1. Examples of Exceptions to Double Jeopardy
2. Further Defining Double Jeopardy Through Case Law

Double jeopardy is being tried twice for the same offense, and it's enforced by the 5th Amendment to the U.S. Constitution.

According to U.S. v. Halper, 490 U.S. 435, 440 (1989), "the Double Jeopardy Clause protects against three distinct abuses: [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."

Examples of Exceptions to Double Jeopardy

Separate punishments in multiple criminal prosecution are constitutionally permissible, however, if the punishments are not based upon the same offenses. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if "each provision requires proof of an additional fact which the other does not."

More recently, in U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993), the Court clarified the use of the "same elements test" set forth in Blockburger by overruling the "same conduct" test announced in Grady v. Corbin, 495 U.S. 508 (1990). The Court held that the Double Jeopardy Clause bars successive prosecutions only when the previously concluded and subsequently charged offenses fail the "same elements" test articulated in Blockburger.

See also Gavieres v. U.S., 220 U.S. 338, 345 (1911), which was an early precedent establishing that in a subsequent prosecution. The case noted that "[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other."

In U.S. v. Felix, 112 S.Ct. 1377 (1992), the Court held that "prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause." Additionally, Saccoccia, 18 F.3d at 798 states that "[a] substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes."

Further Defining Double Jeopardy Through Case Law

The Double Jeopardy Clause protects against multiple punishments for the same offense, as noted in Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306 (1984).

However, stretching the bounds of logic, the courts have decided that since the state and federal governments are separate sovereigns. Therefore, successive prosecutions based on the same underlying conduct do not violate the Double Jeopardy Clause if the prosecutions are brought by separate sovereigns. For an example, see U.S. v. Koon, 34 F.3d 1416, 1438 (9th Cir.'94).

But, double jeopardy may exist if the federal prosecutors were mere "tools" of the state or if the federal proceeding was a "sham" carried out at the behest of the state, according to Koon, at 1438.

Close coordination between state and federal authorities, including "the employment of agents of one sovereign to help the other sovereign in its prosecution," does not implicate the Double Jeopardy Clause, according to U.S. v. Figueroa-Soto, 938 F.2d 1015, 1020 (9th Cir.'91), cert. denied, 502 U.S. 1098 (1992); accord U.S. v. Paiz, 905 F.2d 1014, 1024 (7th Cir.'90), cert. denied, 499 U.S. 924 (1991).

In this case, the fact that "an Indiana prosecutor was later designated a Special Deputy United States Attorney for purposes of a federal prosecution" was insufficient to establish a sham prosecution. Nor is a county's possible pecuniary interest in a federal proceeding sufficient to transform the federal government into a mere "tool" of the county.