bartkus illinois argued november decided march petitioner tried acquitted federal district violation makes crime rob federally insured bank substantially evidence later tried convicted illinois state violation illinois robbery statute held cooperation federal law enforcement officers illinois officials violate double jeopardy clause fifth amendment pp fourteenth amendment impliedly extend first eight amendments pp illinois prosecution violation penal law prior acquittal federal offense substantially evidence violate due process clause fourteenth amendment pp walter fisher acting appointment reargued cause filed brief rehearing petitioner william wines assistant attorney general illinois reargued cause respondent brief rehearing latham castle attorney general justice frankfurter delivered opinion petitioner tried federal district northern district illinois december robbery federally insured savings loan association general savings loan association cicero illinois violation case tried jury resulted acquittal january illinois grand jury indicted bartkus facts recited illinois indictment substantially identical contained prior federal indictment illinois indictment charged facts constituted violation illinois revised statutes robbery statute bartkus tried convicted criminal cook county sentenced life imprisonment illinois habitual criminal statute rev illinois trial considered rejected petitioner plea autrefois acquit ruling alleged errors challenged illinois affirmed conviction granted certiorari petition raised substantial question concerning application fourteenth amendment january judgment affirmed equally divided may granted petition rehearing vacated judgment entered january restored case calendar reargument state federal prosecutions separately conducted true agent federal bureau investigation conducted investigation behalf federal government turned illinois prosecuting officials evidence gathered petitioner concededly evidence gathered acquittal federal connection two trials found suggestion federal sentencing accomplices testified petitioner trials purposely continued federal testified state trial record establishes prosecution undertaken state prosecuting officials within discretionary responsibility basis evidence conduct contrary penal code illinois occurred within jurisdiction establishes also federal officials acted cooperation state authorities conventional practice two sets prosecutors throughout country support claim state illinois bringing prosecution merely tool federal authorities thereby avoided prohibition fifth amendment retrial federal prosecution acquittal sustain conclusion state prosecution sham cover federal prosecution thereby essential fact another federal prosecution since new prosecution illinois federal government claim unconstitutionality must rest upon due process clause fourteenth amendment prior cases relating successive state federal prosecutions concerned fifth amendment scope proscription second prosecutions federal government fourteenth amendment effect state action called upon draw considerations guided applying limitations fourteenth amendment state powers held beginning uniformly due process clause fourteenth amendment apply provisions first eight amendments relevant historical materials canvassed legal scholars materials demonstrate conclusively congress members legislatures ratifying contemplate fourteenth amendment incorporation first eight amendments making applicable explicit restrictions upon evidencing interpretation congress fourteenth amendment comparison constitutions ratifying federal constitution regard grand jury guarantee fifth amendment criminal jury guarantee sixth amendment civil jury guarantee seventh amendment apparent first eight amendments applied verbatim ten thirty ratifying impliedly imposing upon constitutional requirements vital issues state policies contrary present constitutions approach matter different way covertly altering provisions constitutions disregard amendment procedures required constitutions five undertaking procedures conflict required constitutions thus fifteen ratifying constitutions explicit accord provisions fifth sixth seventh amendments fifteen four made alterations constitutions brought important conflict one provisions federal constitution one whose constitution included provision one three procedures investigation adopted provision inconsistent federal constitution eleven thirty ratifying explicit accord provisions first eight amendments federal constitution four silent one provisions fifteen open conflict provisions similarly imposing evidence understanding due process clause supplied history admission twelve entering union ratification fourteenth amendment case congress required state constitution repugnant constitution one constitutions twelve contains three procedures relating grand jury criminal jury civil jury fact twelve provisions obviously different requirements fifth sixth seventh amendments yet case admission either president congress found constitution conformity enabling act constitution warrant believe adopting constitutions specific purpose complying requisites admission fact evading demands constitution surely compels conclusion congress always believed due process clause brought play basis restrictions upon undisclosed incorporation original eight amendments hurtado california considered due process historical setting reviewed development concept law time magna carta time adoption fourteenth amendment concluded intended flexible concept responsive thought experience experience reflected solid body judicial opinion manifesting deep convictions unfolded process inclusion exclusion davidson new orleans time attempted general phrases define indicate purport due process adumbrate continuing adjudicatory process application statement justice cardozo palko connecticut especially commended frequently cited later opinions referring specific situations wrote situations immunities valid federal government force specific pledges particular amendments found implicit concept ordered liberty thus fourteenth amendment become valid decisions concerning application due process clause reveal necessary process balancing relevant conflicting factors judicial application clause chambers florida held state conviction murder void based upon confession elicited applying methods defendant also held second execution necessitated mechanical failure first attempt violation due process louisiana ex rel francis resweber decisions due process clause require close perceptive inquiry fundamental principles society system law based upon transcendental revelation upon conscience society ascertained best may tribunal disciplined task environed best safeguards disinterestedness detachment constitutional challenge successive state federal prosecutions based upon transaction conduct new question though presented conspicuous ability fifth amendment proscription double jeopardy invoked rejected twenty cases real hypothetical successive state federal prosecution cases lanza first case squarely held valid federal prosecution arising facts basis state conviction validity prosecution federal government questioned since opinion fox ohio one hundred years ago fox ohio argument made ohio conviction uttering counterfeit money invalid assertion invalidity based large part upon argument since congress imposed federal sanctions counterfeiting money failure find supremacy clause precluded punishing related conduct expose individual double punishment justice daniel writing justice mclean dissenting recognized true possibility double punishment denied flowed finding concluding instead federal state governments retained power impose criminal sanctions interest protecting purity currency interest protecting citizens fraud eight state cases decided prior fox courts seven discussed validity successive state federal prosecutions three missouri north carolina virginia said plea bar prevent second prosecution discussions two cases south carolina conflict earlier opinion expressing belief bar later without acknowledging disagreement first denying availability plea bar three vermont massachusetts michigan courts stated prosecution one government bar prosecution another government crime based conduct persuasiveness massachusetts michigan decisions somewhat impaired precedent upon relied reasoning case cited massachusetts michigan cases houston moore wheat language effect bar second prosecution different government language justice washington reflected belief state statute imposed state sanctions violation federal criminal law viewed matter two trials similar crimes arising conduct crime justice johnson agreed state courts become empowered try defendant federal offense state trial bar federal prosecution thus houston moore cited presence bar case second trial violation statute whose violation conduct already tried courts another government empowered try question significance historical background decisions prior fox taking position favorable advocates bars autrefois acquit autrefois convict cases like totally inconclusive conflicting opinions concerning applicability plea bar may manifest conflict conscience certainly manifest agreement permit successive state federal prosecutions different crimes arising acts repugnant standards outlawry offend conception due process outlined palko worth noting palko sustained first degree murder conviction returned second trial appeal state acquittal first degree murder early state decisions clarified issue stating opposing arguments process response fifth amendment challenge begun fox ohio continued marigold completed moore illinois justice grier writing moore illinois gave definitive statement rule evolving offence legal signification means transgression law every citizen also citizen state territory may said owe allegiance two sovereigns may liable punishment infraction laws either act may offence transgression laws either may see fit punish offender doubted yet truly averred offender twice punished offence one act committed two offences justly punishable plead punishment one bar conviction ibid lower federal courts course accord although cited follow decisions others manifest reflection upon issues involved express reasoned approval principle barnhart oregon circuit presented case obverse present one prior trial acquittal state subsequent trial federal circuit rejected defendant plea autrefois acquit saying hardship second trial might operate persuade bringing subsequent prosecution bar experience state courts dealing successive prosecutions different governments obviously also relevant considering whether illinois prosecution bartkus violated due process law considered validity successive state federal prosecutions challenge violation either state constitutional provision evidentiary rule autrefois acquit autrefois convict refused rule second prosecution barred bound follow interpretation fifth amendment rules constitutional statutory common law bound drew upon experience fifth amendment separate independent authority state cases manifest careful reasoning language concerning double jeopardy offhand dictum array state cases may found full consideration arguments supporting denying bar second prosecution courts interpreted rules proscribing second prosecution first different government violation different statute body precedent irrefutable evidence state federal courts years refused bar second trial even though prior trial another government similar offense disregard long unbroken unquestioned course impressive adjudication rule due process compels bar practical justification rejecting reading due process also commends aid interpretation fourteenth amendment screws defendants tried convicted federal federal statutes maximum sentences year two years respectively state crime involved capital offense federal prosecution comparatively minor offense prevent state prosecution grave infraction state law result shocking untoward deprivation historic right obligation maintain peace order within confines derogation federal system displace reserved power state offenses reason prosecution minor federal offenses federal authorities beyond control recent suggestions constitution reality deft device establishing centralized government without factual justification fly face history accurately shown men wrote constitution well citizens member confederation fearful power centralized government sought limit power justice brandeis written separation powers adopted constitution promote efficiency preclude exercise arbitrary power time lessened concern founders devising federal system likewise safeguard arbitrary government greatest necessary federal system yields results little sympathy entire history litigation contention question imposition bar second prosecution government one first prosecuting manifestation evolutionary unfolding law today number statutes bar second prosecution defendant tried another government similar offense study cases new york statute typical laws demonstrates task determining federal state statutes much alike prosecution former bars prosecution latter difficult one proper solution problem frequently depends upon judgment gravamen state statute depends also upon understanding scope bar historically granted state prevent successive state prosecutions problems ones obviously competent deal furthermore rules resulting intimately affect efforts state develop rational body criminal law protection citizens utilize fourteenth amendment interfere development finally experience new york may give aid congress consideration adoption similar provisions individual federal criminal statutes federal criminal code precedent experience reason alike support conclusion alfonse bartkus deprived due process law state illinois affirmed dissenting opinion justice brennan see post footnotes number cases state attorney office cooperating federal authorities particularly narcotics cases connection federal government first authority handling narcotics criminal organization see people going town criticizing county cook city chicago police state attorney judges cooperating federal authorities giving proof fact since take lead must negligent duties particularly glad see case federal authorities came state attorney cooperating federal authorities cooperating us statements city effect fact federal authorities county sign breakdown law enforcement cook county utter nonsense federal authorities duties duties duty illustration glad continue cooperate federal authorities give first play duty narcotics take duty calls us carry burden hurtado california kemmler maxwell dow twining new jersey palko connecticut adamson california fairman fourteenth amendment incorporate bill rights original understanding stan rev see appendix post detailed provisions constitutions ratifying later admitted union correspond federal guarantees fifth sixth seventh amendments cf fox ohio ruling fifth amendment read applying justice daniel wrote neither probable credible anxiously insisted ingraft upon federal constitution restrictions upon authority see stat see stat see leland oregon rochin california bute illinois deemed relevant discussion problem consider dubious english precedents concerning effect foreign criminal judgments ability english courts try charges arising conduct dubious part confused inadequate reporting case much based see varying versions rex hutchinson found beak thyrwhit mod eng reported beake tyrrell show eng beake tirrell comberbach eng burrows jemino strange eng reported burroughs jamineau mos eng burrows jemineau sel cas eng burrows jemineau eq ca abr burrows jemino eng explained gage bulkeley ridg cas eng precedents dubious also reflect power discretion vested english judges relevant constitutional law federalism mattison state mo state brown hendrick commonwealth leigh state antonio treadway const state tutt bailey state randall aikens commonwealth fuller metcalf mass harlan people douglass justice story dissenting opinion houston moore wheat displays dislike possibility multiple prosecutions also suggests possibility circumstances state acquittal might bar federal prosecution cruikshank coleman tennessee ex parte siebold arjona cross north carolina loney pettibone crossley california sexton california matter heff grafton ponzi fessenden herbert louisiana westfall puerto rico shell jerome screws westfall chapter handbook interstate crime control book prepared interstate commission crime gordon dean special executive assistant attorney general wrote mention also made national bank robbery statute statute punishes robberies national banks banks members federal reserve system banks funds insured federal deposit insurance corporation usurpation federal government still may prosecute robbery bank within jurisdiction frequently several cases last years men convicted state federal law robbing bank fact cases men tried law one jurisdiction acquitted facts tried law sovereignty convicted bank robbers know today flight valuable weapon operation national bank robbery statute proved quite impotent bank robbery rate cut half fine relation state federal agencies apprehension trial bank robbers mckinney landon cir morris cir vandell cir levine cir serio cir jolley cir smith cir rios cir amy fed cas given fed cas del barnhart palan wells fed cas casey ohio holt dak morgan supp iowa mandile supp many prohibition cases lower federal courts holt included inclusion meant represent body cases particularly justified careful reasoning concerning entire question dual sovereignties double jeopardy believed list contains nonprohibition cases lower federal courts discussing favoring rule trial one jurisdiction bar prosecution another different offense arising act three lower federal cases found questioning validity rule ex parte houghton stubbs wash candelaria supp denying bar arizona henderson state despite limited statutory bar holding successive federal state prosecutions permitted one possession transportation arkansas state duncan ark california people mcdonnell cal people candelaria cal app people candelaria cal app two candelaria cases indicate california statutory bar statute kind discussed prevents state robbery prosecution federal robbery prosecution state burglary prosecution circumstances georgia scheinfain aldredge bryson state app illinois hoke people indiana heier state ind dashing state ind iowa state moore iowa kentucky hall commonwealth louisiana state breaux la aff per maine see state gauthier massachusetts commonwealth nickerson mass michigan illova minnesota state holm missouri january mo new hampshire state whittemore new jersey state cioffe new york people welch north carolina see state brown oregon state frach pennsylvania see commonwealth ex rel burke super south carolina state tutt bailey tennessee state rhodes state rankin coldw vermont state virginia jett commonwealth gratt washington state kenney west virginia state holesapple see moundsville fountain wyoming see murphy wyo state raising bar illinois additional unique interest bartkus beyond commission particular crime bartkus guilty crime charged habitual offender illinois subject life imprisonment illinois sentenced bartkus life imprisonment ground myers dissenting opinion fifteen statutes listed tentative draft american law institute model penal code penal code code crim proc people ex rel liss superintendent women prison people mangano app div dept aff sub nom people mignogna people spitzer misc sup people parker misc kings county people eklof misc richmond county people adamchesky misc county specific instances congress included provisions prevent federal prosecution state prosecution based upon similar conduct see burglary vehicle transportation carrying interstate foreign shipments justice black chief justice justice douglas concur dissenting petitioner bartkus indicted district bank robbery tried jury acquitted far appears trial conducted fairly able conscientious judge later bartkus indicted illinois state bank robbery time convicted sentenced life imprisonment acquittal federal barred second trial provision fifth amendment person shall subject offence twice put jeopardy life limb today rejects bartkus contention state conviction federal acquittal violates fourteenth amendment constitution agree holding limits already weakened constitutional guarantees double prosecutions lanza decided allowed federal conviction punishment man previously convicted punished identical acts one today first time history upholds state conviction defendant acquitted offense federal courts hold federal trial following either state acquittal conviction barred double jeopardy clause fifth amendment abbate post dissenting opinion quite apart whether clause fully binding federal government see adamson california dissenting opinion hold bartkus conviction stand think double prosecutions offense contrary spirit free country violate even prevailing view fourteenth amendment expressed palko connecticut fourteenth amendment said palko make specific guarantees bill rights applicable noted privileges immunities bill rights taken brought within fourteenth amendment process absorption indicated incorporated due process principle justice rooted traditions conscience people ranked fundamental held statute allowing state appeal criminal case violate fundamental principles expressly left open question whether state permitted trial free error try accused question substantially us today fear abhorrence governmental power try people twice conduct one oldest ideas found western civilization roots run deep greek roman times even dark ages many principles justice lost idea one trial one punishment enough remained alive canon law teachings early christian writers thirteenth century seems firmly established england came considered universal maxim common law surprising therefore principle brought country earliest settlers part heritage freedom recognized fundamental today found varying forms federal constitution jurisprudence constitutions every state well foreign nations fact described part advanced systems law one universal principles reason justice conscience cicero said one thing rome another athens one another future among nations writers explained opposition double prosecutions emphasizing injustice inherent two punishments act others stressed dangers innocent allowing full power state brought two trials basic recurring theme always simply wrong man brought danger offence principles deeply rooted traditions conscience people apparently takes position second trial act somehow less offensive one trials conducted federal government state looked standpoint individual prosecuted notion subtle grasp double punishment feared hurts less two sovereigns inflict one danger innocent emphasized danger surely less power state federal governments brought bear one man two trials one sovereigns proceeds alone case inescapably man forced face danger twice conduct without denying almost universal abhorrence double prosecutions nevertheless justifies practice name federalism seems misuse desecration concept federal union conceived created establish justice secure blessings liberty destroy bulwarks freedom justice depend therefore suspicious supposed requirements federalism result obliterating ancient safeguards shown nothing history union writings founders elsewhere indicate individual rights deemed essential state nation lost combined operations two governments given sound reason thinking successful operation dual system government depends slightest power try people twice act implicit reliance federalism premise failure allow double prosecutions seriously impair law enforcement state nation one jurisdiction might provide minor penalties acts severely punished accepting pleas guilty shield wrongdoers justice believe argument fails several grounds first place relies unwarranted assumption state nation seek subvert laws elsewhere persuasively argued civilized nations needed power try people second time protect even dealing foreign lands inconceivable constitutional south carolina prevails among nations strangers fail prevail us intimately bound political ties state antonio treadway const cf testa katt argument also ignores fact constitution allocates power local federal governments way basic rights protected without double trials federal government given power act limited areas matters properly within scope retain exclusive control matters grant concurrent power terms subvert federal laws areas imposing inadequate penalties congress full power protect national interest either defining crime punished establishing minimum penalties applicable state federal courts excluding altogether conversely purely local matters power exclusive state courts therefore protect essentially local interests one trial without federal interference cf rutkin dissenting opinion areas however constitution vested power federal government necessarily act extent congress permits infringement basic rights congress chooses fix penalties smaller might wish fact rarely occur congress likely use indirect means limit state power accomplish result directly field ultimately reliance federalism amounts notion somehow one act becomes two two jurisdictions involved hawkins pleas crown long ago disposed similar contention made justify two trials offense different counties mere fiction construction law shall hardly take place maxim made favour life discarded dangerous fiction discarded dangerous fiction bolster argument successive state federal prosecutions violate basic principles justice cites many cases begins eight early state decisions says clarified issue stating opposing arguments four cases held prosecution one government must bar subsequent prosecutions elsewhere two remaining four refused hold concurrent jurisdiction exist since feared holding might bring two trials offense result considered shocking tolerate natural justice said north carolina superior therefore believe law seventh case cited inconclusive discussion coming state whose highest previously stated unequivocally bar double prosecutions exist thus early state cases actually approves doctrine today advances approval dicta significantly highest state later expressed view double trials virtually never occur country relies mainly however later line decisions starting fox ohio like fox involved question whether state federal governments make conduct crime although dicta admitted possibility double prosecutions might result concurrent power others discuss question many especially among earlier cases pointed double punishment violates genius free country therefore never occur chief justice taney circuit said one yet civilized countries recognized fundamental principle justice man punished twice offence party punished state tribunal felt duty suspend sentence represent facts president give opportunity granting pardon limited number cases fox cited double conviction upheld several second troubled result nominal sentences imposed fact lanza upheld encouraged practice cases actual double punishment found relation great mass criminal cases decided one readily discern instinctive unwillingness impose hardships defendants despite exhaustive research cited three cases lanza new trial acquittal upheld one barnhart state defendant acquitted jurisdiction action federal circuit relied lack jurisdiction allowing retrial made alternate holding based general arguments used today barnhart opinion also intimated first trial may sham sham trials well courts without jurisdiction considered courts commentators jeopardy might therefore bar subsequent convictions second case cited state conviction followed acquittal federal time state seemed recognize military trial thought many trial purpose double jeopardy even trials conducted sovereign third case relied decision state washington one three fairly said defendant acquitted proper jury trial subsequently tried jury convicted one may think infer fewness cases retrials acquittal considered particularly obnoxious worse even eyes many retrials conviction doubt fact many practices found violate due process boast little actual support yet meager basis must ultimately rest finding bartkus retrial violate fundamental principles rooted traditions conscience peoples scattered dubious cases unchallenged balanced firm holding sustaining extremely narrow construction federal statute order make state acquittal conclusive federal courts thereby avoid evil approved today mason case well sacred duty maintain unimpaired securities personal rights individual received ages sanction jurist statesman ex parte lange wall make us doubly hesitant encourage blatant violation constitutional policies double trials giving illiberal construction words fundamental law embodied ibid since lanza people apparently become accustomed double trials deemed shocking might time adjust violations bill rights sanctioned therefore able find state case well four federal cases last five years conviction following acquittal sustained thus practice years considered undesirable must strain find examples likely become commonplace today able blame conscientious prosecutor failing accept jury verdict acquittal believes defendant guilty knows second try available another jurisdiction second try approved highest land inevitably victims double prosecutions often poor weak society individuals without friends high places influence prosecutors try power try second time used similar procedures make scapegoats helpless political religious racial minorities differ conform resist tyranny see chambers florida countries allow dangerous practice trying people twice inserting recent news item man tried convicted sentenced prison tried convicted sentenced death similar examples hard find lands torn revolution crushed dictatorship thought constitutional protections embodied double jeopardy due process clauses barred things happening unfortunately last year holdings ciucci illinois hoag new jersey today affirmance convictions bartkus abbate cause fear important number cases happen reverse participated holding opinion palko since expressed disagreement justice douglas adamson california dissenting opinion see also rochin california concurring opinion hoag new jersey dissenting opinion expressed thought various ways crucial principles termed implicit concept ordered liberty without impossible maintain fair enlightened system justice ibid without neither liberty justice exist fundamental principles liberty justice lie base civil political institutions whose absence creates hardship acute shocking polity endure see bonner lawyers litigants ancient athens potter grecian antiquities radin roman law sherman roman law modern world ed berner non bis idem archiv fur preussisches strafrecht digest justinian digest translated scott civil law governor permit person accused crime acquitted canon law opposition double trials stemmed reading given jerome nahum douay version shall rise double affliction king james version nahum given affliction shall rise second time jerome drew rule god punish twice act see migne patrologia latina maxim found way church canons early subsequently given even god judges twice act see brooke english church papacy maitland collected papers fisher ed essay henry ii criminous clerks pollock maitland history english law ed poole domesday book magna carta see also berner op supra note emphasizing roman antecedents canon law rule see bracton de legibus et consuetudinibus angliae ed applying concept even acquittals trial battle cf hawkins pleas crown ed staundeforde les plees del corone rev ed twelfth century avoidance double punishment major element celebrated controversy thomas becket king henry ii henry wanted clerics convicted crimes church courts turned lay tribunals punishment whether becket fact correct assertions henry proposals result double punishment clerics much debated historians events henry plan abandoned becket murder see brooke op supra note maitland op supra note pollock maitland op supra note poole op supra note cooley blackstone ed see also staundeforde op supra note lambert crompton dalton manuall analecta rev ed coke institutes ed hawkins op supra note one commentator stated concept borrowed english law canon law doctrine criminal procedure radin legal history exception made rule statute dealing authority star chamber hen time criminal proceedings brought two ways government indictment parties suffered injury crime hen provided death murder cases defendant acquitted attainted government prosecution tried charges brought wife next heir slain act apparently never broadened given extremely narrow construction see hawkins op supra note see also staundeforde op supra note soon fell disuse legal profession greatly shocked statute relied justify retrial defendant previously acquitted many maneuvers included upholding defendant right trial battle second acquittal obtained loophole universal rule double trials formally plugged parliament see radin legal history kirk jeopardy period year books rev errata body liberties massachusetts clause reads man shall twise sentenced civil justice one crime offense trespasse see also laws liberties massachusetts farrand ed everie action criminal causes shall entred rolls everie actions afterwards brought vexation man similarly pleas former conviction acquittal recognized colonial virginia scott criminal law colonial virginia see ex parte lange wall green majority dissenting opinions commonwealth olds litt state cooper five recognize principle constitutions five prohibits double jeopardy part common law see brock north carolina dissenting opinion american law institute double jeopardy maxim non bis idem found throughout civil law see batchelder former jeopardy rev see also berner non bis idem archiv fur preussisches strafrecht kussner non bis idem donnedieu de vabres droit criminel ed codice di procedura penale art ludus ed cf radin legal history american law institute double jeopardy introductory note batchelder former jeopardy rev see ex parte lange wall see commonwealth olds litt state cooper tucker constitution hawkins op supra note see also grant lanza rule successive prosecutions rev grant successive prosecutions state nation rev developments law conspiracy harv rev cf feldman dissenting opinion knapp schweitzer dissenting opinion england doctrine foreign acquittal good plea bar seems antedate american revolution see rex hutchinson reported beak thyrwhit mod eng burrows jemino str eng compare report case gage bulkeley ridg eng rex roche leach eng cf rex thomas sid eng lev eng keb eng hawkins op supra note see also rex aughet cox halsbury laws england ed see hines davidowitz cf weber significantly lanza involved situation argument may slight validity case concerned prohibition violation eighteenth prohibition amendment taken established area concurrent state national power federal government see pennsylvania nelson hawkins op supra note see also staundeforde op supra note state antonio treadway const state randall aikens harlan people doug commonwealth fuller met mass state brown see also mattison state mo state tutt bailey compare state antonio treadway const hendrick commonwealth leigh jett commonwealth gratt see state duncan ark dashing state ind state gauthier commonwealth nickerson mass state holm state whittemore state frach commonwealth ex rel burke super jett commonwealth gratt see also state tutt bailey state brown dicta course found runs holding see nielsen oregon said act prohibited punishable laws one first acquiring jurisdiction person may prosecute offense judgment finality one convicted acquitted courts one state prosecuted offense courts furlong wheat robbery seas within criminal jurisdiction nations doubt plea autre fois acquit good civilized state though resting prosecution instituted courts civilized state amy fed cas see also fox ohio unites wells fed cas jett commonwealth gratt see palan punish man twice offense shocks sense justice see also holt also relies cases arising since lanza fear holding caused tight construction federal laws avoid double prosecutions see jerome screws cf pennsylvania nelson cases hardly thought approve result sought avoid case involved killing indian white men indian reservation said defendants never tried offense charged indictment either state tried jurisdiction premises proceeding set forth pleas nullity offense law state correct belief state jurisdiction see williams lee decision demurrer plea former acquittal appear whether federal jury convicted noted white man ever hung killing indian indian tried killing white man ever escaped gallows see ball edwards commonwealth cf mason see also hawkins op supra note state rankin cold rankin cited account federal following acquittal florida territorial courts similarly cashiel fed cas upheld federal prosecution following prosecution military authorities state kenney see commonwealth olds litt state cooper see also iowa art mich art ii mo art pt first art art art tex art federal bill rights course differentiate retrials acquittal retrials conviction banned new jersey cioffe serio jolley smith rios new york times october carried following item moscow date line stilyag sentenced death following public protests original ten term imposed killing militiaman robbery lenient newspaper komsomolskaya pravda said today condemned youth victor shanshkin leader gang four youths tried break moscow store last may according newspaper young communist organization pumped seven bullets militiaman tried prevent robbery four escaped later arrested sentenced prison terms ranging ten years sentences aroused widespread public protests second trial held recently shanshkin sentenced die three years age ordered serve prison terms ranging ten twenty years bartkus tried acquitted federal district robbing federally insured savings loan association cicero illinois indicted robbery state illinois less three weeks later subsequently convicted sentenced life imprisonment single issue dispute trials whether bartkus third participant robbery along two perpetrators crime government case bartkus federal trial rested primarily upon testimony two robbers joseph cosentino james brindis confessed part crime testified bartkus confederate defense bartkus getting haircut barber shop several miles away time robbery committed owner barber shop son witnesses placed bartkus shop time federal jury acquitting bartkus apparently believed alibi witnesses cosentino brindis federal authorities highly displeased jury resolution conflicting testimony trial judge sharply upbraided jury verdict see remarks printed vasen dissenting opinion federal authorities obviously decided immediately trial make second try convicting bartkus since federal courthouse barred fifth amendment turned state prosecution purpose clear federal officers solicited state indictment arranged assure attendance key witnesses unearthed additional evidence discredit bartkus one alibi witnesses general prepared guided state prosecution thus state attorney stated state trial particularly glad see case federal authorities came see state attorney illinois conceded commendable candor oral argument federal officers instigate guide state prosecution actually prepared case indeed state argued case basis record showed matter fair inference case one federal officers bring attention state prosecuting authority commission act furnish provide evidence defendant guilt think record us shows extent participation federal authorities constituted state prosecution actually second federal prosecution bartkus federal jury acquitted bartkus late december early january assistant attorney prosecuted federal case summoned cosentino office present also fbi agent investigated robbery assistant state attorney cook county later prosecuted state case assistant state attorney said cosentino look going get indictment state bartkus testify cosentino agreed later brindis also agreed testify although pleaded guilty federal robbery charge august federal district postponed sentencing testified bartkus state trial held april record disclose sentences imposed testified state trial whether sentences yet imposed cosentino brindis also released bail pending state trial brindis recognizance january also fbi agent active federal prosecution purposefully set strengthening proofs sufficed convict bartkus federal trial frankly admitted securing information federal government although gathered gone state authorities january efforts agent singularly successful may well tipped scales favor conviction uncovered new witness bartkus one grant pursel enlarged bail pending sentencing plea guilty indictment violation mann act pursel testified two weeks federal trial first part january fbi agent sought discuss alleged conversation pursel bartkus september jail awaiting respective federal trials pursel testimony state trial bartkus told participated robbery obviously damaging yet indicative attitude federal officials actually federal prosecution fbi agent arranged interview pursel state authority first time pursel contact whatsoever state official connected case morning testified case cosentino brindis pursel sentencing postponed testified bartkus state trial record disclose sentence imposed whether yet imposed also within month federal acquittal fbi agent sought operator barber shop placed bartkus shop time robbery barber testified federal state trials bartkus entered shop time robbery committed agent testified rebuttal witness state barber told january might bartkus entered shop significance federal participation prosecution evidenced assistant state attorney motion beginning trial granted defense objection permit fbi agent remain courtroom throughout trial although witnesses excluded although finding case apparently acknowledges certain circumstances necessary set aside state conviction brought federal authorities avoid prohibition fifth amendment second federal prosecution task determine much federal authorities must participate state prosecution infects conviction must set aside test submit must fashioned secure fundamental protection fifth amendment federal government resources power allowed make repeated attempts convict individual alleged offense thereby subjecting embarrassment expense ordeal compelling live continuing state anxiety insecurity green test based upon principles conviction stand allowing use federal resources bring second try bartkus denies bartkus protection fifth amendment assures given fact must always state officials involved state prosecution see complete federal participation state prosecution case see escape conclusion particular state trial actuality second federal prosecution second federal try bartkus guise state prosecution state conviction overturned practical matter restraints use state machinery federal officers bring effect second federal prosecution set aside state conviction infected constitutional violations federal officers implies condemnation state processes conviction set aside infirmities resulting fault state product unconstitutional federal action grasp merit argument protection federal oppression circumstances shown record violence principles federalism course cooperation federal state authorities criminal law enforcement desired encouraged cooperative federalism field indeed profit nation improving methods carrying endless fight crime normal healthy situation consists state federal officers cooperating apprehend lawbreakers present strongest case single trial state federal cooperation order permit federal government harass accused deny protection fifth amendment tolerated legitimate requirement federalism lesson history wrought fifth amendment protection taught us little shield may shattered reliance upon requirements federalism state sovereignty sustain transparent attempt federal government two tries convicting bartkus alleged crime happened simply federal effort failed federal courthouse renewed second time state courthouse across street content federal jury resolution conflicting testimony bartkus favor federal officers engineered second prosecution second try obtained desired conviction exactly kind successive prosecution federal officers fifth amendment intended prohibit declared principles clearly analogous situations think control rea held injunction issue federal agent transference illegally obtained evidence state authorities use basis state charge federal courts power defeat state prosecution force supervision federal officers surely federal courts power defeat state prosecution transparently employed federal authorities violation fifth amendment knapp schweitzer declared course federal government may take advantage autonomy order evade bill rights see also feldman cf byars principles require think set aside state conviction