dissenting.
I respectfully dissent.
I agree with the analysis of the Court of Appeals and the majority with respect to the receiving conviction. The only issue I consider here is whether the defendant’s acquittal of the federal charges bars the kidnapping prosecution by the state. The Court of Appeals upheld such a bar for the kidnapping charge on the grounds of judicial policy. I would reach the same result but for different reasons.
Defendant claims that the state prosecution for kidnapping after the acquittal of the federal charge of robbery amounts to double jeopardy. In State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975) we adopted the same evidence test in analyzing double jeopardy problems. We continue to uphold that test. In the case before us it is obvious that the evidence to convict someone of robbery is not the same as that required to convict him of kidnapping. Thus, assuming we were to adopt the policy that only one sovereign may prosecute the defendant for the same crime, the same evidence test in this case would not bar the state from prosecuting the defendant for kidnapping; rather, it would only bar the state from prosecuting the defendant for robbery.
However, the factual circumstances surrounding this case necessitate further analysis. The state stipulated that “. to clarify and simplify the issues, there was no rational basis for the federal jury’s verdict other than the defendant was not present at the bank.”1 The state is bound by its stipulation. Since it stipulated to the fact that the federal jury could only have reached its verdict by finding that the defendant was not present at the bank, a fortiori the state must agree that the federal jury concluded that the defendant could not have kidnapped the two women outside of the bank also. In a civil case collateral estoppel would bar a redetermination of such a material fact by a second jury. In a criminal case similarly a redetermination of such a material fact is normally precluded. Cf. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Thus, in this case collateral estoppel would have barred the kidnapping charge based upon the state’s stipulation and the federal jury’s acquittal of robbery, assuming we only allow one prosecution by either the state or the federal government.
Thus, I now reach the central issue: may both the federal and state government prosecute and punish a defendant for the same crime? Should the concept of single prosecutions (or single determinations of material facts) be circumvented by the concept that each sovereignty may prosecute such crimes or determine such facts merely because it is a sovereign? The United States Supreme Court has held that the federal Constitution does not bar such double prosecutions. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). I, however, am unable to approve of such duplicate prosecutions in view of our double jeopardy clause, N.M.Const. art. II, § 15, and my feelings about basic fairness. To make a defendant face the manifold resources of two sovereigns and be tried twice for the very same crime is tantamount to vexatious prosecution. I agree with the spirit of Black’s dissent in Bartkus v. Illinois, 359 U.S. at 154-55, 79 S.Ct. 676. I would hold that the stipulation and the acquittal by the federal jury under the concept of collateral estoppel2 would bar the kidnapping charge and conviction.
For the foregoing reasons I dissent from the majority’s continued adherence to the concept of dual sovereignty.
. Another obvious, rational basis for the federal jury’s acquittal is that the prosecutor failed to convince the jury beyond a reasonable doubt as to each element of the federal crime of bank robbery.
. Technically, collateral estoppel requires litigation between the same parties. Here the parties were not the same (first the federal government versus the defendant; second, the state versus the defendant). However, the state and federal government should be treated as the same vis-a-vis a defendant with respect to prosecutions of the same crime.