* The Ho nora ble James S. Gwin, United States Distr ict Judge for the

No rthern D istrict of O hio, sitting b y design ation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0069P (6th C ir.) File Name: 04a00 69p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff- Appellant

,

v.

E DWARD D OMINGUEZ , Defendant-Appellee. X

- - - -
> , - - N No. 02-2081

Appeal from the United States District Court for the Eastern District of Michigan at Ann Ar bor. No. 01-90030—Marianne O. Battani, District Judge.

Argued: October 21, 2003
Decided and Filed: March 4, 2004

Before: BOGGS, Chief Judge; GIB BONS, Cir cuit Judge ; and GWIN, District Judge. *

_________________ COUNSEL

AR GUED: David J. Debold, ASSISTANT UNI TED STATES ATTORNEY , Detroit , Michig an, for A ppellant

. 2 United States v. Dominguez No. 02-2081

Richard D

. Korn, Detroit, Michigan, for Appellee. ON BRIE F: David J. Debold, ASSISTANT UNI TED STATES ATTORNEY , Detroit , Michig an, for A ppellant

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

.

_________________ OPINION

_________________ BOGGS, Chief Judge. The United States appeals from an interlocutory

order in

its prose cu tion against Edward Domin gue z. The district court suppressed key evidence o n the basis of is su e pre clusion because the same evidence had been s uppressed in a previous Michigan state court proceeding

again st D ominguez. Because the district court misinterpreted

applica ble Michigan law, w e REVERSE t his order and remand for further procee dings consistent with our holdings

. I

This case presents the interesting issue of what preclusive force a Mich igan st ate criminal proceeding may have upon the course of a subsequent federal cr iminal proceeding. The United States charges Domingue z with drug trafficking, under 21 U.S.C. § § 8 41(a)(1) and (b)(1)(B )(ii). Its case depe nds large ly up on ev idence s eized in Dominguez’ s automobi le pursuant to a Michigan

state search warrant. That war rant, in turn, was issued based upon an affi d avit setting forth the report of a confidential informant that he had seen a kilogram of cocaine stored in a secre t compar tment of a

n automobi le reg ister ed toRuben

Rodri gue z, an a

lias f or Do ming

uez.
A joint state-federal task force, the Western Wayne Interdiction

Team, executed the searc h warr ant and found cocaine in th e car (al thou gh n ot in a secret compartment). The State of Mich ig an then brought state-law drug- trafficking charges agains tDominguez. The state trial court suppressedNo. 02-2081 United States v. Dominguez 3

all evidence obtained as a result of the sear ch warrant, holding that the warrant had been obtained in violation of

the Four th Amendment

to the United States Constitution. The court then dismissedthe state

charg es aga

inst D ominguez without prejudice. Michigan did not appeal from that evidentiary ruling.

After the state case was dismissed, the United States brought this a ction bas ed on fed eral-la w charg es similar

to those brought by Mic

higan i n the p rior state court action. Dominguez again moved to suppres s the evidence. The districtcourt granted his motion because it found that the United States wa s colla

terally estopped f

rom litigating that issue as a p ri vy t o the state of Michigan. The United States appeals.

II

We review de novo a district court de cision ba sed on cla im

or issue preclusion. Heyliger v. St a te Univ. &

Cmty. Coll. Sys. of Tenn. , 126 F.3d

849, 851 ( 6th Cir. 199 7). Our a naly sis begins with the Full Faith and Cred it Act, 28 U.S.C. § 1738, whichreads in relevant part: “[t]he records and judicial p roceed ings of any

court of any . . . State . . . sh all haveth e same full f

aith and credit in every

court within the United St ates . . . as the

y ha ve by law or usa

ge in the courts of [th e state] from which they a re take n .” Ther

efore, we must normall y giv e a Michi gan sta

te court judgmen t “the sa me p reclus ive effect as would be given that judg ment under the law of the State.” Migra v. W arre n C ity School Dist. Bd. of Educ.
, 465 U.S. 75, 81 (19 84). This rule applies to issues adjudicat edin a state-court criminal proceeding. Allen v. McCurry
, 449 U.S. 90

(1980) ( plaintiff cannot r elit igate in fede ral civil rights action the issue of constitutionality of search, adjudicated in his prior state criminal conviction).

Of course, a Michig an state cou rt never

could sit in judgment over the prose cution of a federal crime, as 18 U.S.C. §3231 creates exclusive federal criminaljurisdiction, 4 United States v. Dominguez No. 02-2081

so there is n

o Mi chig an case law directly on point. This by itself does not prevent

u s from applying

the Full Faith and Credit Act. The Supr eme C ourt res olved a si milar issue in Marrese v. American Acad. of Orthopaedic Surgeons , 470 U.S. 373 (1985), which d ire cted the appellate court to look first to the stat

e law of p

reclusi on in or der to determine whether a prior state court judgment precluded an anti trust claim within the

exclusive

jurisdict ion of the federa l courts. Only after making t hat dete rmination would the federal court consider whether the Full Fa

ith and Cre dit Act sho

uld ap pl y. Mar rese , 470 U.S. at 381-82. Because a state court cou l d

never li te ra ll y a pply its preclusion rules to that particular claim, the federal court

applies the state’s general prec lusion rules. Ibid. Marrese

involved claim preclusion, but it relied principa lly upon Kremer v. Chemical Const. Corp. , 456 U.S. 4 61, 479 & n.2 0 (1982), which use d the state law of issu e preclusion. Ibid . This Circ uit therefore understa

nds Marrese to require a feder al court to look first to the rendering state’s law of issue preclusion, even when the issue in question arises inthe conte

xt o f 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 thou

gh th e Mich igan courts could never literally confront our situation, we can a nd must resolve the Michigan law ques tions bef

ore aski ng whet her some exception to the Full Faith and Credit Act may apply.

III

Under Michi gan

law, the party a sserting preclusion bears the burden of proof. Detroit v . Qualls , 454 N.W.2d 374, 383 (Mich. 1990). A court mu st apply issue preclusion when 1) the parties in bo th pr oc ee di ng s a re th e s am e o r i n p ri vi ty, 2) there wa s a valid, final judg ment in the

first procee ding, 3) the same issue was act ually li tigat ed in t he fir st pro ceedin g, 4) that iss ue was ne cessar

y to the judg ment, and 5) the pa rty agains twhom pre clusion is a sserted (or its pr iv y) ha d a full and fair opportuni

ty 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 the se factors in conten

tion here is the fir st. The district

court found that Michigan l aw would treat the federal gover nment as“esse ntially the same party

” as the State

for thes e purposes

. We disagree.

The district court, and

Dominguez, rely e

ntirely upon In re Forfeitur e of $1,159,420 , 486 N.W.2d 326 (Mich. Ct. App. 1992). There, the state

of Michig an soug

ht to seize pro

perty from Robert Hawkins and his wife and minor children. In a prior federal criminal case ag ai n st Hawkins for drug trafficking, a federa

l district court

had upheld the validity of

a search warrant used to ge t evidence against him. In the state forfeiture procee ding, the state re lied on tha

t same evidence. Alth ough the parties wer e not identical on either side, the Michigan appellate co urt he ld that the defendants were collater ally estopped from co n testing the validity of the search warrant. In re Forfe iture , 486 N.W.2d at 333. The pri vity requirement of Michigan’s preclusion test was satisfied because “the federal prose cution and the prosecution inthis case are essential ly t he same party , albeit of different governments.” Ibid. The d ist rict court concludes that Michigan law equates Michigan and feder al prosecutors for estoppel purposes

. But this conclusion does not follow from In re Forf

eiture for several reasons.

To beg in with, In re Forfeiture is an appellate-level decision, so it cangive us only limited g uidance inemulating the Michigan Supreme Court. See King v . Order o f United Commercial

Travelers of America , 333 U.S. 15 3, 160-61 (1948) (feder

al court construe s state la

w by emula ti ng the highest courtof the state). The key holding of In re Forfeitur e relies upon

the Michigan

Supreme Court opinion in Mi chigan v. Gates
, supra , but Gates merely found tha

t a Michigan prosecutor acted as the same pa r ty when he represented

the entir e state, as when he repre sente d a stat e ag en cy. Gates
, 452 N.W.2 d at 630. Gates does not im ply that separa te gove rnmenta l units, muc

h less s ep arate sovereigns, are privies as a matter of law. 6 United States v. Dominguez No. 02-2081

Privity betwee n sepa rate sov ereig ns is usual ly f

ound only after much factual ana

lys is. See United Sta tes v. ITT Rayonier , 627 F.2d 996, 1003 (9th Cir. 1980) (state and federal environmental ag encies w ere in privity where the

y collaborated

to grant and later revoke a licenseunder jointauthority statutory scheme) ; compare

United States v. Power Eng’g Co. , 303 F.3d 1232, 1241 (10th Cir. 2002) (dis t inguishing 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 analy sis and balancing of competing an d v aguely

defined gover nmental a

nd privat e interests.” Id. at 630 n.12 (quoting Holland, Modernizing Res Judicata Reflections on the Parklane Doctrine , 5 5 Ind. L. J. 615
, 618-19 (1980)). Michigan thus agre es with the modern view of collateral estoppel, tha t privi ty w

ill be foun

d only uponconsider ation of

the facts of a particular case. E.g. , United States v. Bonilla-Rom ero , 836 F.2d 39, 43 (1st Cir. 1987). In re Forfeiture itself is not to th e c on tr ar y, altho ugh the district court apparently did not ap pr eciate the significan ce of the wo rds “ in this case [the prosecutors] are essentia lly the same party .” In re

Forfeitur e , 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 arg u able stranger to the dispute now seekin g to assert issue preclusion; rather, we are asked to ap ply iss ue preclusion against the

newcomer

ba sed upon a finding

of privity . The latt

er is a weightier determination. Many jurisdictions have dispensed with the privity requireme

nt altogether as to t

he part y assertingpreclusion, 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 pre cluded. Shimman v. Frank, 625 F. 2d 80, 89-90 (6th Cir. 1980).

M i chigan maintains the traditional rule of “mutuality of estoppel,” requ iri ng both the party to be precluded and theNo. 02-2081 United States v. Dominguez 7

1 The In re Forfeiture court also found privit y on the other si de of the equation, reasoni ng that Hawkins’ s int erest s as cr iminal defen dant represent ed his and his family’s inter ests as p rop erty owners. 486 N.W.2d at 333. Dominguez th erefore sugges ted at colloquy that Michigan and the United State s were l ike a f amily , a w arm view of federal- state rel ations that this co urt can not ho ld alwa ys is accu rate. party assertin g prec lusion to ha

ve been repres ented at

th e prior proceeding. Lichon v. American Universal Ins. Co. , 459 N.W.2d288, 298 (Mich. 1990). One might conclude that when a Michigan court finds privity , it uses exactly the same analy sis as to either

role, so t he findin g is pre cedenti al acro ss the board. But

it has long been observed that in jurisdictions that require mutuality of e stoppel, “exceptions were made by decisions that exte nded t he ben efits of prec lusi on th rough findi ngs of privity

that sure ly

would not have been made had the direction of

preclusion been reversed.” 18 Charles Alan W righ t, Arthur R. Miller, & Edward H. Cooper, Federal Practice and

Procedure § 4463 (1981). The Michigan Court of Appeal s t akes a pragmatic, equitable appr oach to the mutuality requirement. See Keywell & Rose nfeld v. B izell
, 657 N.W.2d 759, 787-88 (Mich. Ct. App. 1992), and cas es cited therein. Therefore, even the same panel of the Michigan Courtof Appeals might not have found

privity had the In re Forfeiture roles been reversed. 1
The Michigan

Supreme Court has recently pr ovided more relevant guidance. Baraga Cou nty v. State TaxComm’n , 645 N.W.2d 13, 17 (Mich. 2002), held that Michigan’s Ta x Commission was not bound by a conse nt agreement between

a county and an I

ndian tribe over the pay

ment of pro pert y taxes, because the facts presented did not show that the county and the T ax Commiss io n were in privity. The court held that between governmental units, unlik

e privat e entities, privity is not based upon an iden tit y of interest s, but only uponan agency

relationship. Baraga Cou nty , 645 N.W.2d at 17. The court also expressed its reluctance to find pr ivi ty b etwe endifferent governmental units, agr eeing with the general propositi o n that “[c]ourts have also generally found 8 United States v. Dominguez No. 02-2081

2 The Unit ed S tates urg es us to a dop t Charles as a rul e of f ederal

common law. B ut it is not cl ear whether Charles and rela ted cases establish a rul e of

federallaw or s imply recogniz e a com mon ality in state law thro ugho ut the Firs t Circu it. that no privity

exists betweenstate

and feder al govern ments , between the gov ernment s of diffe

rent stat es, or be tween sta te and local governments.” Ibid. (quoting 47 A m. Jur. 2d Judgmen ts , § 700 ( 2003) ) (emp hasis added ). Alt hough Baraga County addresses federa l-state privity

only in dictum, it strongly suggests that absent a showing of an ag ency relation ship between the state and federal prose cu tors, a Michigan court would not find they were in privity.

The Baraga Coun ty dic tum commands our respect, the

more so because it accords with the general understanding of the relation ship betwe en fede ral and s tate pro secutor s. This court has opine d, albeit

only in dictum a

nd without a

naly sis of state law, that

a Michig an and a

United Sta

tes prose cuto r were no t t he sa me pa rt y. United States v. Lloyd , 10 F.3d 1197 (6th Cir. 1993). The First

Circuit Cou

rt of Appe als routinely looks for an agen cy re lationship to determine whether a f e deral prosecution is collaterally estopped by a r

uling in a prior state prosecution. United States v. Charles , 213 F.3d 10, 21 (1st Cir.), cert. denied, 531 U.S. 915 (2000). 2 Si mi la rl y, this court has recognized that successivestate and federal prosecution s ma y c onstitute d ouble jeo pardy only if the state proceeding was a mere “tool” or “cover” for a feder

al 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)).

Inhis appellate b rief, and at oral argument, Dominguez asserted that the United States did direct the state prosecution. But there is n

o evidenc e in

the reco rd to support this

ar gum ent. Dominguez merely asserts that a state-employ ed AssistantAttorney

General on

the state prosecution team was also designated as an Assistant United States AttorneyNo. 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 f irs t time at the app e llate level. Th

is is parti cularly

so, beca use even if supporte d, the facts asserted would not prove control or

a ge nc y: Dominguez does not assert that this par

ticular s tate prosecutor

could or did effectively

recommend

dismissal, nor that he was subject to

federa l control d

uring the state procee dings.

We conclude

that a Michigan court

applying Michig an law would not fi nd based upon the facts in the record that the United States wa s in privity

with the Mi chigan

prosecu tor in the prior sta

te proceeding. Therefore , collateral estoppel does not bar the introduction of this evidence.

Even if Michigan

law did cr

eateprivity between the f

ederal and state governments as a matter of law, we would have grave d oubts as to the propriety of e stopping a feder a l prosecutor

on these g

rounds. A s seen in t

his case
, issue preclusion

often concludes a

n actio n as surely

as claim preclusion. See Ashe v. S wens on , 397 U.S. 436, 445 (1970) (state is precluded from separately prosecuting alleged

robber for ea ch vi ct im of

sa me ro bb er y, where s tate cou ld not prove identity in first trial). In effec

t, Michigan

could g ravely 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) (“collat eral estoppel doctrine does not apply when different soverei g ns and, thus, different parties are involved i nthe litig ation.”)

The Full

Faith an d Credit A ct certa

in l y gives the Michigan co u rts and le gislatu re consi derable influence over subsequent litigati on in

federa l court, a nd this

serves comity. Migra , 475 U.S. at 84. But to promote comit y 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 p rosec ution for drug tr affick ing based up on acts that have already given rise to a criminal prosecut i on in another jurisdiction. Dominguez urges that a Michigan cou rt would a nalogize from 10 United States v. Dominguez No. 02-2081

this statute and bar a successive federa l prosecution

a s well. But this would let a hypothetical Michigan court do what the state le gi sl at ur e m ay n ot . M ic hi ga n c le ar ly could not by statute restrain federal prosecutors from enforcing federal criminal laws as to Michigan convicts. How, then , ca n its courts create a uniquely

-targeted rule of

preclusion to do pr ec ise ly tha t?

The United Sta

tes in its role as prosecutor is very different fromthe usual civillitigator. In Standefer v. United States
, 447 U.S. 10 (1980), the Cour t deter mined that non-mutual collateral estoppel may not be appliedagainst the United States in criminal cases. The Court based this decision in part uponthe great public interest in the maintenance of criminal prosecutions de sp it e p os si bl y errone ous prior acquittals based

onthe same facts. S

ta ndefer , 447 U.S. at 25. The public’s interest stands in sharp contras t to the importance of the vindicationof a mere p r ivate right in the usual civil action. Id. at 24. Just so, applying a ge neral state preclusionary

rule,

even as to a cl aim exclusi

vely within the

civiljurisdiction 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 shoul d not be lightly infer red that Congre ss intended

to put this f

undamental attribute of soverei gnty

at the mercy

of a state legislature’s or judiciary ’s ability to sa y, as it wer

e, “insid e our sta te borders, the federal government is us.”

Such an expansive reading of the Act could hav e mis chievous results. The federal government would doubtles s be obliged to involve i tsel f closely in all Michig an criminal prosecutions imp l icating some federal crime. The r esulting in terferencewith the Michigan Attorney General’s office would waste fe deral a

nd state resourc es. I

t might al so impair the ve ry g o al of the Full Faith and Credit Act, comity

. See Migra , 475 U.S. at 84. A nd the mischief need not be confined to the criminal

arena b ut could spread to other areas of overlap pin g fede ral and state responsibility. I nstead of assessing the sove rei gns’ re lationship on a case -by-case b asis,No. 02-2081 United States v. Dominguez 11

as in ITT Rayonier , supra , the mere fact of overlap would be enough t o creat e priv ity betwe en agenc ies. C onfro ntin g a similar issue, t he S upreme Co

urt held that a Calif

ornia sta te court ejectment action against tenants of the United States did not estop the United States, even though California m ad e landlords privy to their tenants in such ac tions. Carr v. United States , 98 U.S. 43 3, 437 (1878). T o rule oth erwise would be to find, unacceptably , that California had subjected the United Sta

tes to suit w

ith ou t its conse

nt or eve n its kn owle dge. Id. at 438. Carr may not fully

accord with the modern view o f sove reign immunity, but its general concerns remain valid. Generally

applicable state rules of privity may occasionall y e ncompass

the Unite d States in

its sovere ign role and preclude some claim or issue. ITT Rayonier , 627 F.2d at 1002-03 & n.7. But it see ms unlikely

that a pr

ivity rule targeted solely at the United Statesas prosecutor would come within the bounds of the Full Faith and Credit Act.

Becau se the United States was not party or privy to the state court proceeding ag ainst Dominguez, it is not collater ally estopped from litigating the admissibility of the evidence against Doming

uez, and we therefore

REVERSE the order of the district court and remand for further

procee dings in accord with this opinion.