A Blog About Current Issues in White Collar Defense
When a Guilty Plea is a Bad Gamble: SCOTUS Weighs in on Double Jeopardy and the Dual Sovereignty Rule
On Monday, the Supreme Court handed down Gamble v. United States, No. 17-646, an interesting decision on Double Jeopardy with practical and predictive ramifications beyond its limited facts. Terance Martez Gamble was caught possessing a loaded handgun in Mobile, Alabama, after previously having been convicted for robbery. He pleaded guilty and received one year in jail. Federal prosecutors then indicted him for felon-in-possession, based upon the same event. Gamble pleaded guilty in the District Court, but with a carve-out allowing him to appeal on the grounds that his prosecution for the “same offense” violated the Fifth Amendment’s Double Jeopardy Clause. Gamble received three years of imprisonment on his federal case.
Six Justices had little heartache in rejecting Gamble’s Double Jeopardy claim.1 The Double Jeopardy Clause prevents successive prosecutions on the same offense, a term that refers to the statutory elements of the crime established by a particular legislature. This inherently means that the same conduct can be prosecuted by different authorities because the crime is against separate “sovereigns” (i.e., state and federal governments). In modern times, this separate sovereign rule has been generally welcomed in circumstances where the public believed an injustice occurred in a local prosecution that could be remedied by an ensuing federal one. For instance, federal civil rights prosecutions against cops who won acquittals in state brutality cases (see Sgt. Stacy Koons, et al. in the Rodney King case). But the majority opinion in Gamble did not rely upon occasional popularity; it pointed out that the separate sovereign rule was supported by a chain of precedent “linking dozens of cases over 170 years”2 and that in the absence of a special justification, the principle of stare decisis (i.e., respecting precedent) was not overcome.
An Unusual Pairing
Justices Ginsburg and Gorsuch each filed dissents in this case. Both felt that tag-team prosecutions between state and federal authorities were simply unfair, and that, in essence, a state is just part of a single government, not a truly separate sovereign. Justice Ginsburg never mentions stare decisis, but in assessing prior cases on dual sovereignty she concludes the “persuasive force of those opinions is diminished by their dubious reasoning.”3 Justice Gorsuch challenges the majority’s historical analysis, with both sides digging up artifacts from colonial times, English courts in the 1600s, and a dose of Old Testament to boot. Justice Gorsuch acknowledges stare decisis before pointing out the occasional horrors associated with its adherence–such as Dred Scott’s 1857 ruling that African-Americans were not “citizens” under the Constitution. But ultimately, Justice Gorsuch’s view of the rule is aptly put in his dissent’s first sentence: “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.”4
How Gamble Affects the Legal Practice
The opinion serves as a good reminder that in representing a criminal defendant you should always look over your shoulder to see if there is a “separate sovereign” sneaking up on you. In theory, this sounds easy, but in practice usually it is not. As all three Gamble opinions acknowledge at various points, federal criminal prosecutions have steadily creeped into areas long assumed to be venued in the states. Imagine the difficulty of being Mr. Gamble’s attorney in state court and having to explain to him that the one year in prison was “not enough” for federal prosecutors, and they have now indicted him for the same event. Academic discussion of the dual sovereign rule and its history are not likely to sooth a client facing that scenario. The problem with broaching the question of “what about the feds?” is that it can actually serve to put a defendant on the map, creating the very disaster the question sought to avoid. Practitioners are left with fairly unsatisfactory solutions. One is to rely on the DOJ Petite policy, which creates a bureaucratic permission process where “doubling up” on a state case is only permitted when the state case left a “substantial federal interest…demonstrably unvindicated” and a DOJ senior official authorizes prosecution.5 The problem with this reliance is that a) the decision will more than likely be made without any input from the defense, b) the Policy still allows “about a hundred” successive prosecutions a year,6 and c) well, ask Mr. Gamble; if one year in prison for a relatively benign felon-in-possession case left a substantial federal interest demonstrably unvindicated, then how many pounds of flesh will keep the feds at bay?
In representing a federal defendant, getting an assurance that the state is not lining up with its own case is usually a little easier to accomplish. Some prosecutor offices routinely communicate with each other on certain cases, such as gun prosecutions, so that once a venue decision is made, it means the other authority is standing down. In addition, some states have their own Constitutional, statutory, or policies in play that effectively negate the dual sovereign rule, focusing on the criminal act or event rather than defining “offense” by statutory elements. But even then, creative charging decisions by an aggressive prosecutor can effectively skirt past Double Jeopardy and avoid the entire separate sovereign debate. When Paul Manafort was sentenced in U.S. District Court, he had barely left the courthouse before an in- depth press conference was held in Manhattan, announcing state charges that were expressly designed to negate any federal pardon by President Trump. Putting aside the horrific ethics of a prosecutor pitching criminal charges against anyone because of a political desire to thwart a president’s pardon authority, the charges show that even in states with expansive Double Jeopardy protection, a prosecutor can navigate to a place where he or she can take a second bite at the already-bitten apple.
Even though the Gamble opinion displayed some interesting philosophical splits within the Supreme Court, the end result seems to safeguard the dual sovereign rule for the foreseeable future. As the federalization of criminal law continues to seep wider and deeper into the criminal justice system, the occasional “doubling up” to prevent injustice is morphing into a more commonplace practice. Because Double Jeopardy’s safe harbor is deceptively hard to predict and avoidable in states with theoretically broader Double Jeopardy protections, lawyers are beginning to recognize that betting against the dual sovereign rule is a bad Gamble.
1 Justice Thomas wrote a concurring opinion emphasizing his view that precedent should be afforded almost no deference—a position that could be front and center in upcoming rulings touching on Roe v. Wade.
2 Gamble v. United States, 587 U.S. , 2019 WL 2493923, at *6 (U.S. June 17, 2019)
3 Id. at *26 (Ginsburg, J., dissenting).
4 Id. at *30 (Gorsuch, J., dissenting).
5 Dep’t of Justice, Justice Manual § 9-2.031(A) (rev. July 2009).
6 Gamble, 2019 WL 2493923 at *29 (Ginsburg, J., dissenting).