United States v. Curtis J. Bernhardt and Carl J. Bernhardt

The government appeals the dismissal of an indictment against Curtis Bernhardt and Carl Bernhardt (the Bernhardts). The district court held that jeopardy had attached in a prior state criminal proceeding and that because the purpose of the federal indictment was to carry out a failed state prosecution, a narrow exception to the doctrine of dual sovereignty applied to bar the federal prosecution. We reverse the district court and remand for further proceedings.

FACTS AND PROCEEDINGS BELOW

In March 1984 the state of Hawaii charged the Bernhardts and several co-defendants with conspiracy and misapplication of bank funds. The Bernhardts successfully obtained a dismissal on statute of limitations grounds.

Shortly before the state court dismissed the case, Stephen A. Mayo, the Special State of Hawaii Deputy Attorney General for the case, contacted the United States Attorney for the District of Hawaii to express concern about the pending dismissal. Up until that point no federal agency had conducted an investigation into the matter. The U.S. Attorney agreed to undertake a federal prosecution with the express understanding that Mayo would become the lead attorney for the federal case…