Both the Michigan Constitution, Const 1963, art 1, § 15, and the United States Constitution, US Const, Am V, prohibit putting a defendant twice in jeopardy for the same offense. People v Ford, 262 Mich App 443, 447 (2004) (holding that the Michigan Constitution provides the same double jeopardy protections as the United States Constitution).
“The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” People v Nutt, 469 Mich 565, 574 (2004). Michigan uses the same-elements test to determine whether the prohibition against double jeopardy is violated. Id. at 575-596. The same-elements test is commonly referred to as the Blockburger test. Nutt, 469 Mich at 576; Blockburger v United States, 284 US 299, 304 (1932).1 The Blockburger test applies in both “multiple punishments” cases and in “successive prosecutions” cases. People v Smith (Bobby), 478 Mich 292, 315-316 (2007). For a detailed discussion of double jeopardy generally, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9.
B.Protection Under Article 7 of the PHC
“If a violation of [Article 7 of the PHC] 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.” MCL 333.7409.
MCL 333.7409 precludes successive prosecutions under federal or state law involving the same act, not the same offense. People v Zubke, 469 Mich 80, 85 (2003). For purposes of MCL 333.7409, “it is a defendant’s actions that must be compared, not the elements of the crimes.” Zubke, 469 Mich at 85.
In Zubke, the Michigan Supreme Court held that the state’s possession with intent to deliver charge was not precluded under MCL 333.7409 by the defendant’s federal drug conspiracy conviction because the conduct on which the federal conviction was based was not the “same act” on which the state charge relied. Zubke, 469 Mich at 84. Referring to the dictionary definition of “act,” the Court reasoned that the state’s prosecution would be barred if the “thing done” or “deed” giving rise to the federal conviction was the same “thing done” or “deed” on which the state charge was based. Id. The Zubke Court concluded that the “thing done” for federal purposes was the conspiracy itself—the defendant’s agreement with others to possess and distribute cocaine. Id. For state purposes, however, the “thing done” was the defendant’s actual physical possession or control of the cocaine. Id. Ruling there was no double jeopardy violation, the Court stated simply: “[T]he act of possessing is not subsumed within the act of conspiracy, nor is the act of conspiring subsumed within the act of possessing.” Id. at 85 n 5.
The Zubke Court also overruled People v Avila (On Remand), 229 Mich App 247 (1998), which held that MCL 333.7409 precluded successive prosecutions when the offenses “arose out of the same acts.” Zubke, 469 Mich at 84-85, quoting Avila, 229 Mich App at 251 (emphasis added).
C.Caselaw Discussing Double Jeopardy in Controlled Substances Cases
Attempted delivery of controlled substances under Article 7 of the PHC is not prosecuted under the general attempt statute, MCL 750.92, because the definition of delivery for purposes of Article 7 of the PHC includes the “attempted transfer” of a controlled substance from one person to another. See MCL 333.7105(1); MCL 750.92. The general attempt statute, MCL 750.92, applies only “when no express provision is made by law” to adjudicate the attempted criminal conduct at issue. Id.
Where a trial court erroneously convicted the defendants of attempted cocaine delivery under the general attempt statute, double jeopardy barred the Court of Appeals from correcting the error by entering guilty verdicts against the defendants for delivery under MCL 333.7401. Wayne Co Pros v Recorder’s Court Judge, 177 Mich App 762, 765-766 (1989). In convicting the defendants of attempted delivery under MCL 750.92, the trial court “specifically found that there was insufficient evidence of an ‘attempt’ by the defendants to convict them of delivery of cocaine under [MCL 333.7401,]” effectively acquitting them of that offense. Wayne Co Pros, 177 Mich App at 765. “Any action on [the part of the Court of Appeals] which would effectuate a guilty verdict for delivery of cocaine would violate the constitutional prohibition against double jeopardy.” Id. at 766.
A defendant can be convicted of a substantive offense and conspiracy to commit that offense without violating double jeopardy principles. People v Carter (Alvin), 415 Mich 558, 569 (1982). See also People v Rodriguez, 251 Mich App 10, 18-19 (2002) (noting that “conspiracy and the underlying substantive offense are separate and distinct crimes”). Similarly, consecutive sentences for a controlled substance offense and conspiracy to commit that offense do not violate the prohibition against double jeopardy. People v Denio, 454 Mich 691, 709-710 (1997). In addition to the Legislature’s unambiguous intention to penalize both commission of the substantive offense and conspiracy to commit the offense even when the conduct occurs in the same criminal transaction, the offenses themselves violate different social norms and present to society the threat of differing degrees of danger. Id. at 710-711. Conspiracy is an ongoing offense until evidence demonstrates that the offender has abandoned or withdrawn from the criminal agreement to commit the substantive offense. Id. at 710-711. In contrast to the substantive offense committed, conspiracy is an offense intended to result in commission of the substantive offense the Legislature intended to prevent. Id. See also Rodriguez, 251 Mich App at 18-22 (summarizing cases where the Court “found no double jeopardy violation in successive prosecutions for drug offenses where the charges stemmed from multiple drug transactions”).
Where multiple conspiracies are charged, a defendant bears the initial burden of establishing a prima facie case in support of a double jeopardy claim by showing that the conspiracy charges at issue were similar and that there was a substantial overlap in the times at which each conspiracy took place. People v Mezy, 453 Mich 269, 277 (1996) (holding that the defendant met this burden). Once a defendant has satisfied the initial burden, the burden shifts to the government to show by a preponderance of the evidence why double jeopardy does not bar the prosecution. Id. To determine whether there is more than one conspiracy for purposes of double jeopardy, a trial court should consider the following factors:
•overlap in the times during which the conspiracies allegedly occurred;
•the identities of the individuals acting as coconspirators;
•the similarity of the statutory offenses charged in the indictments;
•the overt acts charged by the government; and
•the places where events alleged to be part of the conspiracies took place. Id.
3.Manufacturing Methamphetamine and Possession of Methamphetamine
Defendant’s conviction and sentencing for both manufacturing methamphetamine and possession of methamphetamine did not violate double jeopardy; applying the abstract legal elements test, “manufacturing methamphetamine requires proof that the defendant manufactured methamphetamine, while a conviction for possession of methamphetamine does not require proof of manufacturing,” and “possession of methamphetamine requires proof that the defendant possessed methamphetamine, while the manufacture of methamphetamine does not require proof of possession.” People v Baham, 321 Mich App 228, 246, 248, 250 (2017).
4.Operating a Methamphetamine Laboratory
The multiple punishments strand of the Double Jeopardy Clause prohibits multiple punishments for both operating/maintaining a methamphetamine laboratory and operating/maintaining a methamphetamine laboratory within 500 feet of a residence where those activities arise out of the operation of a single methamphetamine laboratory. People v Meshell, 265 Mich App 616, 631-632 (2005). Under the “same-elements” test, there exists a presumption that the Legislature did not intend multiple punishments because all the elements of one offense are contained in the elements of the other offense. Id. at 631. Further evidence that multiple punishments were not intended is found in the statutory language that provides for more severe punishment when the conduct prohibited under MCL 333.7401c—operating/maintaining a methamphetamine laboratory—occurs in certain locations or under certain circumstances (e.g., in the presence of a minor, involving possession or use of a firearm, etc.). Meshell, 265 Mich App at 632.
5.Possession and Possession With Intent to Deliver
The multiple prosecution strand of the Double Jeopardy Clause prohibits prosecution for possession followed by a subsequent prosecution for possession with intent to deliver where both prosecutions are based on the same criminal transaction because “conviction of a lesser charge is an acquittal of higher charges.” People v Head, 211 Mich App 205, 212 (1995). Accordingly, the defendant’s double jeopardy rights were violated where he was convicted of possession of marijuana in an earlier trial that was later reversed on evidentiary grounds, and the prosecution retried the defendant on the greater charge of possession with intent to deliver marijuana at a second trial based on the same criminal transaction. Id.
6.Possession of a Controlled Substance and Delivery of a Controlled Substance
“[T]he trial court [did not] violate[] [the defendant’s] constitutional right to be free from multiple punishments for the same offense [where] she was separately convicted and punished for both possession and delivery of [the same] heroin.” People v Dickinson, 321 Mich App 1, 10 (2017).
“The delivery offense required proof of the separate element of delivery of the heroin that the possession offense did not require[, and t]he possession offense required proof of the element of possession of the heroin that the delivery offense did not require.” Dickinson, 321 Mich App at 14. Accordingly, these two offenses “are separate and distinct.” Id. at 14 (applying “the abstract legal elements test articulated in [People v Ream, 481 Mich 223, 238 (2008)] to discern the legislative intent[,]” and noting the test requires consideration of “the abstract legal elements of the two offenses, rather than the facts of the case, in determining whether the protection against double jeopardy has been violated[]”). The Court acknowledged that “[w]hile this defendant may indeed have possessed the heroin before delivering it, the prosecution was not required to prove possession to convict her of delivery, or vice versa.” Dickinson, 321 Mich App at 15. “Consequently, defendant’s conviction of each offense, and the trial court’s sentencing of defendant separately for each offense, did not violate defendant’s rights under the Double Jeopardy Clauses of the federal and Michigan Constitutions.” Id. at 15.
7.Prisoner in Possession and Delivery
Convicting and sentencing a defendant for both being a prisoner in possession of a controlled substance, MCL 801.263(2), and delivery of marijuana, MCL 333.7401(2)(d)(iii), does not violate the multiple punishments strand of the Double Jeopardy Clause because each offense contains an element that the other does not. People v Williams (Robert), 294 Mich App 461, 470 (2011) (“[a]n individual need not be a prisoner to be convicted of delivery [of marijuana][] . . . [and] a person need not deliver a controlled substance to be a prisoner in possession [of a controlled substance][]”).
1 The Blockburger test “‘focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’” Nutt, 469 Mich at 576, quoting Iannelli v United States, 420 US 770, 785 n 17 (1975).