Is re-charging Jose Ines Garcia Zarate compliant with the &quot;Petite&quot; policy?
<p>The <a href="https://www.justice.gov/usam/usam-9-2000-authority-us-attorney-criminal-division-mattersprior-approvals#9-2.031" rel="nofollow noreferrer">"Petite" policy</a> (<a href="https://en.wikipedia.org/wiki/Double_Jeopardy_Clause#%22Petite%22_policy" rel="nofollow noreferrer">Wikipedia</a>) is a set of criteria (based on policy, not the Constitution or statute) the federal Department of Justice (USDOJ) has for prosecuting when there has already been a state trial on the same issue.  The general rule is that the federal government will <em>not</em> prosecute in such a case, but there are exceptions.</p>

<p>Jose Ines Garcia Zarate was convicted by a California state court of being a felon in possession of a firearm, which carries a sentence of 16 months to 3 years. <a href="https://www.nytimes.com/2017/11/30/us/kate-steinle-murder-trial.html" rel="nofollow noreferrer">1</a></p>

<p>The USDOJ has now charged (<a href="https://www.justice.gov/usao-ndca/pr/jose-inez-garcia-zarate-face-federal-firearm-charges-northern-district-california" rel="nofollow noreferrer">announcement</a>, <a href="https://www.justice.gov/opa/press-release/file/1015981/download?utm_medium=email&amp;utm_source=govdelivery" rel="nofollow noreferrer">indictment</a>) Garcia Zarate with two crimes:</p>

<ol>
<li>Felon in Possession of Firearm and Ammunition</li>
<li>Alien in Possession of Firearm and Ammunition</li>
</ol>

<p><em>1</em> seems to be essentially the same charge, and <em>2</em> seems pretty close (there's only one criminal transaction).</p>

<p>Is this compliant with the "Petite" policy?</p>

<p>I'll put an answer, but I'm looking forward to seeing other answers and comments.</p>

<p>First, per the federal law, the minimmum sentence for possession of fire arm rises to 15 for anyone who has been convicted three or more times of a violent crime OR a drug trafficking offense.  Zarate had six drug convictions at the time of the shooting and was facing an outstanding warrent for a seventh at the time.  Since the maximum for the same conviction in California is 3 years and presumably no fine, if the judge gives Zarate the full sentence, he will serve one fifth of the  minimum time for same federal crime, thus it can be woefully adequate.  Additionally, the the maximum penalty for the Federal crime can rise to death (though probably not going to happen). The sentence can be increased further if the possession was related to another crime (i.e. Alien in possession, Assault with a Deadly Weaopon) and was discharged in the commission of a crime (i.e. the Federal Assault with a Deadly Weapon charge, source: Wikipedia entry on the incident as of 12/8/17).</p>

<p>That Federal Assault charge is also key because it is a wholly new offense, which would not qualify because it wasn't tried by the court.  In addition, in cases where a retrial of previously litigated case would not qualify for consideration IF the charge (Felon in possession) is not necessary the whole of the federal charges.  (i.e. In a federal conspiracy case, Petite does not apply on state murder charges if that murder is only part of the conspiracy).  Because the felon in possession charge would not affect the outcome of the Assault Charge it can be charged.</p>

<p>Similarly, immigration status was never discussed in the case proper.  Since his Felon possession charge is in addition to the untried crime of Alien Possession, it too can be tried.</p>

<p>The federal warrant for Zarate's arrest on the federal charges was issued on 7/14/15, 13 days after the crime occurred and was subsequently sealed pending the outcome to the above investigation.  As the policy states (section B, again), this decision must occur before Zarate is charged, so the fact that the warrant was issued so quickly meant that these questions were answered at some time during the course of those 13 days, ultimately making it the Obama Justice department that decided to prosecute Zarate on initial charges.  And while the charges were amended following the trial, the likely case is that the murder charge was changed to assault given the nature of the state courts findings related to that question making them no longer viable for prosecution (either they were reclassified as not meeting Petite or the prosecution felt that a similar outcome would happen, thus not worth the court's time.).</p>

criminal-law