September 10, 2018 Practice Points

SCOTUS to Decide on “Separate Sovereigns” Exemption to Double Jeopardy Clause

Practitioners with clients being prosecuted for crimes for which they have already been convicted should track Gamble v. United States.

By Sheena Foye and James R. Wyrsch

In Gamble v. United States, the U.S. Supreme Court will decide the future of the “separate sovereigns” exception under the Double Jeopardy Clause; practitioners with clients being currently prosecuted for crimes for which they have already been convicted, as a result of the separate-sovereign doctrine, should track this case and in the interim object to any additional prosecution on the basis of double jeopardy and make sure that any dual or subsequent prosecution complies with the “Petite Policy”.

On June 28, 2018, the U.S. Supreme Court granted certiorari to an Eleventh Circuit case, United States v. Gamble, 694 Fed. App’x. 750 (11th Cir. 2017), cert. granted, 138 S. Ct. 2707 (2018). The sole question that the United States will be addressing is whether the “separate sovereigns” exception under the Double Jeopardy Clause should be overruled. Gamble v. United States is very relevant in today’s practice of criminal defense, as many criminal practitioners have clients currently facing charges at the state level, which could result in a subsequent prosecution at the federal level or vice versa.

In 2008, Terrence Gamble was convicted of second-degree robbery in Mobile County, Alabama. As a result of this felony offense, Alabama state law and federal law forever barred Gamble from possessing a firearm. In 2015, Gamble was pulled over for a faulty tail light in Mobile, Alabama. During the stop, the officer smelled marijuana, and upon subsequently searching the vehicle, the officer found marijuana, a digital scale, and a 9mm handgun. Gamble was prosecuted in Alabama state court for possession of marijuana and for being a felon in possession of a firearm. He received a one-year sentence for possession-of-marijuana and felon-in-possession-of-a firearm charges. Gamble finished serving his Alabama state sentence on May 14, 2017. While the Alabama state case was ongoing, the federal government charged Gamble with being a felon in possession of a firearm. The federal charge was based on the same car stop, where the 9mm handgun was found, that was the basis for the Alabama state prosecution. Gamble filed a motion to dismiss his federal case alleging that it violated his “Fifth Amendment Right against being placed twice in jeopardy for the same crime.” The district court denied Gamble’s motion based on the well-established “separate sovereigns” exception to the Double Jeopardy Clause. Gamble then entered a conditional guilty plea and specifically preserved his right to appeal the district court’s denial of his double-jeopardy claim. Gamble was sentenced to 46 months’ imprisonment on the federal charge for felon in possession of a fire arm.

Current case law holds that prosecutions in federal and state court for the same underlying conduct does not violate the Double Jeopardy Clause because the state and federal government are “separate sovereigns.” Abbate v. United States, 359 U.S. 187, 195 (1959); United States v. Hayes, 589 F.2d 811, 817–18 (5th Cir. 1979); United States v. Bidwell, 393 F.3d 1206, 1209 (11th Cir. 2004). The “separate sovereigns” doctrine is based on the fact that prior to creating the United States as we know it, states possessed separate and independent sources of power preserved to the states via the Tenth Amendment. Recently, the U.S. Supreme Court held that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a single person for the same conduct under equivalent criminal laws. Puerto Rico v. Sanchez Valle, 136 S.Ct. 1863, 1876 (2016). The Supreme Court differentiated Puerto Rico from the states, reasoning that, state prosecutions have their most ancient roots in an “inherent sovereignty” unconnected to, and indeed predating, the U.S. Congress, whereas Puerto Rico is not a sovereign distinct from the United States because Puerto Rico derives its authority directly from the U.S. Congress. Sanchez Valle, at 1871, 1873–74.

In his petition for cert, Gamble argues that the “separate sovereigns” exception should be overruled. In part, Gamble argues that the “separate sovereigns” exception is inconsistent with the Double Jeopardy Clause’s original meaning and purpose. Additionally, prior to the Supreme Court granting cert, The Constitutional Accountability Center and Cato Institute submitted an amici curiae brief in support of Gamble agreeing with his position that the “separate sovereigns” exception is inconsistent with the Double Jeopardy Clause’s original meaning and purpose. The government contends that the Supreme Court should not overturn case precedent and that the “separate sovereigns” exception should remain intact.

As the law currently stands, practitioners need to be advising clients that they could face a subsequent prosecution under the “separate sovereigns” exception. Often clients are not aware of this exception and are shocked when a subsequent state or federal prosecution arises from the same underlying conduct. While not a guarantee that a client will not face subsequent prosecution, a criminal practitioner can always reach out to the state or federal government that has not yet initiated any prosecution to inquire as to whether they intend to file charges. Additionally, prior to a decision being issued by the U.S. Supreme Court in Gamble v. United States, practitioners need to make sure they are preserving this double-jeopardy issue on the “separate sovereigns” exception for appeal. Until then, this is a case that criminal practitioners should track as it makes its way through the Supreme Court, as the outcome could bar a current prosecution for a client that has already been prosecuted for the underlying conduct.

Moreover, the Justice Department has what is known as the “Petite Policy”. See Rinaldi v. United States, 434 U.S. 22, 27, (1977); Petite v. United States, 361 U.S. 529 (1960). Under section 9-2.031 of the U.S. Attorneys’ Manual, a dual or successive prosecution needs approval to be obtained by the appropriate assistant attorney general prior to the federal government initiating prosecution based on substantially the same acts of a prior prosecution. The manual goes on to state that

The United States will move to dismiss any prosecution governed by this policy in which prior approval was not obtained, unless the Assistant Attorney General retroactively approves it on the following grounds: first, that there unusual or overriding circumstances justifying retroactive approval, and second, that the prosecution would have been approved had approval been sought in a timely fashion.

In addition to this procedural prerequisite, there are also three substantive prerequisites that need to be adhered to when the government brings a dual or successive prosecution. First, the matter must involve a substantial federal interest. Second, the prior prosecution must have left that interest demonstrably unvindicated. Third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. If a defense practitioner is handling a case in which the federal government is initiating or thinking of initiating a subsequent or dual prosecution based on an offense to which a client has already been charged or convicted in state court, the defense attorney should approach the government with arguments that the “Petite Policy” has not or cannot be followed and seek a dismissal of the case or an agreement not to prosecute.

Sheena Foye and James R. Wyrsch are with Wyrsch Hobbs Mirakian P.C. in Kansas City, Missouri.


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