re: Andy McCarthy: Acosta’s sweetheart deal likely to foreclose Epstein’s SDNY prosecution

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Wrong, bruh. He talks about that under dual sovereignty

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As we’ve noted, it is true that there is Second Circuit authority for the proposition that a prosecutor’s agreement in one federal district is not necessarily binding on a prosecutor in another federal district. Yet there is not universal agreement on this point. And even in Second Circuit double-jeopardy jurisprudence, a conviction or acquittal in one district will bar a successive prosecution in another district for the same offense. It has never made sense to me that double-jeopardy principles protect a defendant who has been convicted or acquitted by a jury, but not one whose case has been disposed of by a plea or non-pros agreement with a prosecutor that has the same effect.

In any event, the Second Circuit authority will have to be reconsidered in light of the various opinions in Supreme Court’s recent Gamble decision. That case involved a federal prosecution following a state conviction for the same crime. As discussed in my aforementioned column, we reluctantly abide multiple prosecutions for the same misconduct, despite our double-jeopardy principles, only because the laws of two different sovereigns — state and federal — are implicated. Even though the crime may be the same (e.g., illegal possession of a gun), there are two separate offenses because an offense is the violation of each sovereign’s separate criminal code and jurisdiction.

While successive prosecutions by different sovereigns do not violate the letter of the Fifth Amendment, they are in tension with its double-jeopardy clause’s conception of fundamental fairness. Because of that, despite the dual-sovereignty doctrine, many states do not permit successive prosecutions if a person has already been tried by federal authorities or those of another state. That’s how seriously we take double jeopardy.

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