‘Separate Sovereigns Doctrine’ Upheld by Supreme Court

The Supreme Court ruled this week on Gamble v. United States, first reported in FedAgent in October 2018.

Terance Gamble was a convicted felon subjected Gamble to both state and federal prohibitions against ever possessing a firearm. Nevertheless, in 2015, during a search arising from a routine traffic stop, an Alabama police officer discovered a 9mm handgun in the vehicle Gamble was driving.

Alabama prosecuted and convicted Gamble under its statute that “prohibits a convicted felon from possessing a pistol.” Gamble was convicted and sentenced to one year of incarceration, which he finished serving on May 14, 2017.

Concurrent with Alabama’s prosecution, the federal government prosecuted Gamble under the federal statute prohibiting convicted felons from “possess[ing] in or affecting commerce[] any firearm” based on “the same incident” that gave rise to his state court conviction.

Gamble moved to dismiss the federal charge in District Court, asserting that it violated his Fifth Amendment right “against being placed twice in jeopardy for the same crime.” The District Court denied Gamble’s motion on the “separate-sovereigns” exception, reasoning that prosecution by separate governments, i.e. state and federal, does not violate constitutional protection against double jeopardy. Gamble then entered a conditional guilty plea and was sentenced to 45 months’ imprisonment, from which he is set to be released on February 16, 2020.

The U.S. Court of Appeals for the Eleventh Circuit affirmed the District Court’s decision, holding that “unless and until the Supreme Court overturns” the “separate sovereigns” exception, Gamble’s “double jeopardy claim must fail.” Gamble then petitioned for certiorari, which the U.S. Supreme Court granted in October 2018.

To the Supreme Court, Gamble argued “the Double Jeopardy Clause must forbid successive prosecutions by different sovereigns because that is what founding-era common law did.”

This week, a seven-member majority of the Supreme Court ruled in Alabama’s favor against Gamble. Justice Samuel Alito wrote the majority opinion, Justice Clarence Thomas signed onto that opinion and issued his own concurrence, and Justices Ruth Bader Ginsburg and Neil Gorsuch each authored their own dissent.

Addressing Gamble’s case, Justice Alito focused on the text of the Fifth Amendment and explained that the “separate sovereigns” doctrine is not an exception to the Double Jeopardy Clause. Because the clause prohibits successive prosecutions for the same offence, rather than for the same conduct, Alito wrote the “separate sovereigns” doctrine was a part of the Double Jeopardy Clause itself.

Because “offenses” are defined by laws defined by sovereigns, “where there are two sovereigns…there are two laws” and accordingly two offenses. Therefore, prosecution for the same conduct by two separate sovereigns does not run afoul of the Double Jeopardy Clause.

Justice Alito applied his rationale to a common real-world scenario, writing if “only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court,” regardless of the dubious nature of the first sovereign’s decision.

Gamble argued that Supreme Court precedent on the “separate sovereigns” doctrine conflicts with the understanding of the Founding Fathers who ratified the double jeopardy clause. But for the Supreme Court to overturn its precedents, Justice Alito wrote, Gamble needed to offer “something more than ambiguous historical evidence.” But, the majority held, Gamble did not do so.  

Dissenting, Justice Ginsburg said the majority’s decision took away rights the founders intended to provide to the people. Justice Gorsuch similarly argued in his dissent, and he also criticized the majority for “blind obedience to stare decisis.”

The Supreme Court’s full decision in Gamble v. United States, Justice Thomas’s concurrence, and Justice Ginsburg’s and Justice Gorsuch’s dissents may be read here.


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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