “same act” that gave rise to the state PWID charge.
An “act” is defined as, “[a] thing done; a deed.” The
New Shorter Oxford English Dictionary. Thus, a court, for
purposes of § 7409, must determine whether defendant’s “thing
done,” or “deed,” that gave rise to his federal conviction
constitutes the same “thing done” or “deed” that gave rise to
the state charge.4 If it does not, then § 7409 does not
operate to bar the state prosecution.
3
467 Mich 921 (2002).
4
In making this determination, the circuit court must
examine the underlying facts and circumstances of each
individual case.
4
Applying this rule to this case, we conclude that the
state charge did not violate the “same act” prohibition of
§ 7409. The “thing done” or “deed” that gave rise to the
federal conspiracy conviction was the entering into an
agreement to possess cocaine, whereas the “thing done” or
“deed” that gave rise to the state PWID charge was defendant’s
actual physical possession or control of the cocaine. Thus,
because the act giving rise to each charge was different, such
acts were not, for purposes of § 7409, the “same act.”
In affirming the circuit court’s decision to dismiss the
charges against defendant, the Court of Appeals relied on its
decision in People v Aliva (On Remand), 229 Mich App 247, 250
251; 582 NW2d 838 (1998), in which the Court affirmed a
decision of a trial court to dismiss a charge, concluding that
under § 7409 such a charge arose out of the “same acts” as
those that formed the basis of the federal conviction. There,
as here, defendant pleaded guilty to a federal drug-conspiracy
charge and then moved to have the state PWID charge dismissed.
The trial court agreed with defendant and dismissed the state
charges. On appeal, the Court of Appeals held that, although
the federal conspiracy conviction did not constitute the “same
offense” as the state PWID charge, the state PWID charge “arose
out of the same acts as those that formed the basis of the
federal drug conviction,” and thus the state prosecution was
5
barred by § 7409. Id. at 251.
For the same reasons we find that the Court of Appeals
erred in this case, we find that the Avila Court erred. As in
this case, the act or conduct that gave rise to Avila’s
federal drug-conspiracy conviction was his entering into an
agreement to possess drugs, whereas the act or conduct that
gave rise to Avila’s state PWID charge was his physical
possession or control of the drugs. Thus, because the act or
conduct giving rise to each charge was different, such acts or
conduct were not, for purposes of § 7409, the “same act.”
Section 7409 bars the state from prosecuting a defendant
where he has already been prosecuted under federal law for the
“same act,” not for the “same offense.” Therefore, it is a
defendant’s actions that must be compared, not the elements of
the crimes.5
In sum, § 7409 bars the state from prosecuting a
defendant where that defendant has already been convicted
under federal law for the “same act.” Accordingly, if the act
that gave rise to the federal conviction is the “same act”
that gave rise to the state charge, i.e., the same “thing
done” or “deed,” the state prosecution is barred. However, if
the act that gave rise to the federal conviction is not the
5
Here, the act of possessing is not subsumed within the
act of conspiring, nor is the act of conspiring subsumed
within the act of possessing.
6
“same act” that gave rise to the state charge, the state
prosecution is not barred.
IV. CONCLUSION
For purposes of § 7409, defendant’s act that gave rise to
his federal drug-conspiracy conviction was not the “same act”
that gave rise to the state PWID charge. Accordingly, we
reverse the judgment of the Court of Appeals and remand this
case to the trial court for trial on all state charges.
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
CAVANAGH, J.
I concur in the result only.
Michael F. Cavanagh
7
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 122183
TIMOTHY P. ZUBKE,
Defendant-Appellee.
___________________________________
KELLY, J. (dissenting).
I respectfully dissent and would hold that MCL 333.7409
bars the state prosecution in this case because the same
criminal act "gave rise" to both the federal and the state
charges. Therefore, I would affirm the decision of the Court
of Appeals.
I do not dispute the majority's contention that the only
necessary element of the federal conspiracy charge is an
agreement to possess cocaine. However, the elements of the
crime are not at issue here; the majority stresses that the
question is whether "defendant's act that gave rise to the
federal drug-conspiracy conviction was the 'same act' that
gave rise to the state PWID charge."1 Ante at 4. It is my
conclusion that the act that gave rise to the PWID charge was
part of the basis for the federal conspiracy conviction.
By the majority's own terminology, the question is not
whether the act is necessary for the federal conviction, but
whether it "gave rise" to the federal conviction. "In making
this determination, the circuit court must examine the
underlying facts and circumstances of each individual case."
Ante at 4 n 4. In the words of the majority:
Applying this rule to this case, we conclude
that the state charge did not violate § 7409's
"same act" prohibition. The "thing done" or "deed"
that gave rise to the federal conspiracy conviction
was the entering into an agreement to possess
cocaine, whereas the "thing done" or "deed" that
gave rise to the state PWID charge was defendant’s
actual physical possession or control of the
cocaine. Thus, because the act giving rise to each
charge was different, such acts were not, for
purposes of § 7409, the "same act." [Ante at 5.]
The "underlying facts and circumstances" here do not
support the majority's conclusion. As the majority noted, the
federal indictment charged a conspiracy "commencing in January
1993 and continuing through August 10, 2000." Ante at 2. The
1
I would note that the prosecution did not propose this
analysis. In fact, the prosecutor relied on the distinction
between the elements of the crimes and made no argument at all
that involved these particular facts.
2
incident that formed the basis of the instant charges occurred
within that period, on July 6, 2000. In addition, Assistant
United States Attorney Ross Parker submitted an affidavit
stating that "it was the government's intention to proffer
evidence of [this incident] in federal court as part of its
case in chief had [defendant] gone to trial."
Therefore, there is ample evidence that the July 6
incident was an integral part of the federal conspiracy case.
As the Court of Appeals noted, there is a "general practice of
federal prosecutors to prove conspiracies with evidence of
overt acts of the underlying substantive crime, even in the
absence of an overt act requirement. See [People v Mass, 464
Mich 615, 650; 628 NW2d 540 (2001)] (Markman J., concurring)."
Unpublished opinion per curiam, issued July 30, 2002 (Docket
No. 234130) at 4.
One might question whether the Court of Appeals was
correct in concluding that the "state substantive crime [was
thus] a functional element of the federal conspiracy crime .
. . ." Id. However, it is beyond dispute that it was correct
in stating that overt acts form a partial basis for the
convictions obtained in most federal conspiracy cases. They
are used to prove the existence of the conspiracy agreement.
If a federal case required proof of a certain act to obtain a
conviction, that act "gave rise" to the federal conviction.
3
This is not to say that a federal conspiracy prosecution
is an absolute bar to state charges for offenses that bear
some relation to the conspiracy. For instance, if the
incident at issue here had occurred outside the time frame
stated in the federal indictment, there would be no bar.
Moreover, if the act were not to be used as evidence in the
federal case, there would be no bar.
Here, the Court of Appeals correctly concluded on the
basis of the evidence submitted that the same act gave rise to
part of both the federal and the state charges:
[D]efendant explained that the July 6, 2000,
incident occurred within the same time frame as the
events forming the basis of the federal conspiracy
charge, both charges were based on the acts of
defendant in purchasing controlled substances in
Texas and selling the controlled substances to drug
dealers in the Detroit metropolitan area, and the
federal government had planned on using the July 6,
2000, incident as part of its case-in-chief against
defendant. Defendant submitted with his motion and
his brief on appeal an affidavit by the Assistant
United States Attorney prosecuting the federal
charges, who stated that the government intended to
offer, as part of its case-in-chief, evidence of
the June-July 2000 criminal acts as overt acts in
furtherance of the conspiracy. [Slip op at 3.]
Given the appropriate test, the Court of Appeals engaged
in the correct analysis. Specifically, the "underlying facts
and circumstances" tend to show that the July 6 incident
formed part of the basis for the federal conspiracy
conviction. The prosecutor makes no argument in support of a
4
different conclusion, instead focusing on the general elements
of each crime, an argument inapposite to the test articulated
by the majority.
In this case, the federal prosecutor chose to make the
incident at issue part of the factual basis for defendant's
conspiracy conviction. The prosecutor might have avoided
including it, seeking a conviction based on a simple
conspiracy agreement, without any evidence of defendant's
acts. But, given the undisputed fact that the July 6 incident
was part of the purported conspiracy proofs, I conclude that
the incident "gave rise" to the conspiracy conviction.
Therefore, I would affirm the decision of the Court of
Appeals.
Marilyn Kelly
5