State v. Robertson: Utah Code section 76-1-404 limits the dual sovereignty doctrine

“Section 404 requires courts to employ only the Blockburger–Sosa test for determining whether two offenses are the “same offense.” Under this test, two offenses are not the same if each requires proof of an element that the other does not.” State v. Robertson, 2017 UT 27.

Defendant Chris Robertson was prosecuted and convicted by the federal government for possession of child pornography. The State of Utah subsequently charged him with twenty counts of sexual exploitation of a minor based on the same conduct. Mr. Robertson argued that Utah Code section 76-1-404 prohibits this subsequent state prosecution. That statute states “[i]f a defendant's conduct establishes the commission of one or more offenses within the concurrent jurisdiction of this state and of another jurisdiction, federal or state, the prosecution in the other jurisdiction is a bar to a subsequent prosecution in this state if ... the former prosecution resulted in an acquittal, conviction, or termination of prosecution ...; and [ ] the subsequent prosecution is for the same offense or offenses.” The Court found that this statute bars a Utah prosecution if the defendant has already been prosecuted for the same offense in another jurisdiction. “Thus, the language operates as a limitation on the dual sovereignty doctrine, which permits a defendant to be prosecuted for the same offense in two or more jurisdictions so long as the prosecutions are conducted by different sovereigns.” In this case, the State could not prosecute Robertson because the prosecution was based on conduct that constituted the “same offense” for which he was convicted of federally.