MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2015 ME 109

Docket: Ken-14-362

Argued: June 16, 2015

Decided: August 11, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

STATE OF MAINE

v.

WADE R. HOOVER

JABAR, J.

[¶1] Wade R. Hoover appeals from an order of the trial court (Murphy, J.) 

denying his motion to dismiss the State’s indictments of thirteen counts of gross 

sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2014). Hoover argues that the 

State’s indictments violate constitutional protections against double jeopardy 

because (1) he has already been punished for the sexually assaultive conduct by 

way of his federal prison sentence related to federal child pornography convictions;

and (2) the state and federal investigative and prosecutorial agencies colluded to 

the extent that they ceased to operate as separate sovereigns, thus triggering an 

exception to the “dual sovereignty” doctrine of double jeopardy jurisprudence. We 

affirm.
2

I. BACKGROUND

[¶2] Viewed in the light most favorable to the State, the motion record

supports the following facts. See Heon v. State, 2007 ME 131, ¶ 5, 931 A.2d 1068. 

[¶3] On October 3, 2012, U.S. Homeland Security Investigations (HSI) 

agents and Maine State Police (MSP) officers jointly conducted a consented-to 

search of computers at an office in Augusta, after the MSP Computer Crimes Unit 

received a tip that a computer registered to that office was the source of child 

pornography. The investigation led to Hoover, who admitted to his involvement.

Investigators discovered on Hoover’s computer hundreds of images of child 

pornography as well as videos that depicted Hoover sexually assaulting children. 

State police immediately took Hoover into custody on a charge of possession of 

sexually explicit materials (Class C), 17-A M.R.S. § 284(1)(C) (2014). 

[¶4] Hoover was arraigned on the charge of possession of sexually explicit 

materials on October 5, 2012. That same day, federal agents obtained a warrant for 

Hoover’s arrest. The warrant was not immediately executed, however, and instead 

was filed as a detainer so that Hoover could be taken into federal custody if the 

State dismissed its charge or if Hoover were to be released from state custody. 

[¶5] Federal and state authorities continued to investigate Hoover while he 

remained in state custody between October and December 2012, with HSI agents 

and MSP detectives often conducting joint searches and interviews. During that 
3

time, the Kennebec County District Attorney’s Office communicated with federal 

prosecutors regarding the status of the State’s case against Hoover. An October 9, 

2012, Kennebec County District Attorney’s Office internal memorandum reads:

Feds will be taking the production piece . . . There will also be 

potentially a [gross sexual assault charge] in Skowhegan . . . [D]o not 

let [Hoover] plead to [possession of sexually explicit materials] before 

all State charges are brought. [Dismiss] if he does.

In early November, the Kennebec County District Attorney told an Assistant 

United States Attorney that the state charge would be dismissed in December so 

that the federal charges could be pursued. The D.A.’s handwritten note on the 

State’s criminal complaint for possession of sexually explicit materials reads: “We 

will dismiss to federal prosecution on December 1st.”

[¶6] Hoover remained in state custody until he went into federal custody on 

December 7, 2012, after the State dismissed the charge of possession of sexually 

explicit materials. On February 5, 2013, he waived federal indictment and pleaded 

guilty to sexual exploitation of a child, 18 U.S.C.S. § 2251(a), (e)(1) 

(LEXIS through PL 114-37, approved 7/20/15) (“production” charge), and 

possession of child pornography, 18 U.S.C.S. § 2252A(a)(5)(B) (LEXIS through 

PL 114-37, approved 7/20/15) (“possession” charge). Sentencing was scheduled 

for July 2, 2013. 
4

[¶7] On March 14, 2013, the Somerset County Grand Jury indicted Hoover 

on one count of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C), and on 

May 30 the Kennebec County Grand Jury indicted him on twelve additional counts 

of gross sexual assault (Class A), id. On June 25, 2013, he was arraigned on and 

pleaded not guilty to all of the gross sexual assault charges. 

[¶8] On July 2, 2013, the United States District Court for the District of 

Maine (Woodcock, J.) sentenced Hoover to 360 months in prison on the production 

count and 120 months in prison on the possession count, to be served 

consecutively, as well as a lifetime term of supervised release. In calculating 

Hoover’s sentence the United States District Court expressly considered Hoover’s 

sexual assault of the young victims as aggravating factors that increased his 

sentence.

[¶9] On February 13, 2014, Hoover filed a motion to dismiss the State’s

indictments for gross sexual assault, arguing that the State’s prosecution subjected 

him to double jeopardy in violation of both U.S. Const. amend. V and Me. Const. 

art. I, § 8. After a hearing, the court denied Hoover’s motion by written order. 

The court found that, although Hoover’s “federal sentence was directly and 

significantly increased as a consequence of his sexual assault of the two victims” 

such that “the current [s]tate prosecution, if successful, could result in [Hoover] 

being punished twice for the same conduct,” the dual sovereignty doctrine 
5

nonetheless permitted the State’s prosecution. The court rejected Hoover’s 

argument that the “Bartkus exception to the general rule allowing double 

punishment by separate sovereigns” required dismissal of the State’s charges, see 

Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959), finding that “[t]here is simply no 

evidence . . . that the state prosecutors in this case have been so dominated or 

manipulated by the prosecutors in the federal case” such that the exception would 

apply, see United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996). Hoover 

appeals.

II. DISCUSSION

[¶10] Hoover contends that the court erred in denying his motion to dismiss1

because the State’s criminal charges violate his constitutional protections against 

double jeopardy. See U.S. Const. amend. V; Me. Const. art. I, § 8. Specifically, he 

contends that (1) his federal prison sentence already subjected him to punishment 

for the same criminal acts for which the State now seeks to punish him, and (2) the 

dual sovereignty doctrine does not permit the State’s prosecution because the 

doctrine’s so-called “Bartkus exception” applies. “Whether a criminal prosecution 

violates the state or federal constitutional prohibition against double jeopardy is a 

 1

 Although Hoover appeals from an interlocutory order, “[a]n order denying a motion to dismiss on 

double jeopardy grounds is immediately appealable as an exception to the final judgment rule.” State v. 

Davis, 580 A.2d 163, 164 n.1 (Me. 1990).
6

question of law that is reviewed de novo.” State v. Mitchell, 1998 ME 128, ¶ 4, 

712 A.2d 1033.

A. Duplicative Punishment

[¶11] The double jeopardy clause bars “multiple punishments for the same 

offense.” State v. Labbe, 2009 ME 94, ¶ 4, 979 A.2d 693 (quotation marks 

omitted). The traditional test for determining whether multiple punishments are 

for the “same offense” for double jeopardy purposes—the “same-elements” test, 

sometimes referred to as the “Blockburger test”—“inquires whether each offense 

contains an element not contained in the other; if not, they are the same offen[s]e 

and double jeopardy bars additional punishment and successive prosecution.” 

United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United 

States, 284 U.S. 299 (1932)). As Hoover concedes, the same-elements test is 

inapplicable here because the state crime of gross sexual assault and the federal 

crimes of sexual exploitation of a child and possession of child pornography 

contain different elements. Compare 17-A M.R.S. § 253(1)(C), with 18 U.S.C.S.

§§ 2251(a), (e)(1), 2252A(a)(5)(B).

[¶12] However, citing Witte v. United States, 515 U.S. 389 (1995), Hoover 

argues that, because the sexual assaults weighed so heavily in the federal court’s 

sentencing decision on the production and possession charges, the State’s current 
7

prosecution related to that same conduct presents the risk of unconstitutional 

duplicative punishment.

[¶13] In Witte, the defendant was convicted of federal marijuana 

distribution charges. Id. at 391-93. In imposing a sentence on the marijuana 

conviction, the federal sentencing court took into account the defendant’s prior 

conduct related to the importation of cocaine because it considered the 

cocaine-related activities to be “part of the same continuing conspiracy,” and 

therefore “relevant conduct” for sentencing purposes. Id. at 393-94. The 

defendant was later indicted on cocaine importation charges based on the same 

conduct that the sentencing court had previously considered. Id. at 394-95. 

[¶14] The United States Supreme Court held that the Double Jeopardy 

Clause was not implicated by the second indictment, reasoning that “use of 

evidence of related criminal conduct to enhance a defendant’s sentence for a 

separate crime within the authorized statutory limits does not constitute 

punishment for that conduct within the meaning of the Double Jeopardy Clause.” 

Id. at 399. Rather, the Court held, a defendant in that situation is “punished, for 

double jeopardy purposes, only for the offense of which the defendant is 

convicted.” Id. at 397. However, the Court indicated that if the enhancing role 

played by the relevant conduct is too significant, “consideration of that conduct in 
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sentencing [may] become a tail which wags the dog of the substantive offense.” 

Id. at 403 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)).

[¶15] Here, the United States District Court expressly considered Hoover’s 

sexually assaultive conduct in sentencing Hoover on the federal production and 

possession charges, and substantially increased Hoover’s sentence as a result of 

that conduct. If Hoover’s sexually assaultive conduct effectively became the 

operative factor in Hoover’s federal sentence, the State’s current prosecution 

might, as the trial court found, result in Hoover being punished twice for the same 

criminal conduct.2

[¶16] However, we need not decide whether the sexual assaults became the 

tail that wagged the dog of the substantive federal offenses. Even if the State’s 

current prosecution subjects Hoover to the risk of being punished twice for the 

same conduct, such duplicative punishment is constitutional when, as is the case 

here, the punishments are imposed by separate sovereigns. 

B. Dual Sovereignty

[¶17] The “dual sovereignty doctrine” provides that “prosecutions under the 

laws of separate sovereigns do not, in the language of the Fifth Amendment, 

subject the defendant for the same offen[s]e to be twice put in jeopardy.” Mitchell, 

 2

 We note that if Hoover is eventually convicted of the gross sexual assault charges, the trial court 

could consider, as a basis for a downward departure in the resulting sentence, that the sexually assaultive 

conduct underlying the offenses has previously been taken into account in sentencing for a different 

offense. See Witte v. United States, 515 U.S. 389, 405-06 (1995).
9

1998 ME 128, ¶ 6, 712 A.2d 1033 (quotation marks omitted). Thus, successive 

federal and state prosecutions and punishments for the same conduct may proceed 

without violating constitutional protections against double jeopardy. See United 

States v. Lanza, 260 U.S. 377, 382 (1922); State v. Castonguay, 240 A.2d 747, 

749-50 (Me. 1968). However, Hoover contends that Bartkus, 359 U.S. at 123-24, 

provides an exception to the dual sovereignty doctrine when a state prosecution is 

merely a “sham” or a cover for a federal prosecution such that the state acts only as 

a “tool” of the federal entity.

[¶18] Contrary to Hoover’s argument, there is no evidence of a “sham” 

prosecution here, nor is there evidence that the state prosecutors acted merely as 

“tools” of the federal prosecutors. See id. at 123. Rather, the record reveals many 

instances of each sovereign acting to protect its own interests, and collaborating 

when those interests intersected. Guzman, 85 F.3d at 828 (1st Cir. 1996)

(“Cooperative law enforcement efforts between independent sovereigns are 

commendable, and, without more, such efforts will not furnish a legally adequate 

basis for invoking the Bartkus exception to the dual sovereign rule.”). Although 

federal authorities benefited from the State’s maintaining of custody over Hoover,

3

the record shows that the State’s decision to immediately arrest Hoover was 

 3

 The court heard testimony that the State’s custody of Hoover allowed federal authorities more time 

to investigate Hoover without triggering federal Speedy Trial Act timelines. See 18 U.S.C.S. § 3161(b) 

(LEXIS through PL 114-40, approved 7/30/15).
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motivated not by a desire to act as a tool for federal prosecutors, but by public 

safety concerns. Further, the Kennebec County D.A.’s office was already 

considering charging Hoover with gross sexual assault shortly after Hoover’s arrest 

in October 2012, and it ultimately pursued those charges. 

[¶19] Because there is no evidence to sustain Hoover’s contention as to the 

applicability of the so-called Bartkus exception to the dual sovereignty doctrine, 

double jeopardy principles do not bar the present state prosecution, regardless of 

any potential for duplicative punishment. 

The entry is:

Judgment affirmed.

On the briefs and at oral argument: 

Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellant 

Wade R. Hoover

Meaghan Maloney, District Attorney, Prosecutorial District IV, 

Augusta, for appellee State of Maine

Kennebec County Superior Court docket number CR-2013-486

Somerset County Superior Court docket number CR-2013-72

FOR CLERK REFERENCE ONLY