No. 13116 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

THE STATE OF MONTANA on the relation of 

ROBERT R. ZIMMERMAN, 

Relator, 

THE DISTRICT COURT OF THE FOURTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, in and 

for the COUNTY OF MISSOULA, and the HONORABLE 

EDWARD T. DUSSAULT and HONORABLE JACK L. GREEN, 

DISTRICT JUDGES THEREOF, 

Respondents. 

- - - 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relator : 

Edward A. Cummings argued, Missoula, Montana 

For Respondents: 

Robert L. Deschamps 111, County Attorney, argued, 

Missoula, Montana 

Hov - 6 1975 

Filed : 

Submitted: September 9, 1975 

Decided : NOV - 6 1975 

0 

Clerk 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an application for a writ of supervisory control 

or other appropriate writ. Petitioner pled guilty to a charge 

of misusing grant monies awarded him to do research. Petitioner 

was sentenced by the federal court. He then petitioned the 

state district court to drop all state charges pending against 

him evolving out of what petitioner claims was the same transaction 

as defined by sections 95-1711 and 95-1703(1), R.C.M. 1947. The 

district court denied the motion and petitioner applied to this 

Court for a writ of supervisory control or other appropriate writ. 

Between July 1, 1968, and July 1, 1973, petitioner Robert 

R. Zimmerman, a former professor at the University of Montana, 

was in charge of research under various grants deposited with the 

University of Montana for the purpose of conducting scientific 

research into the effects of malnutrition on monkeys. 

Two basic grants were involved in petitioner's primate 

research: (1) A series of private grants made by the Nutrition 

Foundation Inc., and given to the University of Montana Foundation, Inc., a nonprofit corporation which is the contracting 

agent for research projects which are performed at the University 

of Montana. (2) A grant consisting of a series sponsored by the 

United States Department of Health, Education and Welfare, and 

which was also given to the University of Montana Foundation. 

Monies received from these and other grants were physically 

co-mingled with other monies received by the U of M Foundation 

when placed in several banks in the Missoula area to form what 

is called a "local pool of funds". Charges made to grants administered by the U of M Foundation were paid out of the "local 

pool" by means of a check from the U of M drawn on the entire "pool". 

A separate set of books was kept on each grant; purchases 

made against grant funds were charged by the researcher to the 
specific grant account which was to pay for the purchase; the 

University would debit the specific grant account for the purchase; and, any monies left in a grant account at the termination of the grant project were returned to the grantor. 

In January 1973 officials of the U of M were advised 

of some irregularities in the types of charges made against the 

grant accounts administered by petitioner. Petitioner was 

apprised of the situation and asked for an explanation. 

Several days later they were contacted by counsel for 

petitioner and advised of the possibility there may have been 

mistakes in judgment as well as billing errors by vendors. It 

was arranged that petitioner would review the charges made to 

the grants in order to seek out the errors. At the conclusion 

of this review, counsel for petitioner presented a list of what 

he termed "disallowable purchases" and a letter explaining the 

list. A check in the amount of $11,762.92 was also presented 

to the University to reconcile the accounts. Disallowable purchases were found in both the federal HEW grant accounts and 

in the private Nutrition Foundation grant accounts. 

An audit was conducted by the University's Internal 

Auditor. His audit revealed numerous apparently fraudulent 

charges against the grant account not listed in petitioner's 

list of disallowable purchases. 

Subsequently, a joint investigation between the Federal 

Bureau of Investigation and the Missoula county attorney's office 

was conducted into the matter, and on December 13, 1973 petitioner 

was charged by information in state court with 36 counts of embezzlement under former section 94-1501, R.C.M. 1947. These counts 

covered charges against the private Nutrition Foundation grants 

for a period of time beginning on September 16, 1969, and ending 

December 29, 1972. On the same day, December 13, 1973, petitioner 
was arraigned in federal district court on an indictment charging 16 counts of violating Section 1001, Title 18 U.S.C. The 

specific acts charged were that petitioner had submitted for 

payment out of the federal HEW grant monies certain invoices 

for items not legitimately associated with the grants. The 

federal counts covered charges against the HEW grants for a 

period from September 18, 1970, until October 20, 1972. The 

state charges were limited to monies misused from the private 

fund, whereas the federal charges dealt with monies from the 

HEW grant. 

On August 12, 1974, petitioner pled guilty to one of the 

counts charged in the federal indictment. He was subsequently 

sentenced to 3 years' imprisonment, with all but 60 days suspended 

on the condition that he contribute 40 hours per month to public 

service. 

After the federal sentencing, petitioner filed a motion 

to dismiss in state district court under the provisions of sections 

95-1711 and 95-1703(1), R.C.M. 1947. Hearings were held on these 

motions, and were denied. Petitioner has now applied to this 

Court for an appropriate writ to review the district court's refusal to dismiss the information against him. 

The issue before this Court is whether the district court 

erred in refusing to dismiss the information charging 36 counts 

of embezzlement under former section 94-1501, R.C.M. 1947, after 

petitioner pled guilty to the one federal indictment under section 

1001, Title 18 U.S.C. 

Petitioner argues that if his federal conviction was for 

an offense which arose from the same transaction as the offense 

for which the state now seeks to prosecute him, then the state 

prosecution is barred by section 95-1711, R.C.M. 1947. 

The portion of 95-1711 which defines "same transaction" reads as follows: 
"95-1711. Effect of former prosecution and 

multiple prosecutions. (1) Definition of 

terms. 

"(a) The term 'same transaction' includes conduct 

consisting of: 

"(i) a series of acts or omissions motivated by 

a purpose to accomplish a criminal objective, 

and necessary or incidental to the accomplishment 

of that objective; or 

"(ii) a series of acts or omissions motivated by a 

common purpose or plan and which result in the 

repeated commission of the same offense or affect 

the same person or the same persons or the property 

thereof. " 

The operative portion of section 95-1711 which applies 

to this case is found in subsection (4)(a) which reads: 

"(4) Former prosecution in another jurisdiction-- 

when a bar. When conduct constitutes an offense 

within the concurrent jurisdiction of this state 

and of the United States or another state or of 

two courts of separate and/or concurrent jurisdiction in this state, a prosecution in any such 

other jurisdiction is a bar to a subsequent prosecution in this state under the following circumstances : 

"(a) The first prosecution resulted in an acquittal 

or in a conviction * * * and the subsequent prosecution is based on an offense arising out of the 

same transaction." 

In reviewing the above quoted statutes, this Court does 

not find that the charges in the indictment and the information 

were a series of acts or omissions motivated by a purpose to 

(I accomplish a criminal objective as defined in section 95-171L(a) (i). 

Each charge in the indictment and each charge in the information 

was a separate act by petitioner. Therefore, for this Court to 

find that the same transaction is involved in both the indictment 

('1 I,, 

and the information, we must turn to section 95-171l,>'(a) (ii). 

The property involved belongs to two different funds: 

the Nutrition Fund, Inc., and the grants from HEW. The fact that 

they were co-mingled is immaterial, for separate books were kept 

on each account and each item was specifically charged against 

the two different accounts and not charged at random. The accaunts 
affected were the private foundation and the federal government. 

Therefore, neither the same persons nor the same property are 

involved in the information which the petitioner seeks to dismiss 

as was involved in the indictment. 

Nor do we find that the same offenses were charged in 

the state's information as were charged in the federal indictment. 

In State v. McDonald, 158 Mont. 307, 310, 491 P.2d 711, 

this Court quoted Morey v. Commonwealth, 108 Mass. 433, 434, with 

approval in defining the term "same offense1': 

I! I ll * * * A single act may be an offense against 

two statutes; and if each statute requires proof 

of an additional fact which the other does not, 

an acquittal or conviction under either statute 

does not exempt the defendant from prosecution 

and punishment under the other. l1 * * * ' l1 

The question thus becomes whether an additional fact must 

be proven in the state's charge of embezzlement over and above 

the federal indictment charging the making of false statements. 

To establish the federal crime of making a false statement, there 

must only be shown that a false statement was made. In the case 

of petitioner, however, in order to establish the crime of embezzlement, there must be shown an unlawful appropriation of 

state funds for his own use. We find, therefore, that the charges 

brought in the information under section 94-1501 is a different 

offense than that offense to which petitioner pled guilty in 

federal court. 

Finally, even had this Court found that the same transaction 

was involved in the information as was involved in the federal 

indictment, it must be noted there was not the requisite concurrent 

jurisdiction between the state and the federal government in the 

offenses charged by the state as required by section 95-1711(4). 

Petitioner argues that part of the offenses took place on a federal reservation, giving the federal government concurrent jurisdiction with the state in prosecuting the offenses charged in 
the information. There is, however, no evidence presented 

to sustain that contention. 

The petition for the writ is denied and this proceeding 

is dismissed. 

/ 1 Chief Justice 

We concur: L 

Justices 
Mr. Justice Haswell and Mr. Justice Daly, dissenting. 

We dissent. In our opinion the state prosecution is 

barred by section 95-1711(4) (a), R.C.M. 1947. 

That statute provides in pertinent part: 

1 I (4) Former prosecution in another jurisdiction-- when a bar. When conduct constitutes an offense within 

the concurrent jurisdiction of this state and of the 

United States * * * a prosecution in any such other 

jurisdiction is a bar to a subsequent prosecution in 

this state under the following circumstances: 

"(a) The first prosecution resulted * 9~ * in a 

conviction * ;k * and the subsequent prosecution is 

based on an offense arising out of the same transaction. 11 

11 In section 95-1711(l) (a) (ii), the term same transaction" 

is defined as conduct consisting of 

"(ii) a series of acts * * * motivated by a 

common purpose or plan and which result in the 

repeated commission of the same offense or 

affect the same person * * *or - the property thereof." 

(Emphasis added). 

Here relator's conduct constituted an offense within the 

concurrent jurisdiction of Montana and the United States. His 

conduct consisted of obtaining research funds for his personal use 

by submitting false invoices and vouchers. This conduct constituted 

embezzlement under both state law (Section 94-1501,R.C.M. 1947) and 

federal law (18 U. S.C. 5641). Hence, concurrent jurisdiction in 

state and federal courts. The fact that federal authorities chose 

to prosecute and convict him for making a false statement to secure 

the funds (18 U.S.C. §1001) rather than for appropriating the funds 

to his own use (embezzlement) does not destroy the required concurrent 

jurisdiction. The measure of concurrent jurisdiction under section 

95-1711(4) is not the charges on which relator is ultimately prosecuted in the two jurisdictions, but whether his conduct constitutes 

an offense subject to prosecution in both. 

Likewise in our opinion, the state prosecution is based 

on offenses arising out of the same transaction as the federal conviction and therefore barred. The prior federal conviction is based 
on an offense arising out of the same tacts, conduct and transaction as the state prosecution. All 36 charges in state court are 

based on a series of acts by relator (submitting false invoices and 

vouchers) motivated by a common purpose or plan (securing research 

funds for his personal use) resulting in the repeated commission of 

the same offense (embezzlement). His conduct also affected the 

same person or entity (the University of Montana) and its property 

(the "local pool" of its funds). 

There is but one research project, one fund, a single 

purpose or plan, a series of the same acts, and the repeated comrnission of the same offense against the same institution. The initial 

source of the grants, the internal bookkeeping procedures of the 

University, and technical legal distinctions between the charges 

filed in the two courts cannot alter these basic facts. The statutory 

requirements of section 95-1711, R.C.M. 1947 are satisfied and the 

scate prosecution barred, as we see it. 

We would grant the writ and order dismissal of the 

Tnformation in the district court of Missoula County. 

/ 

:a7-z-w 

Justices.