Lead Opinion
James V. Sullivan was indicted by a Fulton County grand jury in 1998 on charges of malice murder, felony murder, aggravated assault and burglary arising out of the 1987 shooting death of his wife, Lita Sullivan.
1. OCGA § 16-1-8 (c) provides that
[a] prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.
The plain language of OCGA § 16-1-8 (c) creates an unambiguous threshold question: was the prior Federal prosecution for a crime within the concurrent jurisdiction of the State? When that question is answered in the negative, OCGA § 16-1-8 (c) presents no bar to a subsequent State prosecution. Unless the former Federal prosecution was for a crime which is within the concurrent jurisdiction of this State, OCGA § 16-1-8 (c) is inapplicable regardless of any overlap in the accused’s conduct that is the subject matter of the two prosecutions.
In determining what “concurrent jurisdiction” means in the context of OCGA § 16-1-8 (c), we look to the unambiguous statutory language and interpret it so as to give effect to the plain and unequivocal intent of the Legislature. See generally Abdulkadir v. State,
Contrary to the dissent’s position, nothing in our recognition of the threshold “concurrent jurisdiction” requirement renders meaningless the three-step analysis created by the plain and unambiguous language of OCGA § 16-1-8 (c). This can be easily demonstrated by using the dissent’s own hypothesis, which assumes the Legislature had enacted a statute comparable to 18 USC § 1952A. Scenario One: a defendant uses a telephone to arrange for the commission of the murder of victim A. If the defendant is prosecuted in the district court for this crime and the prosecution results in the defendant’s conviction or acquittal, OCGA § 16-1-8 (c) would bar a subsequent State prosecution of the defendant for using a telephone to arrange for victim A’s murder because the State prosecution would be for a crime within the State’s concurrent jurisdiction, arising out of the same conduct, and neither prosecution required proof of a fact not required in the other prosecution. Scenario Two: a defendant uses the telephone to arrange for the
2. Applying the correct analysis of OCGA § 16-1-8 (c), we turn to the threshold issue in this case, namely, whether the 1992 Federal prosecution of Sullivan for violating 18 USC § 1952A (now codified as 18 USC § 1958) was for a “crime which is within the concurrent jurisdiction of this state.” To make that determination, it is necessary to examine 18 USC § 1952A and compare it to the Criminal Code of Georgia, OCGA § 16-1-1 et seq.
18 USC § 1952A, captioned “[u]se of interstate commerce facilities in the commission of murder-for-hire,” was codified in the racketeering chapter of Title 18 (Crimes and Criminal Procedure) of the United States Code and, at the time of Sullivan’s prosecution in 1992, provided that
[wjhoever travels in or causes another ... to travel in interstate or foreign commerce, or uses or causes another... to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, . . . and if death results, shall be punished by death or life imprisonment. . . .6
Id. at (a). The statute defines a “facility of interstate commerce” as including “means of . . . communication.” Id. at (b) (2). Sullivan’s Federal indictment alleged in four counts that he violated this statute by using or causing another to use a telephone to place long distance calls between Atlanta and Palm Beach, Florida, with the intent that the murder of Lita Sullivan be committed in exchange for a promise to pay something of pecuniary value.
After Sullivan’s acquittal on these charges in 1992, the State indicted him in 1998 on charges of malice murder, felony murder predicated upon aggravated assault, felony murder predicated upon burglary, aggravated assault and burglary. The State did not
A review of the Criminal Code of Georgia reveals that it is unlawful to solicit murder, see OCGA § 16-4-7 (a); to conspire to commit murder, see OCGA § 16-4-8; to attempt to commit murder, see OCGA § 16-4-1; to commit murder itself, OCGA § 16-5-1; and to be a party to the crime of murder, see OCGA § 16-2-20, including situations where a party “[i]ntentionally . . . hires ... or procures another to commit the crime.” Id. at (4). However, nothing in the Criminal Code of Georgia makes it a crime to use or cause another to use a telephone or other communication facility with the intent to commit or cause the commission of any act constituting murder.
It is a crime in Georgia to use a telephone to commit or facilitate the commission of a felony, but only for those felonies involving controlled substances under Chapter 13 of our Criminal Code. OCGA § 16-13-32.3 (a) provides that the use of a “communication facility,” e.g., a telephone,
Although the Legislature enacted OCGA § 16-13-32.3 as the Georgia counterpart to 21 USC § 843 (b), the Federal crime of using a telephone to arrange for the commission of a drug crime, see Hunt v. State,
Thus, in this case the threshold question posed by OCGA § 16-1-8 (c) must be answered in the negative, rendering it irrelevant how Sullivan’s Federal and State prosecutions would fare under the analysis set forth in the rest of the statute. Accordingly, we hold that the 1992 Federal prosecution of Sullivan cannot serve to bar the State’s prosecution of Sullivan for the crimes of malice murder, felony murder, aggravated assault and burglary.
3. We decline Sullivan’s suggestion that we abandon our adherence to the long-standing doctrine of dual sovereignty. See, e.g., Satterfield v. State,
4. We find no error in the trial court’s ruling that collateral estoppel does not apply because the “same parties” are not attempting to relitigate facts necessarily found in the earlier prosecution. See generally Simmons v. State,
Judgment affirmed.
Notes
Sullivan and the victim were involved in contentious divorce proceedings. Sullivan was very wealthy and the victim was challenging the post-nuptial agreement she had signed. In January 1987, Sullivan was living in Palm Springs, Florida and the victim was living in Atlanta. On January 16, 1987, the morning of a scheduled hearing on the divorce, the victim opened her front door to someone bearing flowers bought at a local florist shop and was shot to death in her foyer. Sullivan was at his Florida home at the time. Motive and circumstantial evidence, including telephone calls between Sullivan’s home and an Atlanta motel room before the murder and calls to an 1-85 rest stop shortly after the murder, pointed to Sullivan. Evidence from a witness who first came forward in 1998 led to Sullivan’s indictment in this case.
It is only where concurrent jurisdiction exists that the courts must then turn to the next step in the statutory analysis, namely, whether the Federal prosecution resulted in a conviction or an acquittal and, if it did so, whether the State’s prosecution was for the same conduct. As plainly expressed by the language in OCGA § 16-1-8 (c), the accused’s conduct comes into issue if, and only if, the former Federal prosecution was for a crime within this State’s concurrent jurisdiction. Should the court determine that the State’s prosecution was for the same conduct, subsection (c) would bar the prosecution unless “each prosecution require [d] proof of a fact not required in the other prosecution” or unless the crime “was not consummated when the former trial began.” Id.
See, e.g., City of Cave Spring v. Mason,
A contrary interpretation is not supported, by our earlier cases interpreting OCGA § 16-1-8 (c) because the existence of concurrent jurisdiction was neither raised nor discussed therein. See Torres v. State,
Rather, it is the dissent’s interpretation that renders utterly unnecessary and meaningless a part of the statute, by ignoring the “concurrent jurisdiction” threshold requirement plainly set forth in the statute.
The current version of 18 USC § 1958, as amended in December 2004, changed “any facility in interstate” commerce to “any facility o/interstate” commerce. This change indicates the intent of Congress to favor the interpretation of the statute by the Fifth and Seventh Circuit Courts of Appeal over that given it by the Eleventh and Sixth Circuits, thereby authorizing Federal prosecution in situations involving only intrastate use of a facility of interstate commerce without the presence in the case of any actual interstate criminal activity. See Murphy, Boundaries of its Commerce Power with an Amendment to the Federal Murder-for-Hire Statute, 13 Wm. & Mary Bill of Rts. J. 1349 (2005).
We note that the record fails to contain a certified copy of Sullivan’s Federal prosecution, but the State raised no objection and has affirmatively acknowledged the facts surrounding that earlier prosecution.
OCGA § 16-13-32.3 (a) defines “communication facility solely for purposes of that Code section as “any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, computer or computer network, and all other means of communication.”
The dissent completely ignores the Legislature’s enactment of OCGA § 16-13-32.3 (a), and in light of that statute it is difficult to fathom the dissent’s claim that the Legislature “would never enact” a statutory counterpart to 18 USC § 1952A to make it a crime in Georgia to use a telephone or other communication facility to arrange for the commission of murder-for-hire.
It is for the legislature, not the courts, to identify conduct that warrants treatment as a crime and affix the punishment for that conduct. Wood v. State,
See 18 USC § 3231 (“[n]othing in this title shall he held to take away or impair the jurisdiction of the courts of the several States under the laws thereof’); United States v. Marek,
Dissenting Opinion
dissenting.
The majority opinion is wrong. I therefore dissent.
Before 1968, the State of Georgia, under the dual sovereignty doctrine, could prosecute a defendant even though the federal government had already prosecuted him for what is considered the “same offense” for double jeopardy purposes. In 1968, however, the General Assembly enacted OCGA§ 16-1-8 (c), intending to foreclose the State’s ability to try a defendant after his acquittal or conviction of the “same offense” in federal court.
A. THE INTERPRETATION OF OCGA § 16-1-8 (c)
1. Although the majority attempts to interpret OCGA § 16-1-8 (c) without reference to its legal underpinnings, some discussion of the constitutional backdrop to the statute is necessary for an understanding of the statute’s purpose. The Double Jeopardy Clause of the Fifth Amendment to the U. S. Constitution and Article I, Section I, Paragraph XVIII of the Georgia Constitution provide that no person shall be subject for the same
It is well-settled, however, that under the dual sovereignty doctrine successive prosecutions by two separate sovereigns for the same offense do not violate the Double Jeopardy Clause of the Constitution.
2. The General Assembly enacted OCGA§ 16-1-8 (c), the text of which is recited in the majority opinion, in 1968.
is a new feature in the law of Georgia, in which it has long been held that double jeopardy provisions of the Constitution do not prohibit multiple prosecution[s] for the same act if that act constituted an offense against more than one sovereign. Subsection (c) results in protection of the accused against prosecution by the State of Georgia if his act had previously resulted in prosecution by the Federal Government on the same terms as though the prior prosecution had been by the State of Georgia.23
Clearly, the General Assembly intended that OCGA § 16-1-8 (c) function as an exception to the dual sovereignty doctrine by barring a state prosecution if the accused had been previously convicted or acquitted of the “same act” in the federal courts.
3. The majority’s unprecedented interpretation of OCGA § 16-1-8 (c) violates basic rules of statutory construction. “The cardinal rule in construing a legislative act, is ‘ “to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” ’ ”
In the present case, there is a clear statement of legislative intent. The Committee Notes state that OCGA § 16-1-8 (c) was intended to “result [ ] in protection of the accused against prosecution by the State of Georgia if his act had previously resulted in prosecution by the Federal Government on the same terms as though the prior prosecution had been by the State of Georgia.”
4. Another rule of statutory construction is that “ ‘[l]anguage in one part of the statute must be construed in light of the legislature’s intent as found in the whole statute.’ [Cit.]”
As recognized by the majority,
Under the majority’s construction, if Georgia does not have a crime that mirrors the federal crime, the last two parts of the statute are inapplicable, and the defendant may always be tried in Georgia.
Moreover, under the majority’s construction, if Georgia does have a crime that mirrors the federal crime, the last two parts of the statute have no application, as the inquiries in the last two parts will be dictated by the answer to the first part, and the answer to the first part of the statute will always lead to the conclusion that the defendant may not be tried in Georgia. The majority’s concurrent jurisdiction analysis therefore makes most of OCGA § 16-1-8 (c) irrelevant. But if
To illustrate this latter point, assume that Georgia has a crime of using a telephone or communication facility to commit murder and that a defendant has been acquitted in federal district court of using a telephone to commit murder-for-hire. The issue is whether OCGÁ § 16-1-8 (c) bars his prosecution in Georgia for malice murder. Under the majority’s analysis, the first part of OCGA § 16-1-8 (c) is satisfied, as the Georgia crime mirrors the federal crime. The second part of the statute, however, is meaningless, as the answer to its inquiry (is the state prosecution for the “same conduct” that was the subject of the federal prosecution) will always be answered in the positive, as the Georgia crime of using a telephone or communication facility to commit murder will, of necessity, involve the “same conduct” as the identical federal crime. Similarly, the third part of the statute is rendered meaningless. Because the Georgia crime of using a telephone or communication facility to commit murder will mirror the federal crime, the third part of the statute (whether “each prosecution requires proof of a fact not required in the other prosecution”) must, of necessity, be answered in the negative. Thus, under the majority’s construction, the answer to the first part of the statute dictates the answer to the last two parts and leads to the conclusion that the defendant may not be tried in Georgia.
Accordingly, the majority has essentially rewritten the statute as follows: “A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state.”
Moreover, adopting the majority’s narrow concurrent jurisdiction analysis would render the entire statute unnecessary. The federal government, when criminalizing conduct that is generally intrastate, must connect the harm to interstate commerce in order for the statute to be constitutional.
5. Another important rule of statutory construction is that criminal statutes must be construed strictly against the State,
6. The majority’s interpretation — that there is no “concurrent jurisdiction” unless a Georgia statute specifically contains all the elements required in the federal charge — is not logical and would lead to absurd results. For example, if a Georgia resident receives money to kill his Georgia neighbor and walks next door to his neighbor’s house and kills him, then that is malice murder under Georgia law and there is no federal jurisdiction to charge him with murder-for-hire. If a resident of Alabama receives money to kill his Georgia neighbor and walks next door, across the state line into Georgia and kills the neighbor, then that is malice murder in Georgia and murder-for-hire under federal law.
In another example, if the majority’s suggested state charge of “Using the Telephone to Commit Murder-for-Hire” were adopted by the General Assembly, and a defendant was acquitted of federal murder-for-hire, the State of Georgia would be free to prosecute the defendant for malice murder under the majority’s interpretation of OCGA § 16-1-8 (c). A state prosecutor thus would never charge a defendant with Using the Telephone to Commit Murder-for-Hire,
B. THE PROPER ANALYSIS OF SULLIVAN’S PROSECUTION
7. Having determined that the majority’s interpretation of OCGA § 16-1-8 (c) is wrong, I will now undertake to determine whether Sullivan’s prosecution in the State of Georgia is barred under the proper interpretation of that statute.
Sullivan is charged in state court with malice murder, felony murder, two counts of aggravated assault, and burglary. In a 1992 jury trial, a federal district court judge directed a verdict of acquittal on four counts of violating 18 USC § 1958, the federal murder-for-hire statute, arising from the same conduct as the state charges.
I will initially focus on the malice murder charge. In this regard, the chief issue for resolution is whether the federal murder-for-hire charge required the prosecutor to prove the victim’s death as an element of the offense, because, in denying Sullivan’s motion to bar his prosecution under OCGA § 16-1-8 (c), the state trial court found that the victim’s death was not a required element of murder-for-hire while her death is a required element of the state charge of malice murder.
[w]hoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with the intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title or imprisoned for not more than twenty years, or both; and if death results,shall be punished by death or life imprisonment, or shall be fined not more than $250,000, or both. 44
The Georgia statute on malice murder, OCGA § 16-5-1 (a), specifies,
A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.
OCGA § 16-5-1 further defines malice as “that deliberate intention unlawfully to take the life of another human being. . . .”
The few Georgia cases on OCGA § 16-1-8 (c) involved the proper analysis of the federal and state prosecutions to determine if they each required proof of a fact not required in the other prosecution such that the statute would operate to bar the state prosecution.
[w]hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall —
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury . .. results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.
Torres pled guilty to carjacking before his state trial and then filed a plea of former jeopardy, claiming that OCGA § 16-1-8 (c) barred his state prosecution. This Court determined that the federal conviction required proof that the van had been transported in interstate commerce, something that would not be required for any of the state charges.
Approximately five months after this Court issued the Torres decision, the United States Supreme Court decided Jones v. United States,
In light of Jones, I am compelled to conclude that a victim’s death alleged in the murder-for-hire statute, which subjects a defendant to increased punishment, is an element of the offense. I am also compelled to conclude that Sullivan was charged in 1992 by the federal government with the victim’s death as well as the intent element of the state charge of malice murder. The most relevant count of his 1992 federal indictment charged:
On or about January 16, 1987, in the Northern District of Georgia, the defendant, JAMES V. SULLIVAN, did knowingly and intentionally cause another to use an interstate communication facility, to wit: a long distance telephone call between Suwanee, Georgia and Palm Beach, Florida, with the intent that the murder of Lita McClinton Sullivan be committed in violation of the laws of the State of Georgia as consideration for an agreement and promise to pay a thing of pecuniary value, and as consideration for the receipt of a thing of pecuniary value, said offense resulting in the death of Lita McClinton Sullivan, in violation of Title 18, United States Code, Section 1952A.56
(Emphasis supplied.) The trial court correctly found that the federal murder-for-hire charge required proof of a fact not required to be proved in the state malice murder charge, use of an interstate communication facility. However, the trial court erred by finding that the victim’s death was not an element of the offense that needed to be proved in the federal charge, because it was an element of the murder-for-hire charge and Sullivan was expressly charged with causing her death.
The State should also be barred from prosecuting Sullivan on the aggravated assault charges, because, based upon the elements of the offense of aggravated assault and the aggravated assault charges in Sullivan’s state court indictment, they are lesser-included offenses of his malice murder charge.
8. The majority’s position on OCGA § 16-1-8 (c) is contrary to plain legislative intent, violates numerous rules of statutory construction, and renders the statute meaningless. The majority’s argument — that there can be no “concurrent jurisdiction” within the meaning of OCGA § 16-1-8 (c) unless the General Assembly enacts a criminal statute that mirrors the federal charge — means that the General Assembly would have enacted a double jeopardy statute that contravenes basic double jeopardy principles and bars virtually no prosecutions. The legislature clearly intended that OCGA § 16-1-8 (c) be an exception to the dual sovereignty doctrine, and that it bar a state prosecution after a federal conviction or acquittal for what is the “same offense” under basic double jeopardy law. As a court, we must in every case apply the laws as they are enacted. Regardless of the result, the purpose of a statute is not an obstacle for us to overcome. Applying OCGA § 16-1-8 (c) to the facts of this case should bar Sullivan’s state court prosecution for malice murder.
For the foregoing reasons, I dissent to the majority opinion.
I am authorized to state that Justice Hines and Justice Melton join in this dissent.
See Ga. Laws 1968, pp. 1249, 1267-1269, enacting then Code Ann. § 26-507 (c), the predecessor to OCGA § 16-1-8 (c). The provision has not changed since it was enacted in 1968.
Brown v. Ohio,
Perkinson,
Perkinson,
See Heath v. Alabama,
Id.
Id.
See id. at 89; United States v. Wheeler,
“Concurrent jurisdiction” in the double jeopardy context means that more than one sovereign has criminal jurisdiction over a defendant who has committed the “same offense.” See Heath v. Alabama,
See footnote 12, supra.
Dorsey v. State,
See id. at 878. See also State v. Estevez,
OCGA § 16-1-8 (c). Not coincidentally, this is the test to determine if two offenses are the “same offense” for double jeopardy purposes: whether each offense requires proof of a fact (i.e., an element) that the other does not. See Brown,
Carringer v. Rodgers,
See Dorsey,
Haugen v. Henry County,
State v. English,
See Division 1, page 894, of the majority opinion.
Of course, other aspects of the statute, not relevant to the majority’s construction, will still apply, namely, whether the defendant was acquitted or convicted in federal court and whether the state crime was “not consummated” when the federal trial began.
See Torres v. State,
See United States v. Lopez,
See 18 USC §§ 1958; 2119.
See Ballinger,
Hughes v. State,
State v. Langlands,
In addition, although a number of sister states have dual sovereignty doctrine exception statutes, the majority fails to cite any that have employed its reasoning and conveniently ignores another state’s statute that is worded the same as OCGA § 16-1-8 (c). See Kan. Stat. Ann. § 21-3108 (3) (a) (“A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States or in a court of general jurisdiction of a sister state .. . for a crime which is within the concurrent jurisdiction of this state, if such former prosecution . . . [rjesulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution. ...”). Perhaps this is because Kansas has not employed the majority’s strained statutory analysis. In Kansas v. Kenwood,
See 18 USC § 1958 (prohibiting interstate travel to commit murder-for-hire).
See Freeman v. State,
United. States v. Sullivan, 809 FSupp. 934 (N.D. Ga. 1992).
The State clearly has concurrent jurisdiction over Georgia crimes that arose from the conduct of the accused that led to the federal prosecution, see p. 902, n. 21 and p. 906, n. 38, of this dissent, thus satisfying the first part of OCGA § 16-1-8 (c). Moreover, Sullivan was acquitted in federal court, and the state prosecution is for the same conduct as the federal prosecution, thus satisfying the second part of OCGA § 16-1-8 (c). Thus, the only part of OCGA § 16-1-8 (c) that is at issue is whether “each prosecution requirefd] proof of a fact not required in the other prosecution.”
See Torres v. State,
18 USC § 1958 (a). There have been some minor changes to the text of this statute since Sullivan’s federal prosecution. However, we use the current statute in this decision because none of the changes altered the statute in any way relevant to our analysis.
OCGA § 16-5-1 (b). See also Tessmer v. State,
See Dorsey,
Id. at 79.
Id. at 80.
Id. See also OCGA §§ 16-5-40 (a); 16-8-41 (a).
Torres,
See United States v. Rivera-Gomez,
See Torres,
Id. at 239.
18 USC § 1952A was redesignated 18 USC § 1958 in 1988.
See Jones,
See Dorsey,
See Brown,
See Brown,
See OCGA § 16-7-1 (a); Cash v. State,
See id.; Henry v. State,