State v. Robertson

2017 UT 27 (2017)

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Nature of the Case

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Facts

In March 2009, D was viewing child pornography on his workplace computer. Detective Buhman secured a warrant to search D's business and seize his computers. Examination of the computers revealed more than 24,000 still images of child pornography and approximately 380 child pornography videos. D admitted to viewing and downloading child pornography. But he denied re-sending or producing any pornography. P sought federal prosecution in order to obtain a more severe sentence. D was indicted by a federal grand jury in September 2009 on one count of possession of child pornography. The indictment charged D with 'knowingly possess[ing] computer disks and other materials containing images of child pornography.' The indictment also contained a forfeiture notice, requiring D to 'forfeit to the United States . . . any and all property . . . used or intended to be used in any manner or part to commit and to facilitate the commission of a violation' of the federal child pornography criminal statute. P contacted its 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 D. P charged him with twenty counts of sexual exploitation of a minor in violation of Utah Code section 76-5a-3. The probable cause statement initiating P's case indicated that P was prosecuting D 'for the same criminal acts' as the federal prosecution, which P claimed was permitted 'because prosecution under the laws of separate sovereigns does not subject a defendant to double jeopardy.' D moved to dismiss P's charges, claiming P'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. The court specifically found that P's prosecution was 'based on the same body of evidence' as his federal prosecution. P filed a petition for interlocutory appeal, which was denied. D did not contest his guilt. He was convicted and sentenced to twenty concurrent terms of one to fifteen years in prison. The trial court described the case as 'basically the same case that was had in federal court, it's based on the same facts.' D appealed arguing 'that the dual sovereignty doctrine should not apply under the circumstances of this case and that his state court convictions are therefore barred under the double jeopardy clauses of both the United States and Utah constitutions, as well as by state double jeopardy statutes and principles of res judicata.' The court of appeals affirmed. It held that the Utah Constitution did not prevent the subsequent prosecution, and res judicata did not apply because 'P and the federal government are not considered to be in privity for purposes of res judicata.' P sought relief pursuant to Utah Code section 76-1-404. The court concluded that the statute did not provide 'any greater protection than the constitutional provisions we have addressed herein.' D appealed.