How Double Jeopardy Works in New York and Federal Criminal Cases
The Fifth Amendment protects your right to be tried once, and only once, for any crime. Regardless of whether you’re convicted or acquitted, the government only gets one shot to prosecute you.
However, there have always been exceptions to this rule. Here’s what you need to know about how double jeopardy works in New York and federal criminal cases.
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The Mistrial Exception
A judge may declare a mistrial when a jury cannot reach a verdict, when juror misconduct exists, under extraordinary circumstances, or when jurors mislead the defense or the prosecution during voir dire. A judge may also declare a mistrial when they determine prosecutors are engaging in misconduct or when either side makes prejudicial statements.
After a mistrial, the prosecutor will generally seek a new trial. A mistrial is not an acquittal. It’s a procedural remedy. It allows a trial to proceed anew with proper jury selection and proper behavior so that the trial is above-board and as fair as the law can make it.
The Civil Trial Exception
You’re probably familiar with the famous O.J. Simpson case. Simpson was arrested for the double murder of Nicole Brown Simpson and Ronald Goldman.
A jury acquitted Simpson of all criminal charges on October 3, 1995. In 1997, a civil court found Simpson liable for wrongful death in the double murder. Courts ordered him to pay $33.5 million in damages to the Brown and Goldman families.
Many sex abuse victims find they get better results in civil trials than they do in criminal trials.
In part, this is because the standard of proof is different. A criminal charge must be proven “beyond a reasonable doubt.” A person can be held liable for damages based on a “preponderance of the evidence,” that is, the events in question were more likely to have happened than not.
Double jeopardy protects you against state harassment. It does not prevent a private citizen or organization from seeking damages in response to the same events that prompted the criminal trial.
Dual Sovereignty
In the 2019 Supreme Court case Gamble v. United States, defendant Gamble challenged a federal indictment because he’d already pled guilty to firearms charges under Alabama statutes.
The Eleventh Circuit and the Supreme Court affirmed the denial of his motion, invoking the dual-sovereignty doctrine.
Under this doctrine, two offenses are “not the same offense” for double jeopardy purposes if “prosecuted by different sovereigns.”
In his opinion, Justice Alito wrote that dual sovereignty is not an “exception” to double jeopardy. Instead, he believes it “follows from the text that defines the right in the first place.”
In the dissent, Justice Gorsuch wrote: “So if all the might of one ‘sovereign’ cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this “separate sovereigns exception” to the bar against double jeopardy finds no meaningful support in the text of the Constitution.”
The NYCLU felt this ruling undermined double jeopardy provisions.
Nevertheless, the dual sovereignty provision continues to exist, which means the state of New York and the federal government may try to try you for the same crime if they so choose.
Accomplice Liability and Its Double Jeopardy Implications
You don’t have to commit a criminal offense directly to find yourself in the crosshairs of a federal investigation. If you assisted anyone in committing any unlawful activity, you could be charged as an accomplice.
Worse, under federal law, an accomplice is punishable as a principle. You won’t necessarily face a lighter sentence just because you were only accused of helping out. You’d face the same sentence as the person who committed the primary crime.
What Is Accomplice Liability in a Federal Case
An accomplice is distinct from an “aider and abetter,” who is not punishable as a principal. Aiding and abetting is receiving, relieving, comforting, or assisting an offender in hindering or preventing apprehension, trial, or punishment. It’s also known as becoming an “accessory after the fact.”
It is also distinct from the crime of conspiracy, which involves having a plan or an agreement to commit a crime, versus an accomplice situation where you took action on impulse or in the moment, with no extant pre-existing agreement to work from.
To charge you as an accomplice, the government must prove the following:
- You took affirmative action to aid the underlying offense, offering assistance in words, acts, encouragement, support, or presence.
- You took that action with the intent of facilitating the crime. If your friend shows up at your door and asks you to do something, and you have no idea that it’s anything other than a routine favor, for example, you would not be guilty of this crime.
While intent is difficult to prove or disprove, our office has successfully used a lack of intention to defend against accomplice charges in the past. Simple knowledge of the crime isn’t always enough to prove intent, but the knowledge that a crime is about to be committed may be enough.
Accomplice liability is a complex area of criminal law that has been subject to a great deal of debate and back-and-forth over the course of numerous criminal cases. If you’re being charged as an accomplice, you cannot afford to read a single blog post and decide you are in the clear.
Deferred Prosecution and Double Jeopardy Risks
Deferred prosecution can be one of the better case outcomes either at the federal or state level, depending on what you’ve been accused of, how much evidence the prosecution has, and what your alternatives are.
Under a deferred prosecution agreement, the prosecutor agrees not to pursue a conviction if you will agree to certain conditions. These could include probation, community service, and promises not to break the law.
In addition, unless you plead guilty as a condition of the deal, this event cannot be used against you in future cases or go on your criminal record, since you were never found guilty in a court of law. Of course, you will want to be very careful as you consider the terms of said agreement to see if it will require such a plea, which essentially turns it into a plea bargain.
A DPA will always involve consequences. There is always some sort of concession involved.
For example, Representative Cody Henson of North Carolina received such an agreement in regard to domestic violence charges. He agreed to attend abuse counseling, a mental health evaluation, and a substance misuse assessment. He also went on probation, during which time he is not allowed access to firearms, and must abide by a protective order his ex has obtained against him.
A prosecutor may choose to offer such an agreement for a number of reasons. Here in New York, at the state level, it’s often because the prosecutor thinks you did it but doesn’t have enough evidence to convict. They’re often more amenable to such agreements if you don’t have an existing criminal history, and if the crime is a misdemeanor.
At the federal level they’re often used in cases of corporate corruption. For example, in 2012 Blackwater (now Academi) received one such agreement after the FBI uncovered arms trafficking operations the company was involved with.
Currently, DPAs are also on offer by the DoJ’s antitrust division, who is incentivizing them in return not only for reporting antitrust activity, but for putting “robust” compliance programs in place.
Often, in these cases the members of corporate leadership are people who might otherwise be sent to jail. And in many cases, these agreements include provisions that these parties will fully cooperate with the rest of the investigation, in which other parties or companies can be implicated.
Whether working out a deferred prosecution agreement is a good idea in your case, or even possible, will of course depend on the facts and your unique situation. But if you’re in trouble and hope to pursue such an agreement, you’ve come to the right place. Call Koch Law, PLLC to set up a consultation today. Our NYC criminal lawyer is here to help and guide you through every step of your case, ensuring your rights are protected and advocating for the best possible outcome.
Financial Crimes and Federal Overlap
Under the federal Bank Secrecy Act, banks must report deposits, withdrawals, or transfers of more than $10,000. This doesn’t mean it’s illegal to make them, only that the federal government gets an alert when they see you do it.
Some people try to divide up their transactions in an effort to evade the requirement. Some do this simply because they are uncomfortable with the idea of the federal government knowing about what they’re doing with their money. Some even do it because they have their first large deposit, and find the idea of “being reported to the federal government” rather frightening.
Others do it in an attempt to hide their income from the IRS, or as part of a money laundering scheme.
For example, in the case Ratzlaf v. United States , a defendant paid a casino a $100,000 debt with cashiers checks for less than $10,000 that he purchased at banks all over town. He did this specifically to avoid the reporting requirements.
This crime is punishable either by a fine or with up to five years in prison.
Many people have legitimate reasons to make large cash deposits every day. For example, if you run a retail store you might well make deposits of $5000 to $9000 every single day. This act would not be done with an attempt to avoid the reporting requirements.
How can the government tell? The deposit amounts can tell a story. You might expect legitimate daily deposits to be in uneven amounts ($9802.49 vs. $9000 even). You might also expect to have some days where the amount exceeded $10,000 and thus went over the requirement. The government rarely looks askance at the normal, reasonable expressions of a normal business pattern.
Some transactions may be reported, but they’re just reported. That doesn’t make them suspicious. Keep in mind the bank may voluntarily report on any transaction they think is suspicious if they choose to, regardless of the total amount. You will not be informed that the bank has done so.
Bankers themselves can be found guilty of a federal crime if they fail to report suspicious activity. As The Washington Post notes, “There’s quite a bit of incentive for your bank to give you up, and to cast a wide net around what constitutes ‘suspicious activity.’”
Attempting to dodge the reporting requirement is a criminal act regardless of why it is done, even if the source of the money is perfectly legitimate. You can be brought up on charges even if your sole, complete reason for doing so is the fact that you were attempting to preserve your privacy.
The IRS and the government do make exceptions for transactions done to take advantage of credit card benefits. This is one of several defenses your attorney can turn to if you are charged with this crime.
At the very least, you no longer have to worry as much about the government simply seizing your money and forcing you to try to get it back. In the past, civil asset forfeiture for structuring was very common.
In July of 2019 the Taxpayer First Act became law. This law ensures that the federal government may only seize property for structuring if it is “derived from an illegal source” or if it was done to “conceal criminal activity.”
Structuring cases dropped sharply after the Act was passed.
Nevertheless, structuring can still be brought against you as a stand-alone charge, and is not used solely to put drug dealers or money launderers in prison. It’s a charge you should take very seriously. Get help from an expert federal defender as soon as you know there may be a case against you.
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