Is the plot of Suits in S2E3 plausible in real life?

Question

I've been binge-watching Suits recently, and in the episode S2E3 "Unfinished Business", there's this plot twist:

Ava Hessington is arrested for conspiracy to commit murder of six anti-pipeline activists in shady African country. She pled guilty to bribing the colonel and Pornstache believes the colonel murdered the activists at Ava’s behest

Basically, after pleading guilty on bribery charges, the character opened herself up to charges of murder for hire with the bribe being the payment for said murders.

The question is: given that the same action is being used for both charges (payment), and in the first charge it was characterized as bribery, wouldn't that preclude the second charge to be brought from the get go under double jeopardy or malicious prosecution rules (the prosecutor, Cameron [played by the amazing Gary Cole], baited the guilty plea through a lenient deal on the first charge to use it against Ava in the second case, i.e.: the prosecutor already knew about the murder connections when the plea deal was reached on the first charge)?

Answer 1

From Blockburger v. United States (emphasis added)

12 Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U. S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: '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.' Compare Albrecht v. United States, 273 U. S. 1, 11, 12, 47 S. Ct. 250, 71 L. Ed. 505, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.

In this case, the bribery conviction is probably under 15 U.S. Code § 78dd–2, which makes it illegal to bribe a foreign official. The statute is clear that it only applies to briberies to induce the official to make some official act though:

(A) (i)influencing any act or decision of such foreign official in his official capacity,

(ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or

(iii) securing any improper advantage; or

(B)inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,

Murder in contravention of local law falls outside the kinds of acts this statute applies to. So, double jeopardy would not apply if a person made one bribe which was both intended to induce an official act in violation of this law, and in conspiracy for another act which violates a different US criminal law, and was convicted of the former but never tried for the latter. This would probably still be true even if one bribe was intended to induce two or more distinct acts from the foreign official, a separate charge could be brought for each act.

Answer 2

Yes

There is no requirement to bring all charges for the same act unless the charges are substantially the same type. Bribery, a financial crime, is not substantially the same type as murder, a crime against the person.

It’s possible you are thinking of res judicata which requires all civil claims between the same parties on the same event to be brought simultaneously, but it doesn’t apply to criminal proceedings.

However, the strategy is not without risk to the prosecution if the court considers it an abuse of process.

Answer 3

If the elements of Crime1 are a subset of the elements of Crime2, the Crime1 is referred to as a "lesser and included crime" of Crime2. An acquittal on Crime1 means that Double Jeopardy applies to being charged with Crime2, and a conviction on Crime2 precludes being charged with Crime1.

For instance, suppose Penal Code Section 1 says "causing an injury that results in death is felony with a sentence of 5 years" and Penal Code Section 2 says "causing an injury is a misdemeanor with a sentence of 6 months".

Then if you're charged under Section 2 and acquitted, that means that a jury found that there is insufficient evidence to proved beyond a reasonable doubt that you caused an injury. And if you didn't cause an injury, it logically follows that you didn't cause an injury that resulted in death, so you can't be charged under Section 1. Such a prosecution would be barred by Double Jeopardy, and this is a special case of collateral estoppel.

On the other hand, if you're convicted under Section 1, then you can't be charged under Section 2, because you've already been punished for your conduct. This is known as "the merger doctrine". If you're charged with both at once, and you're convicted of both, you will receive just the sentence of 5 years, not the sentence of 5 years AND 6 months.

Now, what if there's also Penal Code 3, which says "It's a felony to cause an injury by bribing someone to commit an assault"? Well, now Penal Code 2 is a lesser included offense of Penal Code 3, but neither Penal Code 1 nor Penal Code 3 is a lesser included offense of the other, so prosecution for one wouldn't necessarily bar prosecution for the other. This would depend on the jurisdiction, however. For instance, Utah Code 76-1-402 seems to bar such prosecution.

The fact that there was a plea deal complicates the issue further. A plea deal either implicitly or explicitly bars further prosecution on related charges. Any lawyer who allows their client to plead guilty to hiring a hitman, and does not ensure that the deal precludes prosecution for murder, would be incompetent to the point of malpractice.