State v. RobertsonState v. Robertson
Introduction
¶ 1 Defendant D. Chris Robertson was prosecuted and convicted by the federal government for possession of child pornography. The State of Utah subsequently charged him with twenty counts of sexual exploitation of a minor based on the same conduct. Mr. Robertson argues that Utah Code section 76-1-404 prohibits this subsequent state prosecution. That statute provides that “[i]f a defendant‘s conduct establishes the commission of one or more offenses within the concurrent jurisdiction of this state and of
¶ 2 Under our previous interpretation of section 404, this statute would present no barrier to the current prosecution. In State v. Franklin,1 we concluded that section 404 incorporated the “dual sovereignty” doctrine, a principle of double jeopardy law that permits subsequent prosecutions by different sovereigns, even for the “same offense.” The court of appeals affirmed Mr. Robertson‘s convictions in accordance with this precedent.
¶ 3 Today, we reassess that earlier interpretation and ultimately conclude that it was wrongly decided. Taking into account stare decisis considerations, we overrule Franklin as to that issue and hold that the legislature‘s use of the phrase “same offense” in section 404 is an express rejection of the dual sovereignty doctrine. Properly interpreted, section 404 requires courts to employ only the Blockburger-Sosa test for determining whether two offenses are the “same offense.” Under this test, two offenses are not the same if each requires proof of an element that the other does not.
¶ 4 After articulating the correct interpretation of the statute, we apply it to this case. Because the charged offenses in his federal and state prosecutions are the “same offense” under the Blockburger-Sosa test, and because the record shows that the state prosecution is based on the same conduct that was at issue in the initial federal prosecution, we conclude that section 404, properly interpreted, prohibits the State from prosecuting Mr. Robertson. We therefore reverse the decision of the court of appeals.
Background
¶ 5 In March 2009, one of Mr. Robertson‘s employees alerted authorities that Mr. Robertson was viewing child pornography on his workplace computer. The Utah Internet Crimes Against Children Task Force (ICAC) began an investigation. Detective Mark Buhman, a Salt Lake City Police Department (SLPD) Officer assigned to the Utah ICAC, was made lead investigator on the case. The Utah ICAC is a “multi-jurisdictional task force that investigates and prosecutes
¶ 6 Detective Buhman eventually secured a warrant to search Mr. Robertson‘s business and seize his computers. During the search, officers seized a black, custom-built computer; a Dell computer; and several computer storage media. Examination of the computers revealed more than 24,000 still images of child pornography and approximately 380 child pornography videos. Mr. Robertson agreed to speak to Detective Buhman during the search and admitted to viewing and downloading child pornography. But he denied re-sending or producing any pornography. Detective Buhman was eventually reassigned and Special Agent Benjamin Lee of the Utah Attorney General‘s Office took over the case.
¶ 7 Agent Lee concluded the investigation and decided to have the case screened for federal prosecution. Before moving forward with federal screening, Agent Lee sought approval from the Assistant Utah Attorney General who oversaw ICAC cases. Seeking such approval was standard protocol, and the Assistant Utah Attorney General had no objection. The State sought federal prosecution in order to obtain a more severe sentence.5
¶ 8 During federal screening, Agent Lee presented an attorney from the United States Attorney‘s Office with ten or eleven short digital videos depicting child pornography. Agent Lee testified that these videos “would have been from the Dell computer.” The United States Attorney‘s Office concluded that there was probable cause to support federal prosecution.
¶ 10 Upon learning of the federal sentence, an Assistant Utah Attorney General contacted Agent Lee to “discuss the possibility of filing state charges.” After reviewing the evidence, the Assistant Utah Attorney General decided to proceed with state prosecution of Mr. Robertson. The State charged him with twenty counts of sexual exploitation of a minor in violation of Utah Code section 76-5a-3.7
¶ 11 Mr. Robertson moved to dismiss the State charges, claiming that the State‘s prosecution violated his constitutional right to due process under the double jeopardy clause of the state and federal constitutions, violated Utah Code section 76-1-404‘s rule against double jeopardy, and was barred by the doctrines of res judicata and collateral estoppel. He also claimed that the State‘s prosecution was vindictive. The trial court denied Mr. Robertson‘s motion to dismiss, finding that the state prosecution following federal prosecution was permissible under current law and that the State‘s prosecution was not vindictive. As part of its order denying Mr. Robertson‘s motion, the court specifically found that Mr. Robertson‘s Utah prosecution was “[b]ased on the same body of evidence” as his federal prosecution. Mr. Robertson filed a petition for interlocutory appeal, which was denied.
¶ 12 After a bench trial where Mr. Robertson did not contest his guilt, he was convicted and sentenced to twenty concurrent terms of one to fifteen years in prison. At the sentencing hearing, the trial court described the case as “basically the same case that was had in federal court, it‘s based on the same facts.” The court decided not to treat the prior federal conviction as an aggravating factor, reasoning that the federal conviction is “exactly the same case, same investigation, the same facts. . . . [and that] it would be unduly prejudicial . . . to consider it a prior criminal conviction when it‘s based on the same facts and circumstances.”
¶ 13 Mr. Robertson appealed to the court of appeals, arguing “that the dual sovereignty doctrine should not apply under the circumstances of this case and that his state court convictions are
Standard of Review
¶ 14 We granted certiorari to address whether the court of appeals erred in holding that
Analysis
¶ 15 The double jeopardy clauses of both the Utah and federal constitutions limit the government‘s ability to prosecute or punish an individual multiple times for the same conduct.18 In general, “[t]he prohibition against double jeopardy protects defendant[s] against three things: prosecution for the same offense after acquittal, prosecution for the same offense after conviction, and the infliction of multiple punishments for the same offense.”19 These protections turn on whether the subsequent prosecution or punishment is for the “same offense.” There are two analyses that guide our inquiry into whether two offenses are the “same” under either constitution.
¶ 16 First, we employ the test announced by the United States Supreme Court in Blockburger v. United States:20 two offenses are considered not the “same” when each “requires proof of a fact which the other does not.”21 We adopted this same test for use in double jeopardy cases arising under the Utah Constitution in State v. Sosa.22 There we stated that if “the elements of [a defendant‘s] separate prosecutions differ, and either offense could have been established without establishing the other, the double jeopardy doctrine does not apply.”23 Under this test, a lesser included offense is considered
¶ 17 Second, we look to whether the successive prosecution is undertaken by the same sovereign. “[W]hen the same act transgresses the laws of two sovereigns, ‘it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable.‘”26 Thus, even if two crimes would constitute the “same offense” under the Blockburger-Sosa test, they are considered separate offenses if prosecuted by two separate sovereigns, such as with successive prosecutions for the same conduct under state and federal law. This is known as the “dual sovereignty doctrine.”27
¶ 18 These two analyses—Blockburger-Sosa and dual sovereignty—together determine whether a defendant has been prosecuted or punished for the “same offense” under both federal and Utah constitutional law. Some states have departed from this approach by enacting statutes that limit the dual sovereignty doctrine.28 In these states, “a prior federal prosecution is a complete bar to a subsequent prosecution by the state.”29 The question before us today is whether our legislature in enacting
¶ 19 Our discussion of this issue proceeds in three parts. First, we discuss our prior interpretation of section 404, found in State v. Franklin, and conclude that we squarely held that section 404 incorporated without limitation the dual sovereignty doctrine. Second, we discuss whether that interpretation should be overruled today. We hold that it should. We then interpret section 404‘s use of
I. In State v. Franklin, We Held that Section 76-1-404 Incorporated the Dual Sovereignty Doctrine
¶ 20 The heart of this case is the proper interpretation of
If a defendant‘s conduct establishes the commission of one or more offenses within the concurrent jurisdiction of this state and of another jurisdiction, federal or state, the prosecution in the other jurisdiction is a bar to a subsequent prosecution in this state if:
(1) the former prosecution resulted in an acquittal, conviction, or termination of prosecution, as those terms are defined in Section 76-1-403; and
(2) the subsequent prosecution is for the same offense or offenses.
We have addressed this statute only once, in State v. Franklin.30 Because the parties dispute the precedential effect of our discussion of section 404 in Franklin, we will review our decision in that case in some detail.
¶ 21 The defendant in Franklin was “an avowed racist” who “shot and killed two black men who were jogging in Liberty Park with two white women.”31 He was convicted in federal court “of violating the civil rights of his victims,” a federal offense, and received two life sentences.32 “After the federal prosecution, defendant was charged and tried by the State of Utah for two counts of first degree murder,” with the State seeking the death penalty.33
¶ 22 On appeal, the defendant claimed that his subsequent “trial in state court after his conviction in federal court violated the prohibitions against double jeopardy contained in the United States Constitution and in the Utah Constitution and Code“—section 76-1-404.35 We first analyzed whether the two prosecutions were for the “same offense” under the Blockburger-Sosa test, which looks to whether the two offenses were “defined by the same legal elements.”36 We concluded that “[e]ach of the offenses of which defendant ha[d] been convicted require[d] proof of facts that the other does not.”37 For the civil rights violation, the federal prosecutor had to prove that the “defendant, by threat or force, willfully injured, intimidated, or interfered with another person because of the other‘s race, color, or national origin and because he was enjoying a benefit, service, privilege, program, or activity provided or administrated by a state.”38 But for the state offenses, the prosecutor was required to prove that the defendant “intentionally or knowingly kill[ed] both victims at the same time or in a manner that endangered the lives of persons other than himself or his victims.”39 “Thus, the federal and state statutes under which defendant was convicted require[d] proof of different elements and d[id] not define the same offense“—i.e., they were not the “same offense” under Blockburger-Sosa.40
¶ 23 Having reviewed whether the offenses were the same under the Blockburger-Sosa analysis, we then proceeded to the second analysis of whether the two offenses were the same: the dual sovereignty doctrine, which looks to whether the offenses were against the same sovereign. We concluded that “[d]efendant‘s
¶ 24 The defendant in Franklin argued that we should “abandon the dual sovereignty doctrine” because section 76-1-404 “compels that result.”44 In our discussion of section 404, we noted that the protections offered by the statute turned on the meaning of “same offense.”45 This was crucial to our analysis for, “[w]hen the legislature uses a word with a well-established legal meaning, we assume that the legislature is aware of that meaning and has used the word in its proper sense.”46 We compared section 404 to the preceding statutory section, discussing how that section, which deals with offenses arising out of the same criminal episode, does not use the specific term “same offense,” a well-established term of art.47 Thus, we concluded that the statutes indicated “the legislature‘s awareness of double jeopardy terminology and its intent to use that terminology precisely.”48 Ultimately, we held that section 404 should be viewed “as a legislative codification of traditional double jeopardy interpretation,” which included the dual sovereignty doctrine.49
¶ 25 Mr. Robertson argues that this second holding, our conclusion that section 404‘s use of “same offense” evidenced the
¶ 26 When we say that a holding is binding only when it is “necessary,” we do not mean that the holding must be the singular basis for our ultimate decision. Courts “often confront cases raising multiple issues that could be dispositive, yet they find it appropriate to resolve several, in order to avoid repetition of errors on remand or provide guidance for future cases. Or, [courts] will occasionally find it appropriate to offer alternative rationales for the results they reach.”51 Were we to require that a holding must be necessary in some strict, logical sense before it becomes binding precedent, then every time we articulated alternative bases for a decision we would convert our opinion into dicta, for none of the alternative bases are strictly necessary for the outcome. “[L]awyers advising their clients would have to guess whether a later [court] will recognize a ruling that is directly on point as also having been necessary. We decline to introduce such uncertainty into the law . . . .”52
¶ 27 Instead, “necessary” “means only that the court undeniably decided the issue, not that it was unavoidable for it do so.”53 As the Ninth Circuit stated:
Of course, not every statement of law in every opinion is binding . . . . Where it is clear that a statement is made casually and without analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the [court‘s] full attention, it may be appropriate to re-visit the issue in a later case. . . . Where, on the other hand, it is clear that a majority of the [court] has focused on the legal issue presented by the case before it and made a deliberate decision to resolve the issue, that ruling becomes the law . . . .54
Thus, when this court “confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the [state], regardless of whether doing so is necessary in some strict logical sense.”55
¶ 28 As discussed above, under traditional double jeopardy jurisprudence, the Blockburger-Sosa analysis and the dual sovereignty doctrine must both be satisfied for two offenses to be considered the same. In other words, two offenses are the same when they require proof of the same facts and are prosecuted by the same sovereign. Conversely, two offenses are not the same where each requires proof of a fact that the other does not or where they have been prosecuted by two different sovereigns. Failing either analysis means the offenses cannot be considered the “same” and, therefore, prosecution of both offenses is not barred by double jeopardy. In Franklin, we determined that the offenses were not the same under either analysis and that nothing in section 404 altered that result. As our discussion of one analysis did not preclude the consideration of the other, both analyses—Blockburger-Sosa and dual sovereignty—were germane to our ultimate decision. Thus, our second holding in Franklin, which specifically incorporated the dual sovereignty doctrine into our interpretation of section 76-1-404, was not dicta but an alternative holding that justified the result we reached. Accordingly, it is binding precedent. We turn now to the issue of whether that precedent should be overruled.
¶ 29 Having clarified the precedential value of State v. Franklin,56 we now discuss whether our decision therein that
A. We Are Persuaded that Franklin‘s Interpretation of Section 76-1-404 Should Be Overruled
¶ 30 We consider at least three factors when deciding whether to overrule a prior interpretation of a statute: “the plausibility of the existing interpretation given the statute, the degree to which that interpretation has worked itself into the state of the law, and the strength of the arguments for changing that interpretation.”60 We discuss each factor below and conclude that they weigh in favor of overruling State v. Franklin.
1. The plausibility of the existing interpretation
¶ 31 The first factor that we consider is “the plausibility of the existing interpretation given the statute.”61 This factor is analogous
¶ 32 Our interpretation of section 404 in Franklin is undermined by the fact that we did not consider in any great depth any of the language of the statute other than the phrase “same offense.”65 Although we noted that “same offense” was a term of art with particular meaning in the double jeopardy context and was intentionally used as a term of art in the statute, we did not examine whether the legislature intended to modify or limit the definition of that term of art. A familiar canon of statutory construction is that the context of a statute may eliminate potential interpretations of a statutory phrase.66 And a possible interpretation of a statutory term that “undercut[s] the express language”67 of the statute must be rejected because “we give effect to every word of a statute, avoiding ‘[a]ny interpretation which renders parts or words in a statute inoperative or superfluous.‘”68
¶ 33 The language of
2. The degree to which the prior interpretation has worked itself into the law
¶ 34 The second factor we consider in deciding whether to overrule a prior interpretation of a statute is “the degree to which that interpretation has worked itself into the state of the law.”72 This requires weighing “whether the interpretation in question has become settled in the minds of the bench and bar” and “the degree to which the interpretation, however old, has been woven into the fabric of the law.”73 This factor corresponds with the second factor considered in deciding whether to overrule common law precedent: “how firmly the precedent has become established in the law since it was handed down,” which looks to “the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people‘s reliance on the precedent would create injustice or hardship if it were overturned.”74 Ultimately, we are concerned with whether overruling our precedent would upend broad swaths of the legal landscape.
¶ 35 Mr. Robertson argues that Franklin, while almost thirty years old, has not been “woven into the fabric of the law” because it has never again been cited for its interpretation of
¶ 36 Although the lack of citations is generally inconclusive, there are other ways of determining whether a particular interpretation has worked its way into the law. For example, in A.C. Financial, the prior interpretation had created a “widely accepted rule” that was repeatedly recognized in later cases.78 We also noted that the general public had apparently accepted our interpretation, as demonstrated by the fact that “many mortgages and trust deeds . . . contain[ed] multiple provisions” directly related to the rule we had adopted.79 Such acts showed a general acceptance of the prior interpretation and reliance on that interpretation by the public in settling their affairs. There is no such evidence in this case.
¶ 37 There are no other cases reaffirming the interpretation we adopted in Franklin. There are no other statutes or common law doctrines that depend on or otherwise incorporate our interpretation of section 404. And we are not persuaded that there is any great reliance on Franklin‘s interpretation of section 404. There are no contractual, property, or similar vested rights created by our interpretation of section 404 that would be undermined by departing from Franklin today. Indeed, the effects of a departure from our interpretation in Franklin are both obvious and narrow: the State would be prohibited from prosecuting a defendant who has already been prosecuted in another jurisdiction for the same offense.80 Thus,
3. The strength of the arguments for changing the prior interpretation
¶ 38 The third factor we look to when deciding whether to overrule a prior interpretation of a statute is “the strength of the arguments for changing that interpretation.”82 Under this factor we inquire whether “more good than harm will come by departing from precedent.”83 We do so by looking to policy arguments and “practical factors” that inform our careful consideration of where the departure from precedent will lead us.84
¶ 39 The State argues that our prior interpretation of
¶ 40 Although the State‘s arguments have some merit—indeed, these were the very reasons why we originally incorporated the dual
¶ 41 As we discussed above, the plain language of
¶ 42 Further, there are policy reasons that favor an expansion of double jeopardy principles. As the United States Supreme Court stated:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.94
Double jeopardy principles provide vital protections to individuals, and the legislature‘s apparent intent to expand such protections beyond the constitutional minimum should be respected. These considerations—separation of powers and double jeopardy principles—are compelling arguments in favor of abandoning our prior interpretation of section 404.
¶ 43 Each of the three factors discussed above weighs in favor of overruling our prior interpretation that section 76-1-404 incorporated the dual sovereignty doctrine. Although we are generally reluctant to overrule precedent, this case is a prime example of a circumstance where revisiting a prior decision is both justified and appropriate. Accordingly, we hereby overrule our holding in Franklin that section 76-1-404 is simply “a legislative codification of traditional double jeopardy interpretation,”95 including the dual sovereignty doctrine.96 We turn now to the appropriate meaning of that section.
¶ 44 Utah Code
¶ 45 As we recognized in Franklin, “[w]hen the legislature uses a word with a well-established legal meaning, we assume that the legislature is aware of that meaning and has used the word in its proper sense.”97 Our determination in Franklin that “same offense” was a term of art that had particular meaning in the double jeopardy context is still correct. The legislature‘s use of the term “same offense” as a specific condition of the protections offered by section 404 “is indicative of the legislature‘s awareness of double jeopardy terminology and its intent to use that terminology precisely.”98 Indeed, the prior version of section 404, in effect until 1973, stated that a prior “criminal prosecution under the laws of a state, government, or country, founded upon the act or omission in respect to which he is on trial” in Utah was “a sufficient defense.”99 The legislature amended the statute, changing the more general language of “act or omission in respect to which he is on trial” to that of “same offense or offenses,” deliberately invoking the double jeopardy term of art. Thus, though we have overruled our narrow conclusion in Franklin that the term “same offense” incorporated the dual
¶ 46 “Generally, absent express direction to the contrary, we presume that a term of art used in a statute is to be given its usual legal definition.”100 Section 404 contains such direction. As has been discussed, the term “same offense” connotes two separate analyses: the Blockburger-Sosa test and the dual sovereignty doctrine. It is impossible to incorporate both of these approaches into the statute, however, because incorporation of the dual sovereignty doctrine renders the statute a nullity—both permitting and forbidding subsequent Utah prosecutions for the “same offense“—and ignores the unmistakable legislative intent to limit the dual sovereignty doctrine. Thus, “all but one of the meanings [has been] eliminated by context”101 and section 404‘s use of the term of art “same offense” incorporates only the Blockburger-Sosa test. We accordingly hold that, under section 404, a court must determine whether a prior foreign prosecution and a subsequent Utah prosecution are for the same offense using the Blockburger-Sosa test—whether the two statutory offenses each require proof of a fact that the other does not.
¶ 47 The State urges us to modify the Blockburger-Sosa test by looking not only to the elements of the two criminal offenses, but also to the applicable “unit of prosecution.” Under the State‘s approach, “the laws of different sovereigns cannot fairly be considered the ‘same‘—even if elementally identical in the Blockburger sense—if the unit of prosecution of one is different than the other.” For the reasons discussed below, however, we disagree. Although the relevant units of prosecution may inform the question of what specific conduct the State is seeking to prosecute the defendant for, and whether that conduct is the same as that for which the defendant has already been prosecuted in another jurisdiction, the fact that two criminal statutes identify two different units of prosecution does not mean that the offenses are different under Blockburger-Sosa for purposes of section 404.
¶ 48 “The allowable unit of prosecution for an offense determines whether a perpetrator‘s conduct constitutes one or more violations of that offense.”102 In essence, the unit of prosecution
It is a crime to “intentionally . . . view [ ] child pornography.” If a perpetrator views multiple images of multiple victims over a period of time, how many times has he committed the offense? Perhaps there is one violation for each viewing session, regardless of the number of images or victims. Or maybe there is one violation for each victim or one for each image. The allowable unit of prosecution provided by the offense resolves this question.104
The State argues that, so long as two criminal statutes have different units of prosecution, they can never be considered the “same offense” under section 404.
¶ 49 The problem with this argument is that section 404 looks to whether “a defendant‘s conduct establishes the commission of one or more offenses” that are “the same offense.”105 One statute may employ a different unit of prosecution and thereby measure the conduct necessary to constitute an offense differently than another statute. But even though the statutes measure the relevant conduct differently—such as by measuring the number of victims portrayed in child pornography instead of the number of child pornography images viewed—it may well be the same conduct that is at issue in both prosecutions.
¶ 50 Section 404 requires us to determine whether the defendant has been prosecuted for the same conduct constituting the same offense in another jurisdiction. And while the relevant units of prosecution help inform us as to what specific conduct the defendant was already prosecuted for, they do not answer the question of whether “the subsequent prosecution is for the same offense or offenses.”106 That question is answered by using the Blockburger-Sosa
¶ 51 In Brown v. Ohio, the Supreme Court had to determine whether the prosecution of a lesser-included offense encompassed the same conduct as was subsequently prosecuted.107 The defendant, Mr. Brown, had stolen a car on November 29, 1973, and was caught driving the car nine days later, on December 8, 1973.108 He was first charged with and prosecuted for joyriding—taking or operating a vehicle without the owner‘s consent—to which he pled guilty and was sentenced to thirty days in jail and a $100 fine.109 After serving his sentence for joyriding, he was charged with auto theft—joyriding with the intent to permanently deprive the owner of possession—to which he pled guilty on the condition that the court consider his claim of double jeopardy.110 The court overruled the double jeopardy objection, and the Ohio Court of Appeals affirmed.111 Although the appellate court recognized that the two offenses were the same under Blockburger, it held that the subsequent prosecution was permissible because the prosecutions were based on different acts that occurred on different days—a theft occurring on November 29 and a joyride occurring on December 8.112 The Supreme Court reversed.
¶ 52 The Court held that the court of appeals was correct in concluding that the two offenses were the same under the traditional Blockburger test.113 It disagreed, however, that the conduct underlying the two charges was different.114 Because Ohio law defined the relevant unit of prosecution such that “the theft and operation of a single car [was] a single offense,” the first conviction
¶ 53 Accordingly, section 404 requires courts to analyze two separate issues to determine whether the statute prohibits a subsequent Utah prosecution: first, whether the offenses are the same under Blockburger-Sosa. If not, then section 404‘s protections do not apply. But if so, the court must also determine whether the conduct for which the defendant is being prosecuted in Utah is the same conduct that was at issue in the prior foreign prosecution. To answer this question, the court must look at the relevant units of prosecution, which define the chargeable conduct, and the evidence supporting the prosecutions. If the other jurisdiction‘s unit of prosecution defines the offense in such a way that the evidence relied upon to prove the criminal conduct in that jurisdiction encompasses the evidence necessary to prove the criminal conduct at issue in the Utah prosecution, section 404 prohibits the subsequent Utah prosecution.117
¶ 54 Ultimately, in cases implicating section 404, the question is whether the conduct for which the defendant was prosecuted in the other jurisdiction constitutes the “same offense” both elementally (Blockburger-Sosa) and factually (relevant units of prosecution supported by evidence). When a defendant seeks dismissal under section 404—as does Mr. Robertson—he or she must demonstrate that the elements of the statute have been satisfied. To show that
III. Section 76-1-404 Prohibits the State‘s Subsequent Prosecution of Mr. Robertson
¶ 55 Prior to deciding whether
A. Section 76-1-404 Is a Substantive Statute that Creates an Affirmative Defense to Avoid the Dual Sovereignty Exception to Double Jeopardy, and We Apply It Retroactively to Cases on Direct and Collateral Review
¶ 56 Mr. Robertson asks us to retroactively apply section 404 “as written” in both “this case and all non-final cases.” Though we have established general rules governing the retroactive application of
¶ 57 As discussed below, we have not yet adopted a specific rule governing the retroactive application of new interpretations of substantive criminal statutes. After consulting the approaches taken by federal courts and our sister jurisdictions, we conclude that a new interpretation of a substantive criminal statute will apply retroactively to cases on direct and collateral review. We therefore apply our interpretation of section 404 to Mr. Robertson. We discuss each issue in turn.
¶ 58 Our recent retroactivity jurisprudence clarifies that whether a new rule of criminal law can be retroactively applied turns on whether it is procedural or substantive. In prior cases, we have almost exclusively addressed the retroactive application of “new rules of criminal procedure announced in judicial decisions.”122 As to such rules, we have held that they “apply retroactively to all cases pending on direct review.”123 We have also permitted such rules to apply retroactively to final cases on collateral review under certain circumstances.124 As for new rules of substantive criminal law announced in judicial decisions—such as an interpretation of a
¶ 59 Because Mr. Robertson asks us to retroactively apply the interpretation of section 404 announced in this decision—an interpretation that recognizes the legislature‘s intent to reject the dual sovereignty doctrine and provide broader protections to criminal defendants than we recognized in Franklin126—we must adopt a rule governing the retroactive application of new interpretations of substantive criminal statutes. For as we read section 404, it is not merely a procedural statute that defines the “mode or form of procedure for enforcing substantive rights,”127 but a substantive statute that defines “what acts constitute crimes and what the elements of those crimes are” as well as the availability and definitions of affirmative defenses.128 In particular, it creates an affirmative defense that a criminal defendant—like Mr. Robertson—can invoke as a complete bar to prosecution by the State when he or she has previously been prosecuted for the same offense by a foreign sovereign.
¶ 60 And in articulating a rule of retroactivity governing new rules of substantive criminal law, we are guided by federal precedents and the approaches taken by our sister jurisdictions. Significant in this regard is Bousley v. United States.129 In that case, the United States Supreme Court considered whether to retroactively apply its Bailey v. United States130 interpretation of the “use” prong of
¶ 61 In deciding whether to retroactively apply this interpretation of the statute to a defendant who was before the Court on collateral review, the Bousley Court reasoned that “decisions of [the Supreme Court] holding that a substantive federal criminal statute does not reach certain conduct” are new substantive rules.133 The Court then held that decisions interpreting substantive criminal statutes should be applied retroactively because they demonstrate “a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal.‘”134 For “it is only Congress,” the Court noted, “and not the courts, which can make conduct criminal.”135 Ultimately, it declined to retroactively apply Bailey‘s interpretation to the defendant on collateral review because of a procedural defect in his claim,136 but this case illustrates that the Supreme Court retroactively applies new substantive rules to all cases, including those on collateral review.
¶ 62 State courts have generally adopted two different responses to Bousley. A majority of our sister jurisdictions follow Bousley in granting a new substantive rule—including a new interpretation of a substantive criminal statute—full retroactivity, applying it on direct and collateral review.137 At least one of these states presumptively
¶ 63 We are persuaded by Bousley and the majority of our sister jurisdictions to adopt a rule of full retroactivity—applying to cases on both direct and collateral review—for a new interpretation of a substantive criminal statute. Like the United States Supreme Court, we recognize that “it is only [the legislature], and not the courts, which can make conduct criminal.”140 Accordingly, when our interpretation of a substantive criminal statute deviates from the intent of the legislature—as it did in Franklin—there is “a significant risk that a defendant stands convicted” despite the fact that the legislature intended an affirmative defense to bar the prosecution.141
¶ 64 Thus, we hold that new interpretations of substantive criminal statutes have automatic full retroactivity, subject of course
B. The Record Shows that the State Premised Its Prosecution of Mr. Robertson on Conduct that Constitutes the “Same Offense” for Which He Was Prosecuted Federally
¶ 65 As discussed, Utah Code
¶ 66 As we have explained, determining whether a prior foreign prosecution qualifies as the “same offense” under section 404 requires a two-part analysis: whether the offenses for which an individual was prosecuted are the same under Blockburger-Sosa and, if they are, whether the conduct establishing the offenses is also the same. In this case, there is no dispute that the two relevant statutes are the “same offense” under a Blockburger-Sosa analysis. Mr.
¶ 67 We must next determine whether the prosecutions were based on the same conduct. If they are not, then the State is free to prosecute based on any previously uncharged criminal conduct. This analysis, as we described above, is informed by the relevant units of prosecution. Under federal law, the unit of prosecution “is each ‘material,’ or medium, containing an image of child pornography.”148 The unit of prosecution under Utah law is “each minor depicted in the child pornography” and “each time the same minor is depicted in different child pornography.”149 With these units of prosecution in mind, we must determine whether the evidence supporting the prosecuted criminal conduct in the federal case encompasses the evidence supporting the prosecuted criminal conduct in the Utah case.
¶ 68 The State argues that because Mr. Robertson was charged with only one count of violating the federal statute, he was federally prosecuted only for possessing one medium containing child pornography—the federal unit of prosecution. The State claims that the medium that served as the basis for the federal prosecution was the Dell computer because the Utah agent provided the federal
¶ 69 The one-count federal indictment returned by the grand jury charged Mr. Robertson with knowing possession of multiple media—“computer disks and other materials containing images of child pornography.” The forfeiture notice included with the indictment stated that all of the media—not just the one computer—were used “to commit and to facilitate the commission of [the] violation” of the federal child pornography statute. Thus, though the federal indictment could have rested solely on Mr. Robertson‘s possession of one medium containing child pornography, it appears that the prosecution was based on his possession of multiple media, with no distinction made between any of the various media. Indeed, the trial court in the Utah case specifically determined that this was the case, finding that the Utah prosecution—which charged Mr. Robertson with multiple counts of possession of child pornography based on images found on both computers—was “[b]ased on the same body of evidence” as the previous federal prosecution. Because the federal prosecution was based on evidence of Mr. Robertson‘s possession of all the media containing child pornography, it encompassed the evidence of the conduct that was at issue in the Utah prosecution. Therefore, the two prosecutions were for the same conduct.
¶ 70 In sum, the federal and Utah criminal statutes constitute the “same offense” under Blockburger-Sosa. The evidence of criminal conduct supporting the federal prosecution encompassed the evidence of criminal conduct used to support the subsequent Utah prosecution. Thus, Mr. Robertson was prosecuted for the same conduct, constituting the “same offense,” twice. Accordingly,
Conclusion
¶ 71 Our conclusion in State v. Franklin that Utah Code