Opinion
Docket No. 162377.
Submitted January 12, 1995, at Grand Rapids.
Decided April 21, 1995, at 9:55 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.
Cynthia G. Carowitz, for the defendant on appeal.
Before: MacKENZIE, P.J., and GRIFFIN and NEFF, JJ.
Defendant originally was charged with jail escape, MCL 750.197(2); MSA 28.394(2), and forgery, MCL 750.248; MSA 28.445. The escape charge was subsequently dismissed, and defendant pleaded guilty of attempted forgery, MCL 750.92; MSA 28.287. He was sentenced to 2 1/2 to 5 years' imprisonment and now appeals as of right. We affirm.
The underlying facts are undisputed. Defendant escaped from the Kent County Jail, where he was housed awaiting sentencing on a federal bank robbery conviction. Defendant accomplished the escape by assuming the identity of his cellmate, who was then about to be released on bond, and forging a signature on the cellmate's state bailbond form. He pleaded guilty of federal escape charges, 18 U.S.C. § 751(a), and on July 17, 1992, was sentenced in federal district court to fifty months' incarceration. On July 27, 1992, defendant was charged with escape and forgery under Michigan law. The trial court granted defendant's motion to dismiss the Michigan escape charge on the ground of double jeopardy, but declined to dismiss the Michigan forgery charge. The parties agree that the federal government could not have brought forgery charges, apparently because a state bail bond was involved.
The sole issue on appeal is whether defendant's Michigan forgery conviction was barred by the Double Jeopardy Clause of the Michigan Constitution, Const 1963, art 1, § 15, or was permissible under the dual-sovereignty doctrine. That doctrine, as originally set forth in Abbate v United States, 359 U.S. 187; 79 S Ct 666; 3 L Ed 2d 729 (1959), and Bartkus v Illinois, 359 U.S. 121; 79 S Ct 676; 3 L Ed 2d 684 (1959), allows successive prosecutions by the state and federal governments for the same act. The parties agree that the controlling guidelines for resolving the question were established by our Supreme Court in People v Cooper, 398 Mich. 450; 247 N.W.2d 866 (1976). Cooper was explained by the Court in People v Gay, 407 Mich. 681, 693-695; 289 N.W.2d 651 (1980):
This Court broke with Federal precedent and held in People v Cooper that limitations did exist under the Michigan Constitution upon the state's ability to prosecute a defendant in a state court following a conviction in Federal court for crimes arising out of the same acts. 389 Mich. 457, 460-461. We recognized in Cooper that state criminal justice systems must retain their strength and independence. This principle of dual sovereignty has long maintained ascendance in the American system of justice. . . .
However, we found that emerging Federal trends in recent years and the dictates of our own Constitution required us to impose limits on what dual sovereignty would permit. We held that where a criminal act involves the legitimate interests of both the state and Federal governments and the Federal criminal prosecution cannot adequately represent the state's independent interests, then the state in those rare instances is justified in protecting its interest by prosecuting the defendant, even after conviction or acquittal in Federal court. 398 Mich. 459-460. Dual prosecution of these differing interests violates neither the Federal nor Michigan Constitution. . . .
On the other hand, this Court also recognized the fundamental need to safeguard defendants' constitutional rights. We therefore prohibited dual prosecution where the interests of the state are not "substantially different." People v Cooper, supra, 461. . . .
* * *
Cooper represents a strong and uncompromising statement by this Court that a defendant's right not to be twice tried in Federal and State court for the same criminal act will be jealously guarded except in extreme cases where Federal laws are framed to protect substantially different social interests. 398 Mich. 459. Cooper makes clear that as a firm rule dual prosecution ordinarily will not be tolerated in Michigan. It is only in the rare instance where the social interests of the state are not addressed in substance by the Federal statute that a second prosecution will be allowed.
To assist courts in determining whether a former federal prosecution satisfies the state's interest, the Cooper Court suggested three guidelines: (1) whether the maximum penalties of the two jurisdictions' statutes are greatly disparate, (2) whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully the other jurisdiction's interests in securing a conviction, and (3) whether the differences in the statutes are substantive, as well as jurisdictional. 398 Mich. 461. See also People v Formicola, 407 Mich. 293, 298; 284 N.W.2d 334 (1979); People v Morillo, 90 Mich. App. 655, 660-665; 282 N.W.2d 434 (1979); People v Tyler, 100 Mich. App. 782, 788-790; 300 N.W.2d 411 (1980); People v Bero, 168 Mich. App. 545, 558-559; 425 N.W.2d 138 (1988); People v Mezy, 208 Mich. App. 545; 528 N.W.2d 783 (1995).
Examination of the second and third factors in the context of this case leads to the conclusion that the interests being protected by the State of Michigan in securing defendant's forgery conviction are substantially different from the federal government's interests in obtaining his escape conviction. In this regard, it is useful to compare the state and federal statutes at issue. See Formicola, supra, pp 299-300. The federal escape statute, 18 U.S.C. § 751(a), provides in relevant part:
Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General . . . shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both. . . .
The Michigan forgery statute, MCL 750.248; MSA 28.445, provides:
Any person who shall falsely make, alter, forge, or counterfeit any . . . bond . . . with intent to injure or defraud any person, shall be guilty of a felony, punishable by imprisonment for not more that 14 years.
Clearly, these statutes are substantively different. The escape statute is designed to protect the federal government's interest in preventing inmates from absenting themselves from custody without permission. The forgery statute, on the other hand, addresses the state's interest in preventing any person from defrauding another by means of a false instrument.
Moreover, defendant's federal escape conviction does not vindicate the state's interest in securing a forgery conviction. Under the federal escape statute, the means used to accomplish the escape — here, forgery — are wholly immaterial. The escape conviction thus does not protect the state's interest in preventing fraudulent instruments. Further, this is not a case where the federal government could have taken steps to protect the state's interest but failed to do so; federal prosecution for forgery of the state bond was impossible.
Because the federal and state interests at issue in this case are "substantially different," Cooper, supra, Const 1963, art 1, § 15 does not prohibit defendant's Michigan prosecution for forgery after his federal prosecution for escape. Instead, under the dual-sovereignty doctrine, as qualified by Cooper, defendant's state court prosecution was permitted.
Affirmed.