The Federal Public Defenders Office informed me today that the FBI will not return property seized from my home on the day of the raid (jan. 24, 2002). The property will be turned over to STATE authorities pending further investigation and possible prosecution. This is NOT Double Jeopardy. A person may be prosecuted twice for the same offense as long as the second proceeding takes place in a separate sovereign's court.
The Fifth Amendment clause, "nor shall any person be subject for the same offense to be twice put in jeopardy" proclaims a simple guarantee of freedom from multiple prosecutions for the same offense. Simple, that is, until the doctrine of "dual sovereignty" emerged during alcohol prohibition. Ever since the first application of the doctrine in 1922, legal scholars have strongly criticized the government's notion that a defendant whose conduct violates the laws of two sovereigns has "committed two different offenses by the same act." This legal fiction prevented state governments, many of which were unsympathetic to the federal government's liquor laws, from defeating the fed.'s ability to punish prohibition violators by bringing a sham prosecution or by imposing a minimal sentence.
The Supreme court, in effect, added the words, "by the same sovereign" to the end Double Jeopardy Clause. Framers of the Constitution never considered the possibility of this obstructive addition to the Fifth Amendment because the Constitution and its first ten amendments restricted the newly formed federal government from enacting types of laws that generally overlap the police powers of the states. In recent years, however, the vast expansion of the scope of federal laws resulted in an enormous number of crimes for which one may be subject to consecutive state and federal prosecutions.
I need your help. We need to file a motion for the return of the property. A motion would involve a court hearing and the prosecutor would be required to file a response to the court as to why they are not returning the property. This would provide me with the information that I need in order to begin planning a strategy to fight this. I can't rely on the FPD office to do this for me -- they represent their interests NOT Sherman's interests. Sherman needs an attorney who is willing to fight. We need to raise cash ASAP. If you can help with benefits, donations, or have suggestions, PLEASE reply.
Jennifer Martin Ruggiero