“Double Jeopardy” is Constitutional in a Dual Sovereignty Case

A trio of southern Utah residents are being charged twice for the same crime, otherwise known as double jeopardy, but since the charges stem from a dual sovereignty case it is considered constitutional.

Custody battle ends in murder

Photo by: Joe Gratz

Photo by: Joe Gratz

After years of custody battles between 30 year old David Heisler and 32 year old Kelley Marie Perry, Heisler was awarded sole custody of their 6 year old daughter Mariah. Less than two weeks later, prosecutors state Perry drove to Heisler’s residence with her friends 56 year old Francis (Frank) Lee McCard and 54 year old Tammy Renee Freeman. When Heisler answered the door, Perry and McCard physically assaulted him, dragged him from his house, then the trio drove him in his own vehicle to the Arizona desert where his lifeless body was discovered eight weeks later.

Utah, Arizona, and the Federal Government

Perry, McCard, and Freeman have been charged in Utah on felony kidnapping, theft, and burglary charges. Since the crime began in Utah and ended in Arizona, it is considered a dual sovereignty case. So not only do the three face charges in Utah, but the state of Arizona has filed their own charges including a repeated charge of felony kidnapping as well as first degree murder which could carry the death penalty. Not only are Utah and Arizona involved, McCard has been federally indicted and an indictment is pending for Perry as well. This means they may face even more repeated charges but at a federal level to boot.

Dual sovereignty case is not double jeopardy

dual sovereignty

Photo by: Ron Cogswell

While a dual sovereignty case may seem like a way to be repeatedly prosecuted for the same crime (double jeopardy), it does not violate a person’s Fifth Amendment rights to not “be subject for the same offense to be twice put in jeopardy of life or limb”. This is due to what is known as dual sovereignty doctrine, meaning that more than one state or court has authority over the case. Although occasionally one state or court will give up their jurisdiction as long as the defendant is facing charges somewhere. This is not always the case though and it is important to know when dual sovereignty may take place. Dual sovereignty due to a multi-jurisdictional case can occur for a few different reasons. Those can include:

• When the crime occurs in more than one state. For example, the David Heisler murder which took place in both Utah and Arizona. This is also a common for crimes such as drug and sex trafficking.

• If there are civil and criminal charges, as they are not handled by different courts.

• When there are both state and federal charges. Both the state and the federal government can press charges in some cases. When this happens, the federal charges do not dissolve the charges from the state. This can result in someone serving time in federal prison followed by state prison or vice versa.

• If the crime occurred in a different state from whence the defendant or victim resides. This is a common occurrence with crimes involving identity theft such as fraud.

• If more than one federal court has filed charges against the defendant.

Defense lawyer(s) needed

When it comes to a dual sovereignty case, a person facing charges needs more help than usual. It is important to speak with an experienced criminal defense attorney who can work to help eliminate dual sovereignty in a case or who is willing and able to operate across state lines or work side by side with legal representation in other states or federal courts where other or repeated charges may exist. Anyone facing charges that may involve more than one state or court should speak with a defense attorney immediately.

Flying under the Influence in Utah

A pilot from Utah was recently arrested for flying under the influence (FUI?) after he attempted to fly a commercial passenger plane with blood alcohol content over the legal flying limit.

A tipsy pilot

Flying Under the Influence

Photo by: Cory W. Watts

38 year old Russel Duszak from Salt Lake City was arrested for flying under the influence after airport personnel detected a strong odor of alcohol from Duszak nearly 30 minutes prior to his flight from South Dakota to Utah. Authorities did not state the exact blood alcohol content of Duszak, only affirming that it was over the .04 limit for pilots.

Flying under the influence in Utah

Utah Code 72-10-50 states: “A person may not operate or be in actual physical control of an aircraft within this state if the person:
(i) has sufficient alcohol in his body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .04 grams or greater at the time of the test;
(ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating an aircraft; or
(iii) has a blood or breath alcohol concentration of .04 grams or greater at the time of operation or actual physical control.”
Any person convicted of flying under the influence is guilty of a class B misdemeanor or class A misdemeanor if someone was injured during the drunken flight.

In control of the plane

Some may argue that Duszak cannot be arrested for flying under the influence as he was technically not flying the plane, seeing how passengers hadn’t even boarded yet. This may be true however when it comes to DUI’s, a driver does not need to be driving a vehicle intoxicated to get a DUI- they only need to be in control of the vehicle. 30 minutes prior to takeoff, there was a high likelihood that Duszak was in the cockpit, in control of the plane. Additionally, federal regulations prohibit any pilot from consuming alcohol eight hours before a flight. So either way he would be facing charges whether state, federal, or both.

Conspiracy to Impede an Officer

25 individuals including one man from Manti Utah were arrested and charged with conspiracy to impede an officer for their involvement in the standoff of the Malheur National Wildlife Refuge in southeast Oregon.

Protesting a reimprisonment of ranchers

Photo by: Sam Beebe

Photo by: Sam Beebe

Just after New Year’s Day 2016, nearly 300 people peacefully marched down the streets of Burns Oregon. They were protesting the reimprisonment of two cattle ranchers, father and son Dwight Hammond Jr. and Steven Hammond. Dwight and Steven were sent to prison in 2012 for arson after on two separate occasions they started fires on federal land that their own land bordered. Although they served the time that they were originally sentenced to, federal prosecutors chose to appeal the sentencing, claiming they hadn’t spent enough time behind bars to fit their crime. The 73 year old father and his 46 year old son were each resentenced to five years in prison with credit for time served.

Taking things too far

Following the quiet demonstration in Burns Oregon, a group of protesters claiming to defend the Hammons armed themselves and broke off from the crowd. They headed to the Malheur National Wildlife Refuge, the bird and wildlife sanctuary that surrounded the Hammond farm and is blamed for taking over the natural water sources for that area. The group occupying the refuge headquarters demanded that the father and son Hammond be released of their new sentencing, and that all federal land along with water rights be given back to the people. More militia were recruited, while threats of violence and civil unrest were voiced on social media, alarming federal employees who were unable to return to work.

Freedom to peaceably assemble

Photo by: Ed Uthman

Photo by: Ed Uthman

According to the First Amendment to the Constitution of the Unites States: “Congress shall make no law (. . . ) prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Every American citizen has the right to speak up or protest, as long as it is done so calmly and without threat or harm to those around them. A respectable march is legal and protected by the constitution. Conspiring to take over a federal building and impede an officer by obstructing federal employees who are attempting to carry on with their required duties is against the law.

Conspiracy to impede an officer

18 U.S. Code 373 states: “If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.”

Hammonds due to be released before conspirators

Conspiracy to Impede an Officer

Photo by: DonkeyHotey

Unfortunately, if any of the 25 indicted for conspiracy to impede an officer serve the full sentencing possible for the charges, they wouldn’t be set to be released until well after Dwight and Steven Hammond had served their new sentencing terms. The prison time for those conspirators would exceed the prison time of those they were attempting to protect. Even if the charges are dropped, those 25 individuals are going to be less likely to proceed with their “petition the government for a redress of grievances” regarding the Hammonds until after their own court proceedings are completed. When protesting an unjust act of law, it is important to follow the rules regarding demonstrations and fully understand what allowances the First Amendment gives American citizens regarding freedom of speech and assembly.