United States of America v. Edward Dominguez

*The Honorable James S. Gwin, United States District Judge for the
No rthern D istrict of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0069P (6th Cir.)
File Name: 04a0069p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
EDWARD DOMINGUEZ,
Defendant-Appellee.
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No. 02-2081
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 01-90030—Marianne O. Battani, District Judge.
Argued: October 21, 2003
Decided and Filed: March 4, 2004
Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge;
and GWIN, District Judge.*
_________________
COUNSEL
ARGUED: David J. Debold, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellant.
2 United States v. Dominguez No. 02-2081
Richard D. Korn, Detroit, Michigan, for Appellee.
ON BRIEF: David J. Debold, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellant.
Richard D. Korn, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
BOGGS, Chief Judge. The United States appeals from an
interlocutory order in its prosecution against Edward
Dominguez. The district court suppressed key evidence on
the basis of issue preclusion because the same evidence had
been suppressed in a previous Michigan state court
proceeding against Dominguez. Because the district court
misinterpreted applicable Michigan law, we REVERSE this
order and remand for further proceedings consistent with our
holdings.
I
This case presents the interesting issue of what preclusive
force a Michigan state criminal proceeding may have upon
the course of a subsequent federal criminal proceeding. The
United States charges Dominguez with drug trafficking, under
21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Its case depends
largely upon evidence seized in Dominguez’s automobile
pursuant to a Michigan state search warrant. That warrant, in
turn, was issued based upon an affidavit setting forth the
report of a confidential informant that he had seen a kilogram
of cocaine stored in a secret compartment of an automobile
registered to Ruben Rodriguez, an alias for Dominguez.
A joint state-federal task force, the Western Wayne
Interdiction Team, executed the search warrant and found
cocaine in the car (although not in a secret compartment).
The State of Michigan then brought state-law drug-trafficking
charges against Dominguez. The state trial court suppressed

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No. 02-2081 United States v. Dominguez 3
all evidence obtained as a result of the search warrant, holding
that the warrant had been obtained in violation of the Fourth
Amendment to the United States Constitution. The court then
dismissed the state charges against Dominguez without
prejudice. Michigan did not appeal from that evidentiary
ruling.
After the state case was dismissed, the United States
brought this action based on federal-law charges similar to
those brought by Michigan in the prior state court action.
Dominguez again moved to suppress the evidence. The
district court granted his motion because it found that the
United States was collaterally estopped from litigating that
issue as a privy to the state of Michigan. The United States
appeals.
II
We review de novo a district court decision based on claim
or issue preclusion. Heyliger v. State Univ. & Cmty. Coll.
Sys. of Tenn., 126 F.3d 849, 851 (6th Cir. 1997). Our analysis
begins with the Full Faith and Credit Act, 28 U.S.C. § 1738,
which reads in relevant part: “[t]he records and judicial
proceedings of any court of any . . . State . . . shall have the
same full faith and credit in every court within the United
States . . . as they have by law or usage in the courts of [the
state] from which they are taken.” Therefore, we must
normally give a Michigan state court judgment “the same
preclusive effect as would be given that judgment under the
law of the State.” Migra v. Warren City School Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984). This rule applies to issues
adjudicated in a state-court criminal proceeding. Allen v.
McCurry, 449 U.S. 90 (1980) (plaintiff cannot relitigate in
federal civil rights action the issue of constitutionality of
search, adjudicated in his prior state criminal conviction).
Of course, a Michigan state court never could sit in
judgment over the prosecution of a federal crime, as 18
U.S.C. §3231 creates exclusive federal criminal jurisdiction,
4 United States v. Dominguez No. 02-2081
so there is no Michigan case law directly on point. This by
itself does not prevent us from applying the Full Faith and
Credit Act. The Supreme Court resolved a similar issue in
Marrese v. American Acad. of Orthopaedic Surgeons, 470
U.S. 373 (1985), which directed the appellate court to look
first to the state law of preclusion in order to determine
whether a prior state court judgment precluded an antitrust
claim within the exclusive jurisdiction of the federal courts.
Only after making that determination would the federal court
consider whether the Full Faith and Credit Act should apply.
Marrese, 470 U.S. at 381-82. Because a state court could
never literally apply its preclusion rules to that particular
claim, the federal court applies the state’s general preclusion
rules. Ibid. Marrese involved claim preclusion, but it relied
principally upon Kremer v. Chemical Const. Corp., 456 U.S.
461, 479 & n.20 (1982), which used the state law of issue
preclusion. Ibid. This Circuit therefore understands Marrese
to require a federal court to look first to the rendering state’s
law of issue preclusion, even when the issue in question arises
in the context of a claim that is exclusively within federal
jurisdiction. Kaufman v. BDO Seidman, 984 F.2d 182, 183-
84 & n.5 (6th Cir. 1993).
Therefore, even though the Michigan courts could never
literally confront our situation, we can and must resolve the
Michigan law questions before asking whether some
exception to the Full Faith and Credit Act may apply.
III
Under Michigan law, the party asserting preclusion bears
the burden of proof. Detroit v. Qualls, 454 N.W.2d 374, 383
(Mich. 1990). A court must apply issue preclusion when
1) the parties in both proceedings are the same or in privity,
2) there was a valid, final judgment in the first proceeding,
3) the same issue was actually litigated in the first proceeding,
4) that issue was necessary to the judgment, and 5) the party
against whom preclusion is asserted (or its privy) had a full
and fair opportunity to litigate the issue. Michigan v. Gates,

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No. 02-2081 United States v. Dominguez 5
452 N.W.2d 627, 630-31 (Mich. 1990). The only one of these
factors in contention here is the first. The district court found
that Michigan law would treat the federal government
as“essentially the same party” as the State for these purposes.
We disagree.
The district court, and Dominguez, rely entirely upon In re
Forfeiture of $1,159,420, 486 N.W.2d 326 (Mich. Ct. App.
1992). There, the state of Michigan sought to seize property
from Robert Hawkins and his wife and minor children. In a
prior federal criminal case against Hawkins for drug
trafficking, a federal district court had upheld the validity of
a search warrant used to get evidence against him. In the state
forfeiture proceeding, the state relied on that same evidence.
Although the parties were not identical on either side, the
Michigan appellate court held that the defendants were
collaterally estopped from contesting the validity of the
search warrant. In re Forfeiture, 486 N.W.2d at 333. The
privity requirement of Michigan’s preclusion test was
satisfied because “the federal prosecution and the prosecution
in this case are essentially the same party, albeit of different
governments.” Ibid. The district court concludes that
Michigan law equates Michigan and federal prosecutors for
estoppel purposes. But this conclusion does not follow from
In re Forfeiture for several reasons.
To begin with, In re Forfeiture is an appellate-level
decision, so it can give us only limited guidance in emulating
the Michigan Supreme Court. See King v. Order of United
Commercial Travelers of America, 333 U.S. 153, 160-61
(1948) (federal court construes state law by emulating the
highest court of the state). The key holding of In re
Forfeiture relies upon the Michigan Supreme Court opinion
in Michigan v. Gates, supra, but Gates merely found that a
Michigan prosecutor acted as the same party when he
represented the entire state, as when he represented a state
agency. Gates, 452 N.W.2d at 630. Gates does not imply
that separate governmental units, much less separate
sovereigns, are privies as a matter of law.
6 United States v. Dominguez No. 02-2081
Privity between separate sovereigns is usually found only
after much factual analysis. See United States v. ITT
Rayonier, 627 F.2d 996, 1003 (9th Cir. 1980) (state and
federal environmental agencies were in privity where they
collaborated to grant and later revoke a license under joint-
authority statutory scheme); compare United States v. Power
Eng’g Co., 303 F.3d 1232, 1241 (10th Cir. 2002)
(distinguishing facts and finding no privity). Michigan law
does not find privity between governmental units as a matter
of law. Quite the contrary, Gates emphasizes that such
questions require “multifaceted analysis and balancing of
competing and vaguely defined governmental and private
interests.” Id. at 630 n.12 (quoting Holland, Modernizing Res
Judicata Reflections on the Parklane Doctrine, 55 Ind. L.J.
615 , 618-19 (1980)). Michigan thus agrees with the modern
view of collateral estoppel, that privity will be found only
upon consideration of the facts of a particular case. E.g.,
United States v. Bonilla-Romero, 836 F.2d 39, 43 (1st Cir.
1987). In re Forfeiture itself is not to the contrary, although
the district court apparently did not appreciate the
significance of the words “in this case [the prosecutors] are
essentially the same party.” In re Forfeiture, 486 N.W.2d at
333 (emphasis added).
Nor are the facts of In re Forfeiture so like those before us
as to demand the same outcome. Unlike the second
prosecutor in that case, the United States is not an arguable
stranger to the dispute now seeking to assert issue preclusion;
rather, we are asked to apply issue preclusion against the
newcomer based upon a finding of privity. The latter is a
weightier determination. Many jurisdictions have dispensed
with the privity requirement altogether as to the party
asserting preclusion, Blonder-Tongue Labs., Inc. v. Univ. of
Ill. Found., 402 U.S. 313, 326 & n.14 (1971), but never as to
the party to be precluded. Shimman v. Frank, 625 F.2d 80,
89-90 (6th Cir. 1980).
Michigan maintains the traditional rule of “mutuality of
estoppel,” requiring both the party to be precluded and the

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No. 02-2081 United States v. Dominguez 7
1The In re Forfeiture court also found privity on the other side of the
equation, reasoning that Hawkins’s interests as criminal defendant
represented his and his family’s interests as property owners. 486 N.W.2d
at 333. Dominguez therefore suggested at colloquy that Michigan and the
United States were like a family, a warm view of federal-state relations
that this court cannot ho ld always is accurate.
party asserting preclusion to have been represented at the
prior proceeding. Lichon v. American Universal Ins. Co., 459
N.W.2d 288, 298 (Mich. 1990). One might conclude that
when a Michigan court finds privity, it uses exactly the same
analysis as to either role, so the finding is precedential across
the board. But it has long been observed that in jurisdictions
that require mutuality of estoppel, “exceptions were made by
decisions that extended the benefits of preclusion through
findings of privity that surely would not have been made had
the direction of preclusion been reversed.” 18 Charles Alan
Wright, Arthur R. Miller, & Edward H. Cooper, Federal
Practice and Procedure § 4463 (1981). The Michigan Court
of Appeals takes a pragmatic, equitable approach to the
mutuality requirement. See Keywell & Rosenfeld v. Bizell,
657 N.W.2d 759, 787-88 (Mich. Ct. App. 1992), and cases
cited therein. Therefore, even the same panel of the Michigan
Court of Appeals might not have found privity had the In re
Forfeiture roles been reversed.1
The Michigan Supreme Court has recently provided more
relevant guidance. Baraga County v. State Tax Comm’n, 645
N.W.2d 13, 17 (Mich. 2002), held that Michigan’s Tax
Commission was not bound by a consent agreement between
a county and an Indian tribe over the payment of property
taxes, because the facts presented did not show that the
county and the Tax Commission were in privity. The court
held that between governmental units, unlike private entities,
privity is not based upon an identity of interests, but only
upon an agency relationship. Baraga County, 645 N.W.2d at
17. The court also expressed its reluctance to find privity
between different governmental units, agreeing with the
general proposition that “[c]ourts have also generally found
8 United States v. Dominguez No. 02-2081
2The United States urges us to adop t Charles as a rule of federal
common law. But it is not clear whether Charles and related cases
establish a rule of federal law or simply recognize a com mon ality in state
law throughout the First Circuit.
that no privity exists between state and federal governments,
between the governments of different states, or between state
and local governments.” Ibid. (quoting 47 Am. Jur. 2d
Judgments, § 700 (2003)) (emphasis added). Although
Baraga County addresses federal-state privity only in dictum,
it strongly suggests that absent a showing of an agency
relationship between the state and federal prosecutors, a
Michigan court would not find they were in privity.
The Baraga County dictum commands our respect, the
more so because it accords with the general understanding of
the relationship between federal and state prosecutors. This
court has opined, albeit only in dictum and without analysis
of state law, that a Michigan and a United States prosecutor
were not the same party. United States v. Lloyd, 10 F.3d 1197
(6th Cir. 1993). The First Circuit Court of Appeals routinely
looks for an agency relationship to determine whether a
federal prosecution is collaterally estopped by a ruling in a
prior state prosecution. United States v. Charles, 213 F.3d
10, 21 (1st Cir.), cert. denied, 531 U.S. 915 (2000).2
Similarly, this court has recognized that successive state and
federal prosecutions may constitute double jeopardy only if
the state proceeding was a mere “tool” or “cover” for a federal
prosecution. United States v. Louisville Edible Oil Prods.,
Inc., 926 F.2d 584 (587-88) (1991) (quoting Bartkus v.
Illinois, 359 U.S. 121, 123-24 (1959)).
In his appellate brief, and at oral argument, Dominguez
asserted that the United States did direct the state prosecution.
But there is no evidence in the record to support this
argument. Dominguez merely asserts that a state-employed
Assistant Attorney General on the state prosecution team was
also designated as an Assistant United States Attorney

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No. 02-2081 United States v. Dominguez 9
involved in the federal prosecution. This court will not affirm
based upon a mere assertion made for the first time at the
appellate level. This is particularly so, because even if
supported, the facts asserted would not prove control or
agency: Dominguez does not assert that this particular state
prosecutor could or did effectively recommend dismissal, nor
that he was subject to federal control during the state
proceedings.
We conclude that a Michigan court applying Michigan law
would not find based upon the facts in the record that the
United States was in privity with the Michigan prosecutor in
the prior state proceeding. Therefore, collateral estoppel does
not bar the introduction of this evidence.
Even if Michigan law did create privity between the federal
and state governments as a matter of law, we would have
grave doubts as to the propriety of estopping a federal
prosecutor on these grounds. As seen in this case, issue
preclusion often concludes an action as surely as claim
preclusion. See Ashe v. Swenson, 397 U.S. 436, 445 (1970)
(state is precluded from separately prosecuting alleged robber
for each victim of same robbery, where state could not prove
identity in first trial). In effect, Michigan could gravely affect
the powers of the United States acting as sovereign in its own
courts. Cf. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir.
1977) (“collateral estoppel doctrine does not apply when
different sovereigns and, thus, different parties are involved
in the litigation.”) The Full Faith and Credit Act certainly
gives the Michigan courts and legislature considerable
influence over subsequent litigation in federal court, and this
serves comity. Migra, 475 U.S. at 84. But to promote comity
is one thing, to surrender sovereignty quite another.
The problem is illustrated by comparison to Mich. Comp.
Laws Ann. § 333.7409, which bars a Michigan prosecution
for drug trafficking based upon acts that have already given
rise to a criminal prosecution in another jurisdiction.
Dominguez urges that a Michigan court would analogize from
10 United States v. Dominguez No. 02-2081
this statute and bar a successive federal prosecution as well.
But this would let a hypothetical Michigan court do what the
state legislature may not. Michigan clearly could not by
statute restrain federal prosecutors from enforcing federal
criminal laws as to Michigan convicts. How, then, can its
courts create a uniquely-targeted rule of preclusion to do
precisely that?
The United States in its role as prosecutor is very different
from the usual civil litigator. In Standefer v. United States,
447 U.S. 10 (1980), the Court determined that non-mutual
collateral estoppel may not be applied against the United
States in criminal cases. The Court based this decision in part
upon the great public interest in the maintenance of criminal
prosecutions despite possibly erroneous prior acquittals based
on the same facts. Standefer, 447 U.S. at 25. The public’s
interest stands in sharp contrast to the importance of the
vindication of a mere private right in the usual civil action.
Id. at 24. Just so, applying a general state preclusionary rule,
even as to a claim exclusively within the civil jurisdiction of
the United States impairs only the rights of one litigant on one
occasion; but only the United States has the power to enforce
its own criminal laws. It should not be lightly inferred that
Congress intended to put this fundamental attribute of
sovereignty at the mercy of a state legislature’s or judiciary’s
ability to say, as it were, “inside our state borders, the federal
government is us.”
Such an expansive reading of the Act could have
mischievous results. The federal government would doubtless
be obliged to involve itself closely in all Michigan criminal
prosecutions implicating some federal crime. The resulting
interference with the Michigan Attorney General’s office
would waste federal and state resources. It might also impair
the very goal of the Full Faith and Credit Act, comity. See
Migra, 475 U.S. at 84. And the mischief need not be
confined to the criminal arena but could spread to other areas
of overlapping federal and state responsibility. Instead of
assessing the sovereigns’ relationship on a case-by-case basis,

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No. 02-2081 United States v. Dominguez 11
as in ITT Rayonier, supra, the mere fact of overlap would be
enough to create privity between agencies. Confronting a
similar issue, the Supreme Court held that a California state
court ejectment action against tenants of the United States did
not estop the United States, even though California made
landlords privy to their tenants in such actions. Carr v.
United States, 98 U.S. 433, 437 (1878). To rule otherwise
would be to find, unacceptably, that California had subjected
the United States to suit without its consent or even its
knowledge. Id. at 438. Carr may not fully accord with the
modern view of sovereign immunity, but its general concerns
remain valid. Generally applicable state rules of privity may
occasionally encompass the United States in its sovereign role
and preclude some claim or issue. ITT Rayonier, 627 F.2d at
1002-03 & n.7. But it seems unlikely that a privity rule
targeted solely at the United States as prosecutor would come
within the bounds of the Full Faith and Credit Act.
Because the United States was not party or privy to the
state court proceeding against Dominguez, it is not
collaterally estopped from litigating the admissibility of the
evidence against Dominguez, and we therefore REVERSE the
order of the district court and remand for further proceedings
in accord with this opinion.

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