           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    United States v. Dominguez                 No. 02-2081
        ELECTRONIC CITATION: 2004 FED App. 0069P (6th Cir.)
                    File Name: 04a0069p.06                                 Richard D. Korn, Detroit, Michigan, for Appellee.
                                                                           ON BRIEF: David J. Debold, ASSISTANT UNITED
                                                                           STATES ATTORNEY, Detroit, Michigan, for Appellant.
UNITED STATES COURT OF APPEALS                                             Richard D. Korn, Detroit, Michigan, for Appellee.
                  FOR THE SIXTH CIRCUIT                                                       _________________
                    _________________
                                                                                                  OPINION
 UNITED STATES OF AMERICA ,       X                                                           _________________
          Plaintiff-Appellant,     -
                                   -                                         BOGGS, Chief Judge. The United States appeals from an
                                   -   No. 02-2081                         interlocutory order in its prosecution against Edward
            v.                     -                                       Dominguez. The district court suppressed key evidence on
                                    >                                      the basis of issue preclusion because the same evidence had
                                   ,                                       been suppressed in a previous Michigan state court
 EDWARD DOMINGUEZ,                 -
           Defendant-Appellee. -                                           proceeding against Dominguez. Because the district court
                                                                           misinterpreted applicable Michigan law, we REVERSE this
                                  N                                        order and remand for further proceedings consistent with our
       Appeal from the United States District Court                        holdings.
    for the Eastern District of Michigan at Ann Arbor.
   No. 01-90030—Marianne O. Battani, District Judge.                                                     I

                   Argued: October 21, 2003                                  This case presents the interesting issue of what preclusive
                                                                           force a Michigan state criminal proceeding may have upon
              Decided and Filed: March 4, 2004                             the course of a subsequent federal criminal proceeding. The
                                                                           United States charges Dominguez with drug trafficking, under
Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge;                        21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Its case depends
            and GWIN, District Judge.*                                     largely upon evidence seized in Dominguez’s automobile
                                                                           pursuant to a Michigan state search warrant. That warrant, in
                       _________________                                   turn, was issued based upon an affidavit setting forth the
                                                                           report of a confidential informant that he had seen a kilogram
                            COUNSEL                                        of cocaine stored in a secret compartment of an automobile
                                                                           registered to Ruben Rodriguez, an alias for Dominguez.
ARGUED: David J. Debold, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellant.                           A joint state-federal task force, the Western Wayne
                                                                           Interdiction Team, executed the search warrant and found
                                                                           cocaine in the car (although not in a secret compartment).
                                                                           The State of Michigan then brought state-law drug-trafficking
    *
      The Ho norable James S. Gwin, United States District Judge for the   charges against Dominguez. The state trial court suppressed
No rthern D istrict of O hio, sitting by designation.

                                   1
No. 02-2081                 United States v. Dominguez        3    4     United States v. Dominguez                   No. 02-2081

all evidence obtained as a result of the search warrant, holding   so there is no Michigan case law directly on point. This by
that the warrant had been obtained in violation of the Fourth      itself does not prevent us from applying the Full Faith and
Amendment to the United States Constitution. The court then        Credit Act. The Supreme Court resolved a similar issue in
dismissed the state charges against Dominguez without              Marrese v. American Acad. of Orthopaedic Surgeons, 470
prejudice. Michigan did not appeal from that evidentiary           U.S. 373 (1985), which directed the appellate court to look
ruling.                                                            first to the state law of preclusion in order to determine
                                                                   whether a prior state court judgment precluded an antitrust
   After the state case was dismissed, the United States           claim within the exclusive jurisdiction of the federal courts.
brought this action based on federal-law charges similar to        Only after making that determination would the federal court
those brought by Michigan in the prior state court action.         consider whether the Full Faith and Credit Act should apply.
Dominguez again moved to suppress the evidence. The                Marrese, 470 U.S. at 381-82. Because a state court could
district court granted his motion because it found that the        never literally apply its preclusion rules to that particular
United States was collaterally estopped from litigating that       claim, the federal court applies the state’s general preclusion
issue as a privy to the state of Michigan. The United States       rules. Ibid. Marrese involved claim preclusion, but it relied
appeals.                                                           principally upon Kremer v. Chemical Const. Corp., 456 U.S.
                                                                   461, 479 & n.20 (1982), which used the state law of issue
                               II                                  preclusion. Ibid. This Circuit therefore understands Marrese
                                                                   to require a federal court to look first to the rendering state’s
   We review de novo a district court decision based on claim      law of issue preclusion, even when the issue in question arises
or issue preclusion. Heyliger v. State Univ. & Cmty. Coll.         in the context of a claim that is exclusively within federal
Sys. of Tenn., 126 F.3d 849, 851 (6th Cir. 1997). Our analysis     jurisdiction. Kaufman v. BDO Seidman, 984 F.2d 182, 183-
begins with the Full Faith and Credit Act, 28 U.S.C. § 1738,       84 & n.5 (6th Cir. 1993).
which reads in relevant part: “[t]he records and judicial
proceedings of any court of any . . . State . . . shall have the      Therefore, even though the Michigan courts could never
same full faith and credit in every court within the United        literally confront our situation, we can and must resolve the
States . . . as they have by law or usage in the courts of [the    Michigan law questions before asking whether some
state] from which they are taken.” Therefore, we must              exception to the Full Faith and Credit Act may apply.
normally give a Michigan state court judgment “the same
preclusive effect as would be given that judgment under the                                       III
law of the State.” Migra v. Warren City School Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984). This rule applies to issues           Under Michigan law, the party asserting preclusion bears
adjudicated in a state-court criminal proceeding. Allen v.         the burden of proof. Detroit v. Qualls, 454 N.W.2d 374, 383
McCurry, 449 U.S. 90 (1980) (plaintiff cannot relitigate in        (Mich. 1990). A court must apply issue preclusion when
federal civil rights action the issue of constitutionality of      1) the parties in both proceedings are the same or in privity,
search, adjudicated in his prior state criminal conviction).       2) there was a valid, final judgment in the first proceeding,
                                                                   3) the same issue was actually litigated in the first proceeding,
  Of course, a Michigan state court never could sit in             4) that issue was necessary to the judgment, and 5) the party
judgment over the prosecution of a federal crime, as 18            against whom preclusion is asserted (or its privy) had a full
U.S.C. §3231 creates exclusive federal criminal jurisdiction,      and fair opportunity to litigate the issue. Michigan v. Gates,
No. 02-2081                 United States v. Dominguez         5    6    United States v. Dominguez                   No. 02-2081

452 N.W.2d 627, 630-31 (Mich. 1990). The only one of these            Privity between separate sovereigns is usually found only
factors in contention here is the first. The district court found   after much factual analysis. See United States v. ITT
that Michigan law would treat the federal government                Rayonier, 627 F.2d 996, 1003 (9th Cir. 1980) (state and
as“essentially the same party” as the State for these purposes.     federal environmental agencies were in privity where they
We disagree.                                                        collaborated to grant and later revoke a license under joint-
                                                                    authority statutory scheme); compare United States v. Power
   The district court, and Dominguez, rely entirely upon In re      Eng’g Co., 303 F.3d 1232, 1241 (10th Cir. 2002)
Forfeiture of $1,159,420, 486 N.W.2d 326 (Mich. Ct. App.            (distinguishing facts and finding no privity). Michigan law
1992). There, the state of Michigan sought to seize property        does not find privity between governmental units as a matter
from Robert Hawkins and his wife and minor children. In a           of law. Quite the contrary, Gates emphasizes that such
prior federal criminal case against Hawkins for drug                questions require “multifaceted analysis and balancing of
trafficking, a federal district court had upheld the validity of    competing and vaguely defined governmental and private
a search warrant used to get evidence against him. In the state     interests.” Id. at 630 n.12 (quoting Holland, Modernizing Res
forfeiture proceeding, the state relied on that same evidence.      Judicata Reflections on the Parklane Doctrine, 55 Ind. L.J.
Although the parties were not identical on either side, the         615 , 618-19 (1980)). Michigan thus agrees with the modern
Michigan appellate court held that the defendants were              view of collateral estoppel, that privity will be found only
collaterally estopped from contesting the validity of the           upon consideration of the facts of a particular case. E.g.,
search warrant. In re Forfeiture, 486 N.W.2d at 333. The            United States v. Bonilla-Romero, 836 F.2d 39, 43 (1st Cir.
privity requirement of Michigan’s preclusion test was               1987). In re Forfeiture itself is not to the contrary, although
satisfied because “the federal prosecution and the prosecution      the district court apparently did not appreciate the
in this case are essentially the same party, albeit of different    significance of the words “in this case [the prosecutors] are
governments.” Ibid. The district court concludes that               essentially the same party.” In re Forfeiture, 486 N.W.2d at
Michigan law equates Michigan and federal prosecutors for           333 (emphasis added).
estoppel purposes. But this conclusion does not follow from
In re Forfeiture for several reasons.                                  Nor are the facts of In re Forfeiture so like those before us
                                                                    as to demand the same outcome. Unlike the second
  To begin with, In re Forfeiture is an appellate-level             prosecutor in that case, the United States is not an arguable
decision, so it can give us only limited guidance in emulating      stranger to the dispute now seeking to assert issue preclusion;
the Michigan Supreme Court. See King v. Order of United             rather, we are asked to apply issue preclusion against the
Commercial Travelers of America, 333 U.S. 153, 160-61               newcomer based upon a finding of privity. The latter is a
(1948) (federal court construes state law by emulating the          weightier determination. Many jurisdictions have dispensed
highest court of the state). The key holding of In re               with the privity requirement altogether as to the party
Forfeiture relies upon the Michigan Supreme Court opinion           asserting preclusion, Blonder-Tongue Labs., Inc. v. Univ. of
in Michigan v. Gates, supra, but Gates merely found that a          Ill. Found., 402 U.S. 313, 326 & n.14 (1971), but never as to
Michigan prosecutor acted as the same party when he                 the party to be precluded. Shimman v. Frank, 625 F.2d 80,
represented the entire state, as when he represented a state        89-90 (6th Cir. 1980).
agency. Gates, 452 N.W.2d at 630. Gates does not imply
that separate governmental units, much less separate                  Michigan maintains the traditional rule of “mutuality of
sovereigns, are privies as a matter of law.                         estoppel,” requiring both the party to be precluded and the
No. 02-2081                       United States v. Dominguez               7    8       United States v. Dominguez                         No. 02-2081

party asserting preclusion to have been represented at the                      that no privity exists between state and federal governments,
prior proceeding. Lichon v. American Universal Ins. Co., 459                    between the governments of different states, or between state
N.W.2d 288, 298 (Mich. 1990). One might conclude that                           and local governments.” Ibid. (quoting 47 Am. Jur. 2d
when a Michigan court finds privity, it uses exactly the same                   Judgments, § 700 (2003)) (emphasis added). Although
analysis as to either role, so the finding is precedential across               Baraga County addresses federal-state privity only in dictum,
the board. But it has long been observed that in jurisdictions                  it strongly suggests that absent a showing of an agency
that require mutuality of estoppel, “exceptions were made by                    relationship between the state and federal prosecutors, a
decisions that extended the benefits of preclusion through                      Michigan court would not find they were in privity.
findings of privity that surely would not have been made had
the direction of preclusion been reversed.” 18 Charles Alan                        The Baraga County dictum commands our respect, the
Wright, Arthur R. Miller, & Edward H. Cooper, Federal                           more so because it accords with the general understanding of
Practice and Procedure § 4463 (1981). The Michigan Court                        the relationship between federal and state prosecutors. This
of Appeals takes a pragmatic, equitable approach to the                         court has opined, albeit only in dictum and without analysis
mutuality requirement. See Keywell & Rosenfeld v. Bizell,                       of state law, that a Michigan and a United States prosecutor
657 N.W.2d 759, 787-88 (Mich. Ct. App. 1992), and cases                         were not the same party. United States v. Lloyd, 10 F.3d 1197
cited therein. Therefore, even the same panel of the Michigan                   (6th Cir. 1993). The First Circuit Court of Appeals routinely
Court of Appeals might not have found privity had the In re                     looks for an agency relationship to determine whether a
Forfeiture roles been reversed.1                                                federal prosecution is collaterally estopped by a ruling in a
                                                                                prior state prosecution. United States v. Charles, 213 F.3d
   The Michigan Supreme Court has recently provided more                        10, 21 (1st Cir.), cert. denied, 531 U.S. 915 (2000).2
relevant guidance. Baraga County v. State Tax Comm’n, 645                       Similarly, this court has recognized that successive state and
N.W.2d 13, 17 (Mich. 2002), held that Michigan’s Tax                            federal prosecutions may constitute double jeopardy only if
Commission was not bound by a consent agreement between                         the state proceeding was a mere “tool” or “cover” for a federal
a county and an Indian tribe over the payment of property                       prosecution. United States v. Louisville Edible Oil Prods.,
taxes, because the facts presented did not show that the                        Inc., 926 F.2d 584 (587-88) (1991) (quoting Bartkus v.
county and the Tax Commission were in privity. The court                        Illinois, 359 U.S. 121, 123-24 (1959)).
held that between governmental units, unlike private entities,
privity is not based upon an identity of interests, but only                      In his appellate brief, and at oral argument, Dominguez
upon an agency relationship. Baraga County, 645 N.W.2d at                       asserted that the United States did direct the state prosecution.
17. The court also expressed its reluctance to find privity                     But there is no evidence in the record to support this
between different governmental units, agreeing with the                         argument. Dominguez merely asserts that a state-employed
general proposition that “[c]ourts have also generally found                    Assistant Attorney General on the state prosecution team was
                                                                                also designated as an Assistant United States Attorney
    1
       The In re Forfeiture court also found privity on the other side of the
equation, reasoning that Hawkins’s interests as criminal defendant                  2
represented his and his family’s interests as property owners. 486 N.W.2d             The United States urges us to adop t Charles as a rule of federal
at 333. Dominguez therefore suggested at colloquy that Michigan and the         common law. But it is not clear whether Charles and related cases
United States were like a family, a warm view of federal-state relations        establish a rule of federal law or simply recognize a com mon ality in state
that this court cannot ho ld always is accurate.                                law thro ughout the First Circuit.
No. 02-2081                  United States v. Dominguez         9    10    United States v. Dominguez                    No. 02-2081

involved in the federal prosecution. This court will not affirm      this statute and bar a successive federal prosecution as well.
based upon a mere assertion made for the first time at the           But this would let a hypothetical Michigan court do what the
appellate level. This is particularly so, because even if            state legislature may not. Michigan clearly could not by
supported, the facts asserted would not prove control or             statute restrain federal prosecutors from enforcing federal
agency: Dominguez does not assert that this particular state         criminal laws as to Michigan convicts. How, then, can its
prosecutor could or did effectively recommend dismissal, nor         courts create a uniquely-targeted rule of preclusion to do
that he was subject to federal control during the state              precisely that?
proceedings.
                                                                        The United States in its role as prosecutor is very different
  We conclude that a Michigan court applying Michigan law            from the usual civil litigator. In Standefer v. United States,
would not find based upon the facts in the record that the           447 U.S. 10 (1980), the Court determined that non-mutual
United States was in privity with the Michigan prosecutor in         collateral estoppel may not be applied against the United
the prior state proceeding. Therefore, collateral estoppel does      States in criminal cases. The Court based this decision in part
not bar the introduction of this evidence.                           upon the great public interest in the maintenance of criminal
                                                                     prosecutions despite possibly erroneous prior acquittals based
   Even if Michigan law did create privity between the federal       on the same facts. Standefer, 447 U.S. at 25. The public’s
and state governments as a matter of law, we would have              interest stands in sharp contrast to the importance of the
grave doubts as to the propriety of estopping a federal              vindication of a mere private right in the usual civil action.
prosecutor on these grounds. As seen in this case, issue             Id. at 24. Just so, applying a general state preclusionary rule,
preclusion often concludes an action as surely as claim              even as to a claim exclusively within the civil jurisdiction of
preclusion. See Ashe v. Swenson, 397 U.S. 436, 445 (1970)            the United States impairs only the rights of one litigant on one
(state is precluded from separately prosecuting alleged robber       occasion; but only the United States has the power to enforce
for each victim of same robbery, where state could not prove         its own criminal laws. It should not be lightly inferred that
identity in first trial). In effect, Michigan could gravely affect   Congress intended to put this fundamental attribute of
the powers of the United States acting as sovereign in its own       sovereignty at the mercy of a state legislature’s or judiciary’s
courts. Cf. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir.            ability to say, as it were, “inside our state borders, the federal
1977) (“collateral estoppel doctrine does not apply when             government is us.”
different sovereigns and, thus, different parties are involved
in the litigation.”) The Full Faith and Credit Act certainly           Such an expansive reading of the Act could have
gives the Michigan courts and legislature considerable               mischievous results. The federal government would doubtless
influence over subsequent litigation in federal court, and this      be obliged to involve itself closely in all Michigan criminal
serves comity. Migra, 475 U.S. at 84. But to promote comity          prosecutions implicating some federal crime. The resulting
is one thing, to surrender sovereignty quite another.                interference with the Michigan Attorney General’s office
                                                                     would waste federal and state resources. It might also impair
   The problem is illustrated by comparison to Mich. Comp.           the very goal of the Full Faith and Credit Act, comity. See
Laws Ann. § 333.7409, which bars a Michigan prosecution              Migra, 475 U.S. at 84. And the mischief need not be
for drug trafficking based upon acts that have already given         confined to the criminal arena but could spread to other areas
rise to a criminal prosecution in another jurisdiction.              of overlapping federal and state responsibility. Instead of
Dominguez urges that a Michigan court would analogize from           assessing the sovereigns’ relationship on a case-by-case basis,
No. 02-2081                United States v. Dominguez       11

as in ITT Rayonier, supra, the mere fact of overlap would be
enough to create privity between agencies. Confronting a
similar issue, the Supreme Court held that a California state
court ejectment action against tenants of the United States did
not estop the United States, even though California made
landlords privy to their tenants in such actions. Carr v.
United States, 98 U.S. 433, 437 (1878). To rule otherwise
would be to find, unacceptably, that California had subjected
the United States to suit without its consent or even its
knowledge. Id. at 438. Carr may not fully accord with the
modern view of sovereign immunity, but its general concerns
remain valid. Generally applicable state rules of privity may
occasionally encompass the United States in its sovereign role
and preclude some claim or issue. ITT Rayonier, 627 F.2d at
1002-03 & n.7. But it seems unlikely that a privity rule
targeted solely at the United States as prosecutor would come
within the bounds of the Full Faith and Credit Act.
  Because the United States was not party or privy to the
state court proceeding against Dominguez, it is not
collaterally estopped from litigating the admissibility of the
evidence against Dominguez, and we therefore REVERSE the
order of the district court and remand for further proceedings
in accord with this opinion.
