Double Jeopardy By “Separate Sovereigns” Before Supreme Court

Whether state and federal prosecution for the same criminal act violates the Fifth Amendment’s prohibition against double jeopardy, a matter that Justice Ginsburg and Justice Thomas have previously called for “fresh examination,” is set to be decided by the U.S. Supreme Court this term.

In 2008, Alabama convicted Terance Gamble of second-degree robbery, a felony offense that 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 Gable 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 criminally charged 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 charge in federal 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.”

In his petition for certiorari, Gamble argued multiple reasons for why the Supreme Court should overturn its own precedent.

Gamble first argued the text of the Fifth Amendment does not allow for the court-created separate-sovereigns exception. He argues the Clause, “No person shall…be subject for the same offence to be twice put in jeopardy of life or limb,” unambiguously protects each “person” from duplicative prosecutions, regardless of their source. Further, Gamble argued, the Double Jeopardy Clause arose from English common-law, under which an acquittal or conviction by a separate sovereign was a bar to prosecution for the same offense in England.

Because the Supreme Court created separate-sovereigns exception originated in a 1847 decision, based on precedent that held the Bill of Rights (including the Double Jeopardy Clause) did not apply to the states, Gamble argued the Fourteenth Amendment “eroded” the exception’s “doctrinal underpinnings.” The Fourteenth Amendment applied of the Bill of Rights to the states in 1868, and the Supreme Court acknowledged the Double Jeopardy Clause applied to the states in 1969. Therefore, in the same way federal prosecutors are prohibited from using evidence unlawfully obtained by state prosecutors, Gamble argued the Supreme Court should hold that he could not be prosecuted by the federal government on the same matter for which he was convicted by a state.  

The Supreme Court granted Gamble’s petition for certiorari and ordered the parties to brief the matter, to be scheduled for argument this term. FEDAgent will post an update on Gamble v. United States when the Supreme Court decides the case.

The parties’ briefs to the Supreme Court in Gamble v. United States may be read as they are posted 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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