Supreme Court Allows State, Federal Prosecutions for Same Crime

June 18, 2019 Updated: June 18, 2019

WASHINGTON—Convicting an accused person of the same offense in state and federal courts doesn’t violate the Constitution’s double jeopardy ban, the Supreme Court ruled June 17, in a case with ramifications for those convicted in federal court in light of special counsel Robert Mueller’s now-complete Russia investigation.

Mueller’s shadow loomed large over oral arguments in the case on Dec. 6, 2018, even though he wasn’t mentioned. That’s because former associates of President Donald Trump, such as his former campaign manager, Paul Manafort, could still face state-level prosecutions in addition to the federal prosecutions launched by Mueller. Manafort is now serving federal prison time for white-collar fraud unrelated to his campaign work but unearthed as a result of Mueller’s work.

If the Supreme Court had ruled the other way and rejected the longstanding dual-sovereignty doctrine that allows a person to be tried for the same offense at both the federal and state levels, any pardon Trump may yet grant Manafort for federal offenses would have cleared Manafort and set him free.

The state of New York is currently pursuing fraud charges against Manafort.

In the case before the Supreme Court, the petitioner, Terance Martez Gamble, was convicted of felony second-degree robbery in Mobile County, Alabama, in 2008, and on two counts of domestic violence five years later. Both Alabama and federal law forbid convicted felons from possessing firearms. Gamble’s car was pulled over for a traffic violation in 2015; police found a gun in his car.

Gamble pleaded guilty to a state-level charge of being a felon in possession of a firearm and completed a one-year prison term. Based on the same search and weapon that gave rise to state charges, during the prosecution, the federal government charged him with possessing a gun while a felon. Before pursuing the indictment, the U.S. attorney obtained permission from the Department of Justice under something called the Petite Policy to bring the charge. The policy allows federal prosecutions after state convictions in certain circumstances.

Gamble argued the federal charge should be dismissed because he claimed it violated his Fifth Amendment right against being placed in legal jeopardy twice for the same crime. The trial court disagreed, as did the 11th Circuit Court of Appeals.

Gamble argued the so-called separate sovereigns exception should be overruled because the language in the Double Jeopardy Clause makes no exceptions, and is supposedly contrary to the meaning intended by the Framers of the Constitution, old English precedents, and legal writings from England and the early United States.

In the 7–2 majority opinion for Gamble v. United States, Justice Samuel Alito characterized the Supreme Court’s approach to the dual sovereignty doctrine as a defense of the power-sharing arrangement between the states and the federal government that is known as federalism.

“Although the dual-sovereignty rule is often dubbed an ‘exception’ to the double jeopardy right, it is not an exception at all,” Alito wrote. “On the contrary, it follows from the text that defines that right in the first place.”

Citing a previous ruling, Alito writes that the language of the Constitution “protects individuals from being twice put in jeopardy ‘for the same offense,’ not for the same conduct or actions.”

“Our cases reflect the same reading,” Alito wrote. “A close look at them reveals how fidelity to 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.”

Chief Justice John Roberts, and Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh joined in Alito’s opinion. Thomas filed his own concurring opinion.

Justices Ruth Bader Ginsburg and Neil Gorsuch filed their own strongly worded dissenting opinions.

In her dissent, Ginsburg referred to the dual sovereignty doctrine as “misguided.”

“The expansion of federal criminal law has exacerbated the problems created by the separate-sovereigns doctrine,” she said. “Ill effects of the doctrine might once have been tempered by the limited overlap between federal and state criminal law,” but over the past half-century “federal criminal law has been extended pervasively into areas once left to the States.”

In his dissent, Gorsuch blasted his colleagues on the court.

“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” he wrote. “Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy.”

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