                                                                             June 14, 1979


79-42       MEMORANDUM OPINION FOR THE
            ASSOCIATE DEPUTY ATTORNEY GENERAL

            District of Columbia—Applicability of the Double
            Jeopardy Clause of the Fifth Amendment to the
            Constitution


   You have asked whether, were Congress to establish within the govern­
ment of the District of Columbia an office equivalent to that of a city or
State prosecutor, the Double Jeopardy Clause of the Fifth Amendment
would bar successive prosecutions by the United States and the District
(under the United States and District Codes) of a single person for the
same acts. It is our conclusion that, because there is an identity of
sovereignty between the United States and the District of Columbia for
Double Jeopardy Clause purposes, the bar of the Fifth Amendment would
prevent such successive prosecutions.1
   The Supreme Court has recently stated:
      [It is a] well established principle that a federal prosecution does
      not bar a subsequent state prosecution of the same person for the
      same acts, and a state prosecution does not bar a federal one.
      The basis for this doctrine is that prosecutions under the laws of
      separate sovereigns do not, in the language of the Fifth Amend­
      m ent,” subject [the defendant] for the same offence to be twice
      put in jeopardy.” [United States v. Wheeler, 435 U.S. 313,
      316-317 (1978) (footnote omitted).]
It is equally well established that “ [t]he ‘dual Sovereignty’ concept does
not apply, however, in every instance where successive cases are brought
by nominally different prosecuting entities.” Id. at 318. Thus, in cases of
successive prosecution in which the Supreme Court has found an identity
of sovereignty, as between a Federal territory and the United States,


    1 W e take it as given that, if applicable, the bar o f the Double Jeopardy Clause prevents
such dual prosecutions. T he nature and scope o f the bar, when applicable, is not the subject
o f this m em orandum .

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Puerto Rico v. Shell Co., 302 U.S. 253 (1937); Grafton v. United States,
206 U.S. 333 (1907), or a-city and a State, Waller v. Florida, 397 U.S. 387
(1970),2 it has applied the bar of the Double Jeopardy Clause.
   The Court has spoken unequivocally in identifying the single factor,
which, for Fifth Amendment Double Jeopardy Clause purposes, deter­
mines whether there is unity or duality of sovereignty between nominally
distinct prosecuting governments. It is neither the degree of control which
the one has over the other, United States v. Wheeler, supra, at 319-320,
327-328, nor is it the authority of the one to legislate and to enforce its
legislation independently of the other. Waller v. Florida, supra. R ather,'
the question to be asked is whether the ultimate source of the power of
each to prescribe laws and punish infractions of those laws is the same or
different. Id.; United States v. Wheeler; Grafton v. United States. If it is
the same, there is identity of sovereignty for Double Jeopardy Clause
purposes.
   When the question is whether there is identity of sovereignty between
the United States and another prosecuting government, the answer is,
ultimately, constitutionally based. If the government in question is not
nominally the United States but derives its power to legislate and to prose­
cute from a delegation by the United States of a constitutional power,
there is unity of sovereignty between the two. C f, United States v.
 Wheeler, at 322 (“ [T]he controlling question * * * is the source of this
power * * * [i]s it a part of inherent * * * sovereignty, or an aspect of
the sovereignty of the Federal Government which has been
delegated * * * by Congress?” ). Such is clearly the case with respect to a
territory of the United States. Grafton v. United States. This is also the
case as between the District of Columbia and the United States.
   Article I, Section 8, Clause 17, of the Constitution vests in Congress the
power “ [t]o exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of par­
ticular States, and the Acceptance of Congress, become the Seat of the
Government of the United States * *           This power of Congress may
permissibly be delegated, District o f Columbia v. John R. Thompson Co.,
346 U.S. 100 (1953), and much of it has been. See District of Columbia
Self-Government and Governmental Reorganization Act, Public Law No.
93-198, 87 Stat. 774.’ However, its source, whatever governmental entity


   1 The Double Jeopardy Clause o f the Fifth Am endment has been held applicable to the
States. Benton v. Maryland, 395 U .S. 784 (1969).
   1 Although Congress has provided for hom e rule for the District o f Colum bia, it delegated
the power o f government “ [s]ubject to the retention by Congress o f the ultimate legislative
authority over the N ation’s Capital granted by article I, section 8, o f the C onstitution.”
District o f Columbia Self-Government and Governm ental Reorganization Act § 102(a).
Moreover, it reserved, the Act notwithstanding, “ the right, at any time, to exercise its con­
stitutional authority as legislature for the District * *   Id., § 601. Thus, it is clear that,
even if it could, without a constitutional amendm ent or a grant o f statehood or in­
dependence, the U nited States has not chosen to divest itself o f its sovereignty over the
District o f Columbia. It has only delegated power which is its own, to be exercised by the
District government that it created.

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 exercises it, remains the same—the Constitution of the United States.
 With respect to identity of the ultimate source of the power to proscribe
 conduct and to prosecute violations, the relationship between the District
 of Columbia and the United States cannot be distinguished, for double
 jeopardy purposes, from either the relationship between a Federal ter­
 ritory and the United States or a city and a State. In each case the Double
 Jeopardy Clause is applicable because the nominally distinct governmental
 entities have as their source of power the same organic law. As between the
 United States and the District of Columbia that source is Article I, section
'8, clause 17 of the Constitution.
    The Supreme Court has not had occasion to rule on a double jeopardy
 question arising out of a dual prosecution under United States and District
 law. The District of Columbia Circuit Court of Appeals, however, has
 considered the relationship for double jeopardy purposes between the
 District and the United States and has opined that “ [s]ince successive pros­
 ecutions on identical or lesser included D.C. and federal offenses emanate
 from the same sovereignty, they are precluded by double jeopardy con­
 siderations.” United States v. Jones, 527 F. (2d) 817, 821 (D.C. Cir.
 1975). See also, United States v. Knight, 509 U.S. F. (2d) 354, 360 (D.C.
 Cir. 1974). We believe that this statement o f the law was correct when
 issued, still applies, and will continue to apply when the District adopts a
 criminal code without congressional enactment, and would apply were
 Congress to establish a prosecutor’s office within the District government.

                                     Mary C. Law    ton

                            Deputy Assistant Attorney General
                                                Office o f Legal Counsel




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