Both can pursue the same drug conduct: the Constitution’s double jeopardy protection does not stop California and federal prosecutors from each bringing their own case. California adds a narrower protection, but it works in one direction only. If a federal or out-of-state case ends in a conviction or acquittal first, California law can bar a later California prosecution for the same act; it does not stop a federal case that follows a California one.

Why both can move forward: the dual-sovereignty doctrine

The Fifth Amendment protects a person from being tried twice for the same offense. In Gamble v. United States, the U.S. Supreme Court declined to overturn the long-standing rule that a crime under one government’s laws is not treated as the same offense as a crime under another government’s laws, because each government’s law defines its own offense (Gamble v. United States). Under this dual-sovereignty doctrine, California and the federal government are treated as separate sovereigns, so a state prosecution for drug conduct and a federal prosecution for the same conduct are not, from the Constitution’s standpoint, the same case tried twice. That holds whether the state case comes first, the federal case comes first, or both move at the same time.

California’s bar applies only after a federal or out-of-state conviction or acquittal

California law adds a layer the Constitution does not require. If you have already been acquitted or convicted under federal law, or under the law of another state, for the same act, that result “is a sufficient defense” to a later California prosecution for that same act (Penal Code section 656). Separately, when an act is within the joint jurisdiction of California and another state or the federal government, a conviction or acquittal for it in that other jurisdiction “is a bar to the prosecution or indictment” in California for the same act (Penal Code section 793).

Both statutes depend on a case that has already ended in a conviction or an acquittal, and both protect only against the later California prosecution. Neither one helps while the state and federal cases are both still open, both still investigating, or both still awaiting trial, which is the situation most people asking this question are actually in.

What this means while both cases are still open

  • Being investigated, arrested, or charged in one system does not, by itself, stop the other system from also investigating, arresting, or charging you for the same conduct.
  • If the federal case ends first in a conviction or acquittal, sections 656 and 793 can be raised against a later California prosecution for the same act. If the California case ends first, those statutes do not help, because they limit only California.
  • Once a state case has ended in a conviction (including by plea), an acquittal, or a dismissal on the merits after jeopardy attached, an internal Justice Department policy, the Petite policy, restricts a federal prosecution for substantially the same acts: it requires, among other things, a substantial federal interest that the state case left demonstrably unvindicated and approval by an Assistant Attorney General. The policy governs charging decisions, not investigations, and the Justice Manual states that it creates no rights a defendant can enforce (Justice Manual 9-2.031).
  • Which government proceeds first, and whether one defers to the other, is decided by the prosecutors; the same Justice Manual section tells federal prosecutors to consult their state counterparts early about the most appropriate single forum, but nothing in these rules lets you make that choice.
  • A dismissal in one case does not end the other, and a plea or verdict in one case does not automatically close the other either; when they apply, the California statutes supply a defense or bar in the later California case.

Federal sentencing exposure, mandatory minimums, and federal trial strategy are covered on the firm’s federal drug charges page, and general background on federal jurisdiction is on the firm’s federal crimes page.

If you are dealing with both a California drug case and federal attention over the same conduct, the timing and sequencing of both cases matters, and a decision made in one case can affect the other. Call (800) 755-5174 to talk through both proceedings with the Law Offices of David S. Chesley.