Dill v. State, No. 59A01-1610-CR-2449, __ N.E.3d __ (Ind. Ct. App., Aug. 22, 2017).

Shepard, Senior Judge

Indiana has a statute that bars charging a defendant in state court for the same conduct covered by a federal prosecution, even when the federal and state constitutional provisions on double jeopardy would permit doing so.

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The State charged Dill with one count of Level 2 felony dealing in methamphetamine, one count of Level 6 felony maintaining a common nuisance, and Class B misdemeanor possession of marijuana.

About a month later, federal authorities indicted Dill and thirteen codefendants. Dill pleaded guilty to the conspiracy charge and received a sixty month executed sentence followed by three years of supervised release. Dill then moved to dismiss the state court charges, contending that further prosecution would violate the statute on double jeopardy. The trial court heard argument and denied the motion.

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The constitutions of Indiana and of the United States both protect citizens against being placed twice in jeopardy for the same criminal offense. Still, as Indiana and the United States constitute “dual sovereigns,” each of those two governments may prosecute a citizen for the same criminal act. Haggard v. State, 445 N.E.2d 969 (Ind. 1983) …

Nevertheless, an Indiana statute bars certain state prosecutions that are in the nature of double jeopardy:

In a case in which the alleged conduct constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction, a former prosecution in any other jurisdiction is a bar to a subsequent prosecution for the same conduct in Indiana, if the former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.

Ind. Code § 35-41-4-5 (1977). Unlike the analysis used for double jeopardy challenges brought under the state and federal constitutions, a challenge brought under this statute requires examination of whether the charges brought in state and federal court involve the same conduct. State v. Allen, 646 N.E.2d 965 (Ind. Ct. App. 1995), trans. denied.

The count of the federal indictment to which Dill pleaded guilty—Conspiracy to Distribute and to Possess with Intent to Distribute Methamphetamine–– … ….

Because the alleged act was a conspiracy, the manner in which the conspiracy as carried out and the overt acts in furtherance of the conspiracy were also set forth in the charges. …

In Smith v. State, 993 N.E.2d 1185 (Ind. Ct. App. 2013), trans. denied, a panel of this court considered whether there was a violation of the double jeopardy statute. Smith and his co-defendant faced federal charges for an overarching Ponzi scheme, defrauding some seventy-two investors from at least three states, including Indiana, through representations that Smith and his co-defendant were properly licensed day traders. The federal charges alleged conspiracy to commit mail and wire fraud, obstruction, and tax evasion.

On appeal from the denial of a motion to dismiss state court charges, a majority of the panel concluded that for some of the charges the conduct was not the same for purposes of statutory double jeopardy. …

The decision in State v. Allen, 646 N.E.2d 965 (Ind. Ct. App. 1995), trans. denied, reflects this same approach, comparing the statutory charges brought and the evidence in support of the allegations. The panel agreed that the state and federal charges of conspiracy rested on the same sort of conduct, with the federal indictment resting on acts covering a greater period than the state indictment. …

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Here, the federal charges to which Dill pleaded guilty were for her involvement in a conspiracy to possess and distribute methamphetamine. …

In contrast, the state charge alleged that on March 3, 2015, Dill did knowingly or intentionally possess with the intention to deliver methamphetamine … We conclude that the criminal statutes invoked and the facts supporting each were sufficiently separate that two prosecutions did not constitute the “same conduct.”

In light of the foregoing, we affirm the trial court’s decision.

Affirmed.

Najam, J., and Kirsch, J., concur.

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