*

The Honorable James S. Gwin, United States District Judge for the

Northern District of Ohio, sitting by designation. 

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0069P (6th Cir.)

File Name: 04a0069p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

EDWARD DOMINGUEZ,

Defendant-Appellee.

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No. 02-2081

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 01-90030—Marianne O. Battani, District Judge.

Argued: October 21, 2003

Decided and Filed: March 4, 2004 

Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; 

and GWIN, District Judge.*

_________________

COUNSEL

ARGUED: David J. Debold, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellant.

2 United States v. Dominguez No. 02-2081

Richard D. Korn, Detroit, Michigan, for Appellee.

ON BRIEF: David J. Debold, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellant.

Richard D. Korn, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

BOGGS, Chief Judge. The United States appeals from an

interlocutory order in its prosecution against Edward

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

proceeding against Dominguez. Because the district court

misinterpreted applicable Michigan law, we REVERSE this

order and remand for further proceedings consistent with our

holdings.

I 

This case presents the interesting issue of what preclusive

force a Michigan state criminal proceeding may have upon

the course of a subsequent federal criminal proceeding. The

United States charges Dominguez with drug trafficking, under

21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Its case depends

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

of cocaine stored in a secret compartment of an automobile

registered to Ruben Rodriguez, an alias for Dominguez.

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

charges against Dominguez. The state trial court suppressed
No. 02-2081 United States v. Dominguez 3

all evidence obtained as a result of the search warrant, holding

that the warrant had been obtained in violation of the Fourth

Amendment to the United States Constitution. The court then

dismissed the state charges against Dominguez without

prejudice. Michigan did not appeal from that evidentiary

ruling. 

After the state case was dismissed, the United States

brought this action based on federal-law charges similar to

those brought by Michigan in the prior state court action.

Dominguez again moved to suppress the evidence. The

district court granted his motion because it found that the

United States was collaterally estopped from litigating that

issue as a privy to the state of Michigan. The United States

appeals. 

II

We review de novo a district court decision based on claim

or issue preclusion. Heyliger v. State Univ. & Cmty. Coll.

Sys. of Tenn., 126 F.3d 849, 851 (6th Cir. 1997). Our analysis

begins with the Full Faith and Credit Act, 28 U.S.C. § 1738,

which reads in relevant part: “[t]he records and judicial

proceedings of any court of any . . . State . . . shall have the

same full faith and credit in every court within the United

States . . . as they have by law or usage in the courts of [the

state] from which they are taken.” Therefore, we must

normally give a Michigan state court judgment “the same

preclusive effect as would be given that judgment under the

law of the State.” Migra v. Warren City School Dist. Bd. of

Educ., 465 U.S. 75, 81 (1984). This rule applies to issues

adjudicated in a state-court criminal proceeding. Allen v.

McCurry, 449 U.S. 90 (1980) (plaintiff cannot relitigate in

federal civil rights action the issue of constitutionality of

search, adjudicated in his prior state criminal conviction). 

Of course, a Michigan state court never could sit in

judgment over the prosecution of a federal crime, as 18

U.S.C. §3231 creates exclusive federal criminal jurisdiction,

4 United States v. Dominguez No. 02-2081

so there is no Michigan case law directly on point. This by

itself does not prevent us from applying the Full Faith and

Credit Act. The Supreme Court resolved a similar issue in

Marrese v. American Acad. of Orthopaedic Surgeons, 470

U.S. 373 (1985), which directed the appellate court to look

first to the state law of preclusion in order to determine

whether a prior state court judgment precluded an antitrust

claim within the exclusive jurisdiction of the federal courts.

Only after making that determination would the federal court

consider whether the Full Faith and Credit Act should apply.

Marrese, 470 U.S. at 381-82. Because a state court could

never literally apply its preclusion rules to that particular

claim, the federal court applies the state’s general preclusion

rules. Ibid. Marrese involved claim preclusion, but it relied

principally upon Kremer v. Chemical Const. Corp., 456 U.S.

461, 479 & n.20 (1982), which used the state law of issue

preclusion. Ibid. This Circuit therefore understands Marrese

to require a federal court to look first to the rendering state’s

law of issue preclusion, even when the issue in question arises

in the context of a claim that is exclusively within federal

jurisdiction. Kaufman v. BDO Seidman, 984 F.2d 182, 183-

84 & n.5 (6th Cir. 1993). 

Therefore, even though the Michigan courts could never

literally confront our situation, we can and must resolve the

Michigan law questions before asking whether some

exception to the Full Faith and Credit Act may apply. 

III

Under Michigan law, the party asserting preclusion bears

the burden of proof. Detroit v. Qualls, 454 N.W.2d 374, 383

(Mich. 1990). A court must apply issue preclusion when

1) the parties in both proceedings are the same or in privity,

2) there was a valid, final judgment in the first proceeding,

3) the same issue was actually litigated in the first proceeding,

4) that issue was necessary to the judgment, and 5) the party

against whom preclusion is asserted (or its privy) had a full

and fair opportunity to litigate the issue. Michigan v. Gates,
No. 02-2081 United States v. Dominguez 5

452 N.W.2d 627, 630-31 (Mich. 1990). The only one of these

factors in contention here is the first. The district court found

that Michigan law would treat the federal government

as“essentially the same party” as the State for these purposes.

We disagree. 

The district court, and Dominguez, rely entirely upon In re

Forfeiture of $1,159,420, 486 N.W.2d 326 (Mich. Ct. App.

1992). There, the state of Michigan sought to seize property

from Robert Hawkins and his wife and minor children. In a

prior federal criminal case against Hawkins for drug

trafficking, a federal district court had upheld the validity of

a search warrant used to get evidence against him. In the state

forfeiture proceeding, the state relied on that same evidence.

Although the parties were not identical on either side, the

Michigan appellate court held that the defendants were

collaterally estopped from contesting the validity of the

search warrant. In re Forfeiture, 486 N.W.2d at 333. The

privity requirement of Michigan’s preclusion test was

satisfied because “the federal prosecution and the prosecution

in this case are essentially the same party, albeit of different

governments.” Ibid. The district court concludes that

Michigan law equates Michigan and federal prosecutors for

estoppel purposes. But this conclusion does not follow from

In re Forfeiture for several reasons. 

To begin with, In re Forfeiture is an appellate-level

decision, so it can give us only limited guidance in emulating

the Michigan Supreme Court. See King v. Order of United

Commercial Travelers of America, 333 U.S. 153, 160-61

(1948) (federal court construes state law by emulating the

highest court of the state). The key holding of In re

Forfeiture relies upon the Michigan Supreme Court opinion

in Michigan v. Gates, supra, but Gates merely found that a

Michigan prosecutor acted as the same party when he

represented the entire state, as when he represented a state

agency. Gates, 452 N.W.2d at 630. Gates does not imply

that separate governmental units, much less separate

sovereigns, are privies as a matter of law. 

6 United States v. Dominguez No. 02-2081

Privity between separate sovereigns is usually found only

after much factual analysis. See United States v. ITT

Rayonier, 627 F.2d 996, 1003 (9th Cir. 1980) (state and

federal environmental agencies were in privity where they

collaborated to grant and later revoke a license under jointauthority statutory scheme); compare United States v. Power

Eng’g Co., 303 F.3d 1232, 1241 (10th Cir. 2002)

(distinguishing facts and finding no privity). Michigan law

does not find privity between governmental units as a matter

of law. Quite the contrary, Gates emphasizes that such

questions require “multifaceted analysis and balancing of

competing and vaguely defined governmental and private

interests.” Id. at 630 n.12 (quoting Holland, Modernizing Res

Judicata Reflections on the Parklane Doctrine, 55 Ind. L.J.

615 , 618-19 (1980)). Michigan thus agrees with the modern

view of collateral estoppel, that privity will be found only

upon consideration of the facts of a particular case. E.g.,

United States v. Bonilla-Romero, 836 F.2d 39, 43 (1st Cir.

1987). In re Forfeiture itself is not to the contrary, although

the district court apparently did not appreciate the

significance of the words “in this case [the prosecutors] are

essentially the same party.” In re Forfeiture, 486 N.W.2d at

333 (emphasis added). 

Nor are the facts of In re Forfeiture so like those before us

as to demand the same outcome. Unlike the second

prosecutor in that case, the United States is not an arguable

stranger to the dispute now seeking to assert issue preclusion;

rather, we are asked to apply issue preclusion against the

newcomer based upon a finding of privity. The latter is a

weightier determination. Many jurisdictions have dispensed

with the privity requirement altogether as to the party

asserting preclusion, Blonder-Tongue Labs., Inc. v. Univ. of

Ill. Found., 402 U.S. 313, 326 & n.14 (1971), but never as to

the party to be precluded. Shimman v. Frank, 625 F.2d 80,

89-90 (6th Cir. 1980). 

Michigan maintains the traditional rule of “mutuality of

estoppel,” requiring both the party to be precluded and the
No. 02-2081 United States v. Dominguez 7

1

The In re Forfeiture court also found privity on the other side of the

equation, reasoning that Hawkins’s interests as criminal defendant

represented his and his family’s interests as property owners. 486 N.W.2d

at 333. Dominguez therefore suggested at colloquy that Michigan and the

United States were like a family, a warm view of federal-state relations

that this court cannot hold always is accurate. 

party asserting preclusion to have been represented at the

prior proceeding. Lichon v. American Universal Ins. Co., 459

N.W.2d 288, 298 (Mich. 1990). One might conclude that

when a Michigan court finds privity, it uses exactly the same

analysis as to either role, so the finding is precedential across

the board. But it has long been observed that in jurisdictions

that require mutuality of estoppel, “exceptions were made by

decisions that extended the benefits of preclusion through

findings of privity that surely would not have been made had

the direction of preclusion been reversed.” 18 Charles Alan

Wright, Arthur R. Miller, & Edward H. Cooper, Federal

Practice and Procedure § 4463 (1981). The Michigan Court

of Appeals takes a pragmatic, equitable approach to the

mutuality requirement. See Keywell & Rosenfeld v. Bizell,

657 N.W.2d 759, 787-88 (Mich. Ct. App. 1992), and cases

cited therein. Therefore, even the same panel of the Michigan

Court of Appeals might not have found privity had the In re

Forfeiture roles been reversed.1

 The Michigan Supreme Court has recently provided more

relevant guidance. Baraga County v. State Tax Comm’n, 645

N.W.2d 13, 17 (Mich. 2002), held that Michigan’s Tax

Commission was not bound by a consent agreement between

a county and an Indian tribe over the payment of property

taxes, because the facts presented did not show that the

county and the Tax Commission were in privity. The court

held that between governmental units, unlike private entities,

privity is not based upon an identity of interests, but only

upon an agency relationship. Baraga County, 645 N.W.2d at

17. The court also expressed its reluctance to find privity

between different governmental units, agreeing with the

general proposition that “[c]ourts have also generally found

8 United States v. Dominguez No. 02-2081

2

The United States urges us to adopt Charles as a rule of federal

common law. But it is not clear whether Charles and related cases

establish a rule of federal law or simply recognize a commonality in state

law throughout the First Circuit.

that no privity exists between state and federal governments,

between the governments of different states, or between state

and local governments.” Ibid. (quoting 47 Am. Jur. 2d

Judgments, § 700 (2003)) (emphasis added). Although

Baraga County addresses federal-state privity only in dictum,

it strongly suggests that absent a showing of an agency

relationship between the state and federal prosecutors, a

Michigan court would not find they were in privity. 

The Baraga County dictum commands our respect, the

more so because it accords with the general understanding of

the relationship between federal and state prosecutors. This

court has opined, albeit only in dictum and without analysis

of state law, that a Michigan and a United States prosecutor

were not the same party. United States v. Lloyd, 10 F.3d 1197

(6th Cir. 1993). The First Circuit Court of Appeals routinely

looks for an agency relationship to determine whether a

federal prosecution is collaterally estopped by a ruling in a

prior state prosecution. United States v. Charles, 213 F.3d

10, 21 (1st Cir.), cert. denied, 531 U.S. 915 (2000).2

Similarly, this court has recognized that successive state and

federal prosecutions may constitute double jeopardy only if

the state proceeding was a mere “tool” or “cover” for a federal

prosecution. United States v. Louisville Edible Oil Prods.,

Inc., 926 F.2d 584 (587-88) (1991) (quoting Bartkus v.

Illinois, 359 U.S. 121, 123-24 (1959)). 

In his appellate brief, and at oral argument, Dominguez

asserted that the United States did direct the state prosecution.

But there is no evidence in the record to support this

argument. Dominguez merely asserts that a state-employed

Assistant Attorney General on the state prosecution team was

also designated as an Assistant United States Attorney
No. 02-2081 United States v. Dominguez 9

involved in the federal prosecution. This court will not affirm

based upon a mere assertion made for the first time at the

appellate level. This is particularly so, because even if

supported, the facts asserted would not prove control or

agency: Dominguez does not assert that this particular state

prosecutor could or did effectively recommend dismissal, nor

that he was subject to federal control during the state

proceedings.

We conclude that a Michigan court applying Michigan law

would not find based upon the facts in the record that the

United States was in privity with the Michigan prosecutor in

the prior state proceeding. Therefore, collateral estoppel does

not bar the introduction of this evidence. 

Even if Michigan law did create privity between the federal

and state governments as a matter of law, we would have

grave doubts as to the propriety of estopping a federal

prosecutor on these grounds. As seen in this case, issue

preclusion often concludes an action as surely as claim

preclusion. See Ashe v. Swenson, 397 U.S. 436, 445 (1970)

(state is precluded from separately prosecuting alleged robber

for each victim of same robbery, where state could not prove

identity in first trial). In effect, Michigan could gravely affect

the powers of the United States acting as sovereign in its own

courts. Cf. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir.

1977) (“collateral estoppel doctrine does not apply when

different sovereigns and, thus, different parties are involved

in the litigation.”) The Full Faith and Credit Act certainly

gives the Michigan courts and legislature considerable

influence over subsequent litigation in federal court, and this

serves comity. Migra, 475 U.S. at 84. But to promote comity

is one thing, to surrender sovereignty quite another. 

The problem is illustrated by comparison to Mich. Comp.

Laws Ann. § 333.7409, which bars a Michigan prosecution

for drug trafficking based upon acts that have already given

rise to a criminal prosecution in another jurisdiction.

Dominguez urges that a Michigan courtwouldanalogize from

10 United States v. Dominguez No. 02-2081

this statute and bar a successive federal prosecution as well.

But this would let a hypothetical Michigan court do what the

state legislature may not. Michigan clearly could not by

statute restrain federal prosecutors from enforcing federal

criminal laws as to Michigan convicts. How, then, can its

courts create a uniquely-targeted rule of preclusion to do

precisely that? 

The United States in its role as prosecutor is very different

from the usual civil litigator. In Standefer v. United States,

447 U.S. 10 (1980), the Court determined that non-mutual

collateral estoppel may not be applied against the United

States in criminal cases. The Court based this decision in part

upon the great public interest in the maintenance of criminal

prosecutions despite possibly erroneous prior acquittals based

on the same facts. Standefer, 447 U.S. at 25. The public’s

interest stands in sharp contrast to the importance of the

vindication of a mere private right in the usual civil action.

Id. at 24. Just so, applying a general state preclusionary rule,

even as to a claim exclusively within the civil jurisdiction of

the United States impairs only the rights of one litigant on one

occasion; but only the United States has the power to enforce

its own criminal laws. It should not be lightly inferred that

Congress intended to put this fundamental attribute of

sovereignty at the mercy of a state legislature’s or judiciary’s

ability to say, as it were, “inside our state borders, the federal

government is us.”

Such an expansive reading of the Act could have

mischievous results. The federal government would doubtless

be obliged to involve itself closely in all Michigan criminal

prosecutions implicating some federal crime. The resulting

interference with the Michigan Attorney General’s office

would waste federal and state resources. It might also impair

the very goal of the Full Faith and Credit Act, comity. See

Migra, 475 U.S. at 84. And the mischief need not be

confined to the criminal arena but could spread to other areas

of overlapping federal and state responsibility. Instead of

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

occasionallyencompass 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, andwe therefore REVERSE the

order of the district court and remand for further proceedings

in accord with this opinion.