People v. Avila , 229 Mich. App. 247 ( 1998 )

McDonald, J.

The prosecution appeals as of right an order dismissing the charge of possession with intent to deliver 650 grams or more of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), against defendant. This Court previously affirmed the trial court’s dismissal of the charge in an unpublished order.¹ The Michigan Supreme Court vacated this Court’s judgment and remanded for plenary consideration. 455 Mich 863 (1997). We again affirm.

The facts are not disputed. In March 1994, a search of defendant’s residence revealed approximately ten kilograms of cocaine. Following the search, defendant was charged in federal court with conspiracy to distribute or to possess with intent to distribute cocaine, 21 USC 841(a)(1), 846.² In June 1994, the Wayne County prosecutor’s office charged defendant with possession with intent to deliver more than 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). The Wayne County charge was based on the same ten kilograms of cocaine as the federal charges. On February 1, 1995, defendant pleaded guilty to the federal charge in the United States District Court for the Eastern District of Michigan. He then filed a motion to dismiss the state charge on double jeopardy grounds in the Detroit Recorder’s Court. The trial court found the prosecution was barred by the Double Jeopardy Clause³ of the Michigan Constitution.

The prosecutor argues the trial court erred in finding that the Double Jeopardy Clause barred prosecution in this case. The Double Jeopardy Clause of the Michigan Constitution prohibits successive state and federal prosecutions arising out of the same criminal act except where the state and federal interests in prosecuting the defendant are “substantially different.”⁴ People v Cooper, 398 Mich 450, 461; 247 NW2d 866 (1976); People v Watt, 210 Mich App 92, 94-95; 533 NW2d 325 (1995), citing People v Gay, 407 Mich 681, 693-695; 289 NW2d 651 (1980). To determine whether the state and federal interests are “substantially different” in a particular case, the following factors are considered: (1) whether the maximum penalties of the statutes involved are greatly disparate, (2) whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and (3) whether the differences in the statutes are merely jurisdictional or are more substantive. Cooper, supra at 461; Watt, supra at 95.

In this case, the prosecution concedes that the maximum penalties of the federal and state statutes are similar and that the federal authorities could fully vindicate Michigan’s interests in securing a conviction. However, the prosecution argues that because the state crime for which defendant was charged, possession with intent to deliver cocaine, is distinct from the federal offense to which defendant pleaded guilty, the inchoate crime of conspiracy, the crimes are substantively different. Accordingly, the prosecution concludes that the subsequent state prosecution does not violate Michigan’s Double Jeopardy Clause.

However, we need not decide the constitutional double jeopardy issue because we find MCL 333.7409; MSA 14.15(7409) controls. MCL 333.7409; MSA 14.15(7409) applies only to controlled substances crimes and provides:

If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

The Michigan Supreme Court has recently explained lhat the Legislature did not merely codify Cooper, supra, when it passed § 7409. The statute operates as a complete bar to successive prosecutions based on the same act, where Cooper allows successive prosecution in those cases where the state’s interest is “substantially different” than that of the jurisdiction where the initial prosecution took place. People v Mezy, 453 Mich 269, 282-284 (Weaver, J.), 286 (Brickley, C.J.), 289 (Levin, J.); 551 NW2d 389 (1996). A defendant bears the burden of proving that prosecution is precluded pursuant to statutory double jeopardy, § 7409. Id. at 283.

In this case, there is no question that the state charge arose out of the same acts as those that formed the basis of the federal conviction, defendant’s acts of possessing the ten kilograms of cocaine at his residence and breaking it up for eventual sale. Although the prosecution correctly states that a conspiracy charge does not constitute the same offense aíi a possession charge, id. at 276, this is not relevant to whether § 7409 is implicated. As we have already discussed, § 7409 bars all successive prosecutions based on the same criminal act. Accordingly, § 7409 precludes prosecution in this case, and dismissal of the charges was proper.

The prosecution also argues defendant’s double jeopardy challenge is waived because he pleaded guilty to the federal charge knowing the Wayne County charge was pending, relying on Wayne Co Prosecutor v Recorder’s Court Judge, 92 Mich App 433, 442; 285 NW2d 318 (1979). However, the exception advocated by the prosecution does not apply to the statutory provision at issue here.⁵ Section 7409 does not set forth any exceptions. Instead, it precludes prosecution whenever a charge arises out of the same acts that were the subject of a previous prosecution in either federal court or another state’s court. Accordingly, defendant’s guilty plea does not waive application of § 7409 to bar prosecution in the present case.

Affirmed.

Hood, P.J., concurred.

1 People v Avila, unpublished order of the Court of Appeals, entered November 12, 1996 (Docket No. 184219).

2 21 USC 841(a)(1) provides, in relevant part:

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

(1) to . . . distribute ... or possess with intent to . . . distribute ... a controlled substance[.]

21 USC 846 provides:

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

3 Const 1963, art 1, § 15.

4 Successive prosecutions by the state and federal governments for the same act do not violate the Double Jeopardy Clause of the Fifth Amendment pursuant to the dual-sovereignty doctrine. Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959); Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959).

5 We specifically decline to address whether defendant’s guilty plea would have waived his double jeopardy challenge if this case were not controlled by § 7409.