State v. Robertson

2014 UT App 51
_________________________________________________________
THE U TAH COURT OF A PPEALS
STATE OF U TAH,
Plaintiff and Appellee,
v.
D. C HRIS R OBERTSON,
Defendant and Appellant.
Memorandum Decision
No. 20120951‐CA
Filed March 6, 2014
Third District Court, West Jordan Department
The Honorable Terry L. Christiansen
No. 111401510
T. Langdon Fisher, Attorney for Appellant
Sean D. Reyes, Deborah L. Bulkeley, and
Michelle I. Young, Attorneys for Appellee
J UDGE J OHN A. P EARCE authored this Memorandum Decision, in
which J UDGES G REGORY K. ORME and MICHELE M. C HRISTIANSEN
concurred.
PEARCE, Judge:
¶1 	D. Chris Robertson appeals from his convictions on twenty
counts of sexual exploitation of a minor, each a second degree
felony. 	See 	Utah 	Code 	Ann. 	§ 	76‐5b‐201 	(LexisNexis 	2012).
Robertson argues that by prosecuting him after 	his federal
conviction 	for 	the 	same 	conduct, 	the 	State 	violated 	his
constitutional rights by placing him twice in jeopardy for the same
offenses. He also argues that his prosecution by the State is barred
by principles of res judicata. We affirm.
¶2 	The Internet Crimes Against Children task force (ICAC) is
a multijurisdictional task force of local, state, and federal law

State v. Robertson
enforcement officers.1 In March 2009, a Salt Lake City Police
Department (SLCPD) detective assigned to ICAC received a tip
that Robertson was accessing and viewing child pornography on
his workplace computer. After interviewing several of Robertson’s
employees, ICAC agents obtained a search warrant for Robertson’s
office from a Utah state district court judge. When the agents
executed the search warrant, they discovered more than 24,000
images 	and 	approximately 	380 	videos 	containing 	child
pornography.
¶3 	The ICAC case manager, a special agent with the Utah
Attorney General’s Office, consulted with a Utah state prosecutor
and received “the go ahead” to pursue Robertson’s prosecution in
federal court. 2 The case manager presented the case to an Assistant
United States Attorney (the AUSA), who “agreed that there was
probable cause to move forward with charges.” The AUSA then
initiated a federal prosecution against Robertson.
¶4 	The case manager continued to work with the AUSA as the
investigator 	on 	the 	case. 	In 	September 	2009, 	when 	federal
authorities presented evidence against Robertson to a federal grand
jury, the case manager was the only government witness to testify.
After a federal indictment and arrest warrant for Robertson were
obtained, the case manager and the SLCPD detective arrested
Robertson. The case manager also assisted the federal prosecution.
At the request of the AUSA prosecuting the case, the case manager
met with defense attorneys to review the case, obtained witness
statements, and examined evidence to identify victims.
1. Although ICAC generally includes federal agents, it appears that
no federal ICAC agents were involved in the investigation or
prosecution of either the state or federal case against Robertson.
2. The record does not reveal why the case manager decided to
present the case to the United States Attorney’s Office rather than
commence a state prosecution initially.
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State v. Robertson
¶5 	In April 2010, Robertson pleaded guilty to a single federal
count 	of 	possessing 	child 	pornography. 	He 	was 	eventually
sentenced to the two days jail time that he had served after his
arrest, as well as federal probation. He was also ordered to pay
restitution to two victims in the total amount of $75,000. The case
manager was dissatisfied with this sentence and spoke with Utah
state prosecutors about the possibility of filing state charges against
Robertson. The State then initiated its own prosecution in Utah
state court, charging Robertson with twenty counts of sexual
exploitation of a minor based on twenty of the images and videos
of child pornography found in his possession.
¶6 	Robertson filed a motion to dismiss, arguing that principles
of double jeopardy and res judicata foreclosed the State’s ability to
prosecute him. The district court denied Robertson’s motion,
reasoning that the State and the federal governments are separate
sovereigns who, under the “dual sovereignty doctrine,” are entitled
to conduct their individual prosecutions of Robertson without
offending double jeopardy principles. See generally State v. Franklin,
735 P.2d 34, 36–38 (Utah 1987). After a bench trial, the district court
convicted Robertson of all counts and sentenced him to twenty
concurrent terms of one to fifteen years in prison.
¶7 	Robertson appeals, arguing that the district court erred in
applying the doctrine of dual sovereignty to deny his motion to
dismiss. He argues 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. These
arguments 	present 	questions 	of 	law, 	which 	we 	review 	for
correctness. See State v. Sommerville, 2013 UT App 40, ¶ 6, 297 P.3d
665 (reviewing both double jeopardy and res judicata questions for
correctness).
I. Double Jeopardy Under the United States Constitution
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State v. Robertson
¶8 	The 	Double 	Jeopardy 	Clause 	of 	the 	United 	States
Constitution provides, “No person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. This clause protects defendants from “(1) ‘a second
prosecution for the same offense after acquittal,’ (2) ‘a second
prosecution for the same offense after conviction,’ and (3) ‘multiple
punishments for the same offense.’” Warnick v. Booher, 425 F.3d 842,
847 (10th Cir. 2005) (quoting Jones v. Thomas, 491 U.S. 376, 381
(1989)). A defendant is not, however, generally placed in double
jeopardy when prosecutions for the same criminal behavior are
initiated by separate sovereigns under their own laws. See Heath v.
Alabama, 474 U.S. 82, 88 (1985) (“[W]hen the same act transgresses
the laws of two sovereigns, it cannot be truly averred that the
offender has been twice punished for the same offence; but only
that by one act he has committed two offences, for each of which he
is justly punishable.” (citation and internal quotation marks
omitted)).
¶9 	While 	acknowledging 	the 	dual 	sovereignty 	doctrine,
Robertson argues that the United States Supreme Court has
created, in Bartkus v. Illinois, an exception that prevents his
subsequent state prosecution in this case. See 359 U.S. 121, 123–24
(1959). Under Bartkus, double jeopardy principles may be violated
when 	the 	initial 	prosecution 	by 	one 	sovereign 	is 	a 	“sham
prosecution” or “is used as a cover or tool for a successive
prosecution by another sovereign.” United States v. Barrett, 496 F.3d
1079, 1119 (10th Cir. 2007) (citation and internal quotation marks
omitted).
¶10 	Courts have recognized that Bartkus provides only a narrow
exception to the otherwise robust dual sovereignty doctrine. See
United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir. 1984)
(characterizing Bartkus as a “narrow exception to the ‘dual
sovereignty’ doctrine”). Even a large measure of cooperation
between state and federal authorities is not ordinarily sufficient to
invoke Bartkus. See United States v. Bernhardt, 831 F.2d 181, 182 (9th
Cir. 1987) (“It is clear that the Bartkus exception does not bar
20120951‐CA 	2014 UT App 51	4

State v. Robertson
cooperation between prosecuting sovereignties.”). Rather, the
exception is “limited to situations in which one sovereign so
thoroughly dominates or manipulates the prosecutorial machinery
of another that the latter retains little or no volition in its own
proceedings.” United States v. Guzman, 85 F.3d 823, 827 (1st Cir.
1996). Bartkus does not apply so long as each prosecuting sovereign
retains “sufficient independent . . . involvement” in its own
prosecution. Bernhardt, 831 F.2d at 183. Thus, to prevail on his
Bartkus argument, Robertson “must demonstrate that the [federal]
officials had little or no independent volition in the [federal]
proceedings.” See United States v. Liddy, 542 F.2d 76, 79 (D.C. Cir.
1976).
¶11 	Robertson contends that the State’s substantial involvement
in his investigation and federal prosecution pushes this case into
the Bartkus exception. In support of this contention, Robertson
notes that the State’s agents initially discovered Robertson’s illegal
activities, conducted the investigation, and obtained and executed
a state search warrant. He further points out that it was the case
manager who, after consultation with a state prosecutor, decided
to refer the matter for federal charges. After the federal government
elected to prosecute Robertson, the ICAC case manager played a
key role in obtaining a federal indictment and arrest warrant,
personally 	participated 	in 	Robertson’s 	arrest 	on 	the 	federal
warrant, and continued to act as the case agent throughout the
federal prosecution.
¶12 	Despite the State’s substantial involvement in Robertson’s
investigation and federal prosecution, the federal case cannot be
accurately characterized as either a sham prosecution or a tool for
the State. The record does not support a conclusion that the federal
prosecutor lacked independent volition in the federal prosecution
against Robertson. The AUSA exercised control over the federal
prosecution and could have declined to accept it initially or
dismissed it at any time without the State’s approval. There is
nothing in the record to even suggest that the federal government
lost any ability to prosecute its case in the manner it desired.
20120951‐CA 	2014 UT App 51	5

State v. Robertson
¶13 	Further, 	the 	circumstances 	of 	this 	case 	are 	readily
distinguishable from the cases Robertson cites in which courts have
analyzed Bartkus. In United States v. Belcher, 762 F. Supp. 666 (W.D.
Va. 1991), the court dismissed a federal indictment that had been
obtained only after a state prosecution on similar charges was
dismissed. The court found it “inconsistent with the concepts of
federalism implicit in the Constitution” that the same attorney had
been granted prosecuting authority by both the state and federal
governments and had prosecuted both cases against the defendant.
Id. at 670–71.
¶14 	In United States v. Scholz, 899 F. Supp. 484 (D. Nev. 1995), the
court stated in dicta that an initial state prosecution was likely “a
federal case in state clothing” that would implicate the Bartkus
exception. Id. at 487. In Scholz, the federal government had
arranged the state prosecution as a decoy for an ongoing federal
investigation, 	“to 	avoid 	panicking 	[the 	defendant’s]
coconspirators.” Id. at 486–87. However, the court found no double
jeopardy problem because of substantive differences between the
defendant’s state and federal crimes. Id. at 486.3
¶15 	Here, the State did not lend a state prosecutor to conduct the
prior federal action against Robertson, as in Belcher, nor is there any
3. Robertson also cites United States v. Bernhardt, 831 F.2d 181 (9th
Cir. 1987). In Bernhardt, the Ninth Circuit Court of Appeals
determined that the Bartkus exception might apply where the state
initiated a federal prosecution following the dismissal of state
charges and the federal prosecution was conducted by a state
prosecutor and funded by the state. See id. at 183. However, the
court remanded the matter to the trial court to determine whether
there was “sufficient independent federal involvement” to avoid
the application of Bartkus. Id. As discussed earlier in this decision,
there is nothing in the record before us upon which we could
conclude 	that 	the 	federal 	authorities 	lacked 	independent
involvement in Robertson’s federal prosecution.
20120951‐CA 	2014 UT App 51	6

State v. Robertson
evidence or allegation that the State referred the case for federal
prosecution as a subterfuge, as in Scholz. Taken together, the
common thread running through the cases that apply Bartkus is the
concern that the prosecutorial powers of two sovereigns have been
combined in, or are being directed by, a single sovereign. Because
the federal government retained control over its prosecution of
Robertson, the Bartkus exception does not preclude the application
of the dual sovereignty doctrine in this case, and Robertson’s
prosecution by the State does not violate the double jeopardy
protections of the United States Constitution.
II. Double Jeopardy Under the Utah Constitution
¶16 	Robertson also argues that even if the federal constitution
does not prohibit his subsequent state prosecution, the Utah
Constitution’s double jeopardy clause does. See Utah Const. art. I,
§ 12 (“[N]or shall any person be twice put in jeopardy for the same
offense.”). 	Much 	like 	its 	federal 	counterpart, 	Utah’s 	double
jeopardy clause protects a criminal defendant from “(1) a second
prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense.” State v. Harris, 2004 UT 103,
¶ 24, 104 P.3d 1250 (citation and internal quotation marks
omitted).”
¶17 	As Robertson correctly observes, the Utah Supreme Court
has stated that the double jeopardy protections of the Utah
Constitution are greater in some respects than those found in the
United States Constitution. See id. ¶ 23 (“[T]he double jeopardy
guarantees afforded defendants under the Utah Constitution are
different from and provide greater protection than those afforded
by the United States Constitution.”).4 Robertson argues that those
4. Despite the broad general language of State v. Harris, 2004 UT
103, ¶ 23, 104 P.3d 1250, Robertson fails to identify any specific
(continued...)
20120951‐CA 	2014 UT App 51	7

State v. Robertson
greater protections should prevent the State from prosecuting him
where the State opted to present the case to the federal prosecutor
rather than commence its own action as an initial matter.
¶18 	Presumably, to provide Robertson with stronger protections
than the United States Constitution, the Utah Constitution would
have to recognize a weaker dual sovereignty doctrine, a more
expansive Bartkus exception, or some combination of the two. But
the Utah Supreme Court has expressly recognized the vitality of
the dual sovereignty doctrine under the Utah Constitution. See
State v. Franklin, 735 P.2d 34, 36–38 (Utah 1987) (declining “to
follow the lead of some state courts that have interpreted their state
constitutions as barring prosecutions by the state after federal
prosecutions”). In retaining the doctrine, the supreme court
recognized Utah’s power to prosecute and “punish those who
break its laws” and the need to reject a rule whereby “legitimate
prosecutions [would be foreclosed] by the errors, omissions, or
inadequacies of federal prosecutions.” Id. at 38. Here, the State’s
prosecution of Robertson appears to have been motivated, at least
in part, by a belief that the federal prosecution—and particularly
the sentence—had inadequately vindicated the State’s interest in
punishing Robertson.
¶19 	Further, Robertson has not convinced us that any broader
Bartkus‐type exception under the Utah Constitution would be
possible under Franklin’s reasoning. The Franklin court concluded,
Were we to hold that Utah could not try individuals
because they had been previously tried in a federal
court, 	we 	still 	could 	not 	prevent 	the 	federal
government from trying individuals after they had
4. (...continued)
double jeopardy protections that have been determined to be
greater under the Utah Constitution than under the United States
Constitution.
20120951‐CA 	2014 UT App 51	8

State v. Robertson
been tried by Utah; we would thus be surrendering
state sovereignty in exchange for a more theoretical
than real gain in individual rights.
Id. Should this court attempt to articulate an exception that is
broader than the Bartkus exception, we would create a scenario in
which significant state–federal cooperation could prevent a state
prosecution after a federal action but permit a federal prosecution
after a state case. Such a result would partially undercut the
rationale for the supreme court’s continued recognition of the dual
sovereignty doctrine under the Utah Constitution.
¶20 	Robertson argues that the sovereignty concerns articulated
in Franklin are less pronounced where the State affirmatively elects
to present a case to the federal authorities rather than bring its own
action. Even if we were to agree with Robertson that such concerns
are diminished when the State suggests, or even encourages, the
federal government to prosecute initially, we cannot agree that the
State loses its sovereign authority to prosecute potential violations
of state law by so doing. As the United States Supreme Court has
recognized, a government’s “interest in vindicating its sovereign
authority through enforcement of its laws by definition can never be
satisfied by another [sovereign’s] enforcement of its own laws.”
Heath v. Alabama, 474 U.S. 82, 93 (1985) (first emphasis added).
Absent the complete abdication of federal prosecutorial authority,
such that the State is effectively prosecuting both the state and
federal cases—and thereby vindicating its sovereign authority in
the first action—the State retains the ability to prosecute violations
of its own laws without placing a defendant in double jeopardy.
¶21 	For these reasons, we conclude that Robertson’s state court
convictions are not precluded by article I, section 12 of the Utah
Constitution. 5
5. Robertson also seeks relief pursuant to Utah Code sections 76‐1‐
(continued...)
20120951‐CA 	2014 UT App 51	9

State v. Robertson
III. Res Judicata
¶22 	Finally, Robertson argues that his state court convictions
should be barred under principles of res judicata. “Res judicata has
two branches: claim preclusion and issue preclusion.” State v.
Walker, 2013 UT App 198, ¶ 17, 308 P.3d 573. Claim preclusion
“corresponds to causes of action and bars a party from prosecuting
in a subsequent action a claim that has been fully litigated
previously.” State v. Sommerville, 2013 UT App 40, ¶ 30, 297 P.3d
665 (citations and internal quotation marks omitted). “Issue
preclusion, which is also known as collateral estoppel, corresponds
to the facts and issues underlying causes of action and prevents
parties or their privies from relitigating facts and issues in [a]
second suit that were fully litigated in the first suit.” Id. (alteration
in original) (citations and internal quotation marks omitted).
Robertson argues that both claim preclusion and issue preclusion
bar his state court convictions.
¶23 	One requirement of claim preclusion is that “both cases
must involve the same parties or their privies.” Walker, 2013 UT
App 198, ¶ 18 (citation and internal quotation marks omitted).
5. (...continued)
403 and ‐404, which generally codify the Utah Constitution’s
double jeopardy protections. However, the Utah Supreme Court
has noted that those sections provide protections that are consistent
with traditional double jeopardy principles. See State v. Harris, 2004
UT 103, ¶ 24 n.6, 104 P.3d 1250 (stating that Utah Code section 76‐1‐
403 codifies a double jeopardy standard similar to that of the Utah
Constitution); State v. Franklin, 735 P.2d 34, 37 (Utah 1987) (“It is . . .
appropriate to view section 76‐1‐404 as a legislative codification of
traditional double jeopardy interpretation.”). Accordingly, the
statutory provisions do not provide Robertson with any greater
protection than the constitutional provisions we have addressed
herein.
20120951‐CA 	2014 UT App 51	10

State v. Robertson
Similarly, in order for issue preclusion to apply, “the party against
whom issue preclusion is asserted must have been a party to or in
privity with a party to the prior adjudication.” Boudreaux v. State,
1999 UT App 310, ¶ 21, 989 P.2d 1103 (citation and internal
quotation marks omitted).
¶24 	This court, relying in part on the dual sovereignty doctrine,
has 	previously 	recognized 	that 	the 	State 	and 	the 	federal
government are not considered to be in privity for purposes of res
judicata. State v. Byrns, 911 P.2d 981, 984 (Utah Ct. App. 1995)
(“Under the ‘dual sovereignty’ doctrine, principles of collateral
estoppel generally cannot be invoked to bar the relitigation of an
issue by a separate sovereign.”); accord United States v. Smith, 446
F.2d 200, 202 (4th Cir. 1971) (“The federal government is neither the
same as nor in privity with the State of Virginia and therefore is not
barred from relitigating facts resolved in defendant’s favor in the
former prosecution.”). Because there is no privity between the State
and the federal government in relation to Robertson’s prosecutions,
res judicata does not bar Robertson’s state court convictions.6
¶25 	In conclusion, Robertson has not established that his state
court convictions are barred either as a matter of double jeopardy
under the United States Constitution or the Utah Constitution or by
6. Robertson argues the circumstances of this case—i.e., the State’s
substantial 	involvement 	in 	the 	investigation 	and 	federal
prosecution—create privity between the State and the federal
government for res judicata purposes. However, as with his double
jeopardy argument, whether the State acts so closely with the
federal government as to be deemed a single sovereign for res
judicata purposes is informed by Bartkus. See State v. Byrns, 911
P.2d 981, 984 (Utah Ct. App. 1995) (stating that Bartkus “carved out
a narrow exception” to the dual sovereignty doctrine’s application
to res judicata). As discussed above, the level of involvement
between the State and federal authorities falls well short of the high
bar Bartkus sets.
20120951‐CA 	2014 UT App 51	11

State v. Robertson
principles of res judicata. Accordingly, we affirm Robertson’s
convictions.
20120951‐CA 	2014 UT App 51	12