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Fifth Amendment: Double Jeopardy Clause; Dual-Sovereignty Doctrine

by | Jul 3, 2019 | Business Litigation

GAMBLE v. UNITED STATES, ___ U.S. ___ No. 17-646 (2019)

I. Facts and lower court rulings

In 2008, Terance Gamble was convicted of a felony in Alabama.  Subsequently, in 2015, Gamble was stopped for a traffic violation.  The officer detected the odor of marijuana emanating from Gamble’s vehicle, and he searched and discovered a loaded 9-mm handgun.  Because Gamble had been convicted of second-degree robbery, his possession of the handgun violated an Alabama law prohibiting a person convicted of “a crime of violence” from owning or possessing a firearm. Ala. Code §13A–11–72(a) (2015).  Alabama law defines “crime of violence” to include robbery.  After Gamble pleaded guilty to this state offence, federal prosecutors indicted him for violating a federal law forbidding a person convicted of a crime punishable by imprisonment for a term exceeding one year to possess a firearm. 18 U. S. C. §922(g)(1).  The federal prosecution was based on the same facts as the Alabama prosecution: possession of the same 9-mm pistol at the same time and place.

Gamble moved to dismiss on the ground that the federal indictment was for the same offence as the one at issue in his state conviction and thus exposed him to double jeopardy.  The Supreme Court had long held that two offences are not the same offence for double jeopardy purposes if “prosecuted by different sovereigns,” which is known as the dual-sovereignty doctrine.  See, e.g., Heath v. Alabama, 474 U. S. 82, 92 (1985).  The District Court denied Gamble’s motion to dismiss, and the Court of Appeals for the 11th Circuit affirmed, citing the dual-sovereignty doctrine.

II. Supreme Court’s Decision

The Double Jeopardy Clause of the Fifth Amendment states: “. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .” (Italics supplied.)  The Supreme Court said that the dual-sovereignty doctrine follows from the text of the Double Jeopardy Clause.  The Court focused on the meaning of the word, “offence.” The language of the Clause protects individuals from being twice put in jeopardy “for the same offence,” not for the same conduct or actions.  The word “offence” means the law that the defendant is accused of violating, not the facts and circumstances of the alleged crime.  Thus, even if federal and state prosecutions are based on the same facts, the offences are not the same; they are different because one offence violates state law and the other offence violates Federal law.

The Court said that when the Double Jeopardy Clause was adopted in 1791 the term “offence” was commonly understood to mean “transgression,” that is, the violation or breaking of a law. (Gamble, Slip op., at 3).  As originally understood, an offence is defined by a law, and each law is defined by a sovereign.  Therefore, where there are two sovereigns, there are two laws, and two offences. (Gamble, Slip op., at 4).  In support of its analysis, the Court discussed cases dating back to the late 17th Century, including English cases, such as Rex v. Hutchinson, 3 Keb. 785, 84 Eng. Rep. 1011 (1677) (Gamble, Slip op., at 13).

The Court also relied on the principle of Federalism in support of the dual-sovereignty doctrine.  The Court said that “the Double Jeopardy Clause’s text does more than honor the formal difference between two distinct criminal codes.  It honors the substantive differences between the interests that two sovereigns can have in punishing the same act.” (Gamble, Slip op., at 5).  In further support, the Court discussed three antebellum cases that recognized the separate sovereign interests of the Federal Government and the States in dual prosecutions and laid the foundation for the dual-sovereignty doctrine that a crime against two sovereigns constitutes two offences.  Fox v. Ohio, 5 How. 410, 46 U.S. 410 (1847); United States v. Marigold, 9 How. 560, 50 U.S. 560 (1850); Moore v. Illinois, 14 How. 13, 55 U.S. 13 (1852).

The Court addressed the counter argument that the dual-sovereignty rule errs in treating the Federal and State Governments as two separate sovereigns because sovereignty belongs to the people; thus, sovereignty is unitary, not dual.  The Court said that argument is based on a non sequitur.  It is true that the Constitution rests on the principle that the people are sovereign, but that does not mean that the people conferred all the attributes of sovereignty on a single government. Instead, the people, by adopting the Constitution, “split the atom of sovereignty.” Alden v. Maine, 527 U. S. 706, 751 (1999).  When the original States declared their independence, they claimed the powers inherent in sovereignty.  The Constitution limited but did not abolish the sovereign powers of the States, which retain “a residuary and inviolable sovereignty.” The Federalist No. 39 (Madison).  Both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of dual sovereignty. Gregory v. Ashcroft, 501 U. S. 452, 457 (1991); Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___ (2018).

For obvious reasons, the Court paid homage to stare decisis, the doctrine that the Court should not lightly overrule precedent absent a powerful reason for doing so.  The Court said that more than ambiguous theories and creative conjectures are required to overrule a long history of Court decisions.  The Court noted that there is 170 years of precedent supporting the dual-sovereignty doctrine, and that historical precedent is consistent with constitutional text and the principles of Federalism.  The Court held that there is no compelling reason to overturn that well-established precedent.

The Court affirmed the Eleventh Circuit.  Justice Alito delivered the opinion, joined by the Chief Justice and Justices Thomas, Breyer, Sotomayor, Kagan and Kavanaugh.  Justice Thomas wrote a concurring opinion.

III. Dissenting opinions

Justices Ginsburg and Gorsuch wrote separate dissenting opinions.  Justice Ginsburg emphasized the practical and equitable features of the case.  She said that a person’s liberty should not be frittered away because of a “metaphysical subtlety” called the dual-sovereignty doctrine. (Gamble, Justice Ginsburg’s dissent, at 1).  Justice Ginsburg further explained her view by stating that “looked at from the standpoint of the individual who is being prosecuted, the liberty-denying potential of successive prosecutions, when Federal and State Governments prosecute in tandem, is the same as it is when either prosecutes twice.” (Id., at 4).

Justice Gorsuch’s dissent struck a similar theme.  He said that a “[f]ree society does not allow its government to try the same individual for the same crime until it’s happy with the result.” (Gamble, Justice Gorsuch’s dissent, at 1).  Justice Gorsuch rejected the major premise of the Court’s opinion – if there are two laws, then there are two offences.  In his view, if two laws demand proof of the same facts to secure a conviction, they constitute a single offence under the Constitution and a second trial is forbidden.  If the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offences or only one, is whether each provision requires proof of a fact which the other does not.  If two laws demand proof of the same facts to secure a conviction, they constitute a single offence under our Constitution and a second trial is forbidden. Blockburger v. United States, 284 U.S. 299, 304 (1932).  According to Justice Gorsuch, that is exactly what we have here.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].

Alisha Dwivedi, a second year law student at New England Law Boston, participated in writing this case summary.