                                                                                            FILED
                                                                                      08/22/2017, 10:50 am

                                                                                            CLERK
                                                                                       Indiana Supreme Court
                                                                                          Court of Appeals
                                                                                            and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Patrick J. Smith                                          Curtis T. Hill, Jr.
      Bedford, Indiana                                          Attorney General of Indiana
      Trent Thompson                                            Jodi Kathryn Stein
      Salem, Indiana                                            Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Amanda Dill,                                              August 22, 2017

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                59A01-1610-CR-2449
              v.                                                Appeal from the Orange Circuit
                                                                Court.
                                                                The Honorable Larry R. Blanton,
      State of Indiana,                                         Presiding Judge.
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                59C01-1503-F2-179




      Shepard, Senior Judge

[1]   Indiana has a statute that bars charging a defendant in state court for the same

      conduct covered by a federal prosecution, even when the federal and state

      constitutional provisions on double jeopardy would permit doing so.




      Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017                  Page 1 of 9
[2]   In this interlocutory appeal, we conclude that the trial court was correct in

      declining to dismiss the charges against appellant Amanda Dill,

      notwithstanding the entry of a conviction in federal court on related charges.


                                Facts and Procedural History
[3]   At just past noon on March 3, 2015, state law enforcement officers executed a

      no-knock search warrant authorized by the judge of the Orange Circuit Court.

      While waiting for the warrant to be completed and authorized, and continuing

      to conduct surveillance, officers observed two people arrive in a white vehicle,

      enter the hotel room that was about to be searched, and then leave a short time

      later. Once the warrant was authorized, officers entered the hotel room, where

      they found Dill, her two children, and Dill’s boyfriend Terry Brown.


[4]   Upon entering, officers observed Dill and her children sitting on the bed nearest

      the window. A table located next to the window and bed, and in proximity to

      Dill and the children, had a line of methamphetamine on it.


[5]   Both Dill and Brown were placed in handcuffs and read their Miranda rights.

      Officers seized fourteen grams of marijuana found in Brown’s front pocket and

      immediately transported him to jail. After staff of the Indiana Department of

      Child Services arrived to take custody of the children, Dill was also transported

      to jail. A search of the room revealed methamphetamine and many items

      consistent with dealing meth. Dill admitted to officers that she had sold meth

      for $60 just prior to the execution of the warrant.



      Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017   Page 2 of 9
[6]   The State charged Dill with one count of Level 2 felony dealing in
                                   1
      methamphetamine, one count of Level 6 felony maintaining a common
                     2                                                             3
      nuisance, and Class B misdemeanor possession of marijuana.


[7]   About a month later, federal authorities indicted Dill and thirteen co-

      defendants. Dill pleaded guilty to the conspiracy charge and received a sixty-

      month executed sentence followed by three years of supervised release. Dill

      then moved to dismiss the state court charges, contending that further

      prosecution would violate the statute on double jeopardy. The trial court heard

      argument and denied the motion.


                                       Discussion and Decision
[8]   A defendant seeking to have charges dismissed bears the burden of proving by a

      preponderance of the evidence all facts necessary to support the motion to

      dismiss. Swenson v. State, 868 N.E.2d 540 (Ind. Ct. App. 2007). Dill, like other

      defendants whose motion has been denied, appeals from a negative judgment.

      We will reverse the trial court’s ruling in that situation only if the evidence is

      without conflict and leads inescapably to the conclusion that the party was

      entitled to dismissal. Id.




      1
          Ind. Code § 35-48-4-1.1 (2014).
      2
          Ind. Code § 35-48-4-13(b)(2) (2014).
      3
          Ind. Code § 35-48-4-11(a)(1) (2014).


      Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017       Page 3 of 9
[9]    The constitutions of Indiana and of the United States both protect citizens

       against being placed twice in jeopardy for the same criminal offense. Still, as

       Indiana and the United States constitute “dual sovereigns,” each of those two

       governments may prosecute a citizen for the same criminal act. Haggard v.

       State, 445 N.E.2d 969 (Ind. 1983) (citing Abbate v. United States, 359 U.S. 187, 79

       S. Ct. 666, 3 L. Ed. 2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct.

       676, 3 L. Ed. 2d 684 (1959), reh’g denied 360 U.S. 907, 79 S. Ct. 1283, 3 L. Ed.

       2d 1258; Wilson v. State, 270 Ind. 67, 383 N.E.2d 304 (1978); Heier v. State, 191

       Ind. 410, 133 N.E. 200 (1921)).


[10]   Nevertheless, an Indiana statute bars certain state prosecutions that are in the

       nature of double jeopardy:

               In a case in which the alleged conduct constitutes an offense
               within the concurrent jurisdiction of Indiana and another
               jurisdiction, a former prosecution in any other jurisdiction is a
               bar to a subsequent prosecution for the same conduct in Indiana,
               if the former prosecution resulted in an acquittal or a conviction
               of the defendant or in an improper termination under section 3 of
               this chapter.
       Ind. Code § 35-41-4-5 (1977). Unlike the analysis used for double jeopardy

       challenges brought under the state and federal constitutions, a challenge

       brought under this statute requires examination of whether the charges brought

       in state and federal court involve the same conduct. State v. Allen, 646 N.E.2d

       965 (Ind. Ct. App. 1995), trans. denied.


[11]   Dill argues that the trial court misapplied the statute, by employing the

       statutory elements and actual evidence tests used in constitutional cases.
       Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017   Page 4 of 9
[12]   The count of the federal indictment to which Dill pleaded guilty—Conspiracy
                                                                                     4
       to Distribute and to Possess with Intent to Distribute Methamphetamine ––

       alleged as follows:


                  Beginning on a date unknown to the Grand Jury, but at least as
                  early as June 2014, and continuing up to and including the
                  present, in the Southern District of Indiana and elsewhere, . .
                  .[the thirteen others and] Amanda M. Dill, defendants, did
                  knowingly conspire together and with diverse other persons,
                  known and unknown to the Grand Jury, to possess with the
                  intent to distribute and to distribute 500 grams or more of a
                  mixture or substance containing a detectable amount of
                  methamphetamine, a Schedule II, non-narcotic controlled
                  substance;
       Appellant’s App. Vol. II, pp. 27-28.


[13]   Because the alleged act was a conspiracy, the manner in which the conspiracy

       was carried out and the overt acts in furtherance of the conspiracy were also set

       forth in the charges. However, the plea agreement covering the charges alleged

       in Count I of the federal indictment included the following factual basis:

                  Between June 2014 and March 3, 2015, [Dill] agreed with
                  Amanda Sims, her co-defendant in this case, to obtain and
                  distribute methamphetamine. On multiple occasions, [Dill]
                  obtained methamphetamine from Sims on a fronted or partially
                  fronted basis, meaning that [Dill] would pay Sims for the
                  methamphetamine in full or in part after [Dill] had received and
                  subsequently sold portions of the methamphetamine.




       4
           21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(viii) (1988).


       Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017    Page 5 of 9
               On multiple occasions, with one such incident occurring on or
               about February 8, 2015, [Dill] coordinated purchases of
               methamphetamine for other individuals from Sims.
               In part to fund her own use, [Dill] would distribute
               methamphetamine to others in the Southern District of Indiana.
               [Dill] did so on multiple occasions, with one such incident
               occurring on or about February 12, 2015, when she sold
               approximately an eighth of an ounce of methamphetamine to
               another individual.
               On March 3, 2015, law enforcement officers executed a search
               warrant that had been issued by the Orange County (Indiana)
               Circuit Court on a hotel room in French Lick, Indiana. [Dill]
               was present in the hotel room at the time of the search.
               Approximately 13.4 grams of methamphetamine was seized from
               that hotel room. Shortly before the execution of the search
               warrant, [Dill] had sold approximately half an ounce
               (approximately 14 grams) of methamphetamine to another
               individual from the hotel room.
               Between June 2014 and March 3, 2015, [Dill] received and,
               subsequently distributed or consumed, more than 500 grams of a
               mixture or substance containing methamphetamine from Sims.
               At the time of her arrest on March 3, 2015, [Dill] owed Sims
               approximately $3,000 for methamphetamine Sims had previously
               provided to her.
       Appellant’s App. Vol. III, pp. 22-23, paragraphs 20 A-E.


[14]   Dill urges that the reference to her activities at the hotel on March 3, 2015,

       precludes further prosecution at the state level.


[15]   Our relatively few encounters with claims under the statute at issue provide

       general guidance about applying it.




       Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017   Page 6 of 9
[16]   In Smith v. State, 993 N.E.2d 1185 (Ind. Ct. App. 2013), trans. denied, a panel of

       this court considered whether there was a violation of the double jeopardy

       statute. Smith and his co-defendant faced federal charges for an overarching

       Ponzi scheme, defrauding some seventy-two investors from at least three states,

       including Indiana, through representations that Smith and his co-defendant

       were properly licensed day traders. The federal charges alleged conspiracy to

       commit mail and wire fraud, obstruction, and tax evasion.


[17]   On appeal from the denial of a motion to dismiss state court charges, a majority

       of the panel concluded that for some of the charges the conduct was not the

       same for purposes of statutory double jeopardy. In examining the allegations of

       the two prosecutions, Judge Kirsch wrote,

               [The state charges] allege that Smith knowingly transacted
               business as a broker-dealer without being registered as such with
               the Indiana Secretary of State, Securities Division, as required by
               law, and without being exempt from registration. In those counts
               the offense is failing to register as a broker-dealer as required by
               law before transacting business as such and does not involve the
               same conduct as the conduct forming the basis for Smith’s federal
               conviction, i.e., devising and participating in the scheme to
               defraud investors.
       Id. at 1190-91.


[18]   The decision in State v. Allen, 646 N.E.2d 965 (Ind. Ct. App. 1995), trans. denied,

       reflects this same approach, comparing the statutory charges brought and the

       evidence in support of the allegations. The panel agreed that the state and

       federal charges of conspiracy rested on the same sort of conduct, with the


       Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017   Page 7 of 9
       federal indictment resting on acts covering a greater period than the state

       indictment. It held that this constituted the “same conduct” and held that

       dismissal of the state charges was required. In examining the nature of federal

       and state RICO charges, by contrast, the panel concluded that many of the

       underlying acts differed. It noted that both Congress and the General Assembly

       intended that racketeering be treated as a crime separate from the particular

       acts, and ordered dismissal of the state RICO count.


[19]   The ruling in Swenson, 868 N.E.2d 540, employed a similar approach. Though

       the charges filed against Swenson in Kentucky for receiving stolen property

       were not identical to the charges filed in Indiana for theft, the State acknowledged

       the conduct set forth in both was the same––stealing prescription pads in

       Indiana and taking them to Kentucky––but the Attorney General had argued

       that Kentucky and Indiana were separate sovereigns and thus could both

       proceed. This would have been true as a constitutional matter, but the panel

       held that Indiana’s double jeopardy statute mandated dismissal.


[20]   Here, the federal charges to which Dill pleaded guilty were for her involvement

       in a conspiracy to possess and distribute methamphetamine. The record reflects

       the overt acts––one on February 8, 2015, and one on February 12, 2015––

       establishing her involvement and participation in the alleged conspiracy, lasting

       roughly nine months before culminating in her arrest on March 3, 2015, after

       the execution of the search warrant.




       Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017   Page 8 of 9
[21]   In contrast, the state charge alleged that on March 3, 2015, Dill did knowingly

       or intentionally possess with the intention to deliver methamphetamine, pure or

       adulterated, said methamphetamine having a weight of at least ten grams.

       Appellant’s App. Vol. III, p. 6. We conclude that the criminal statutes invoked

       and the facts supporting each were sufficiently separate that two prosecutions

       did not constitute the “same conduct.”


                                                 Conclusion
[22]   In light of the foregoing, we affirm the trial court’s decision.


       Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 59A01-1610-CR-2449 | August 22, 2017   Page 9 of 9
