News You Can Use: SCOTUS considers eliminating the “separate sovereigns” double jeopardy exception

This week, the Supreme Court hears argument in Gamble v. United States, a case asking whether the Court should overrule the “separate sovereigns” exception to the double jeopardy clause. Gamble has significant practical implications, but also raises interesting issues of constitutional interpretation, historical practice, and adherence to precedent.

Following a 2015 traffic stop in which police found a gun, the state of Alabama prosecuted Mr. Gamble for being a felon in possession of a firearm. He pleaded guilty and was sentenced to a year in prison. But the federal government then pursued its own case against him for the same crime (being a felon in possession of a firearm), and based on the same conduct (possessing the firearm found during the traffic stop).

While the Fifth Amendment’s Double Jeopardy Clause prohibits any person from being tried twice for the same offense, the Supreme Court has long recognized an exception to that principle. Prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are considered separate sovereigns. See Abbate v. United States, 359 U.S. 187, 195 (1959).

This “separate sovereigns” exception (also called the “dual sovereignty” exception) would seem to countenance both prosecutions of Mr. Gamble. That’s what the Southern District of Alabama and the Eleventh Circuit both held below. As the circuit court put it, “unless and until the Supreme Court overturns Abbate, [this type of] double jeopardy claim must fail based on the dual sovereignty doctrine.” 694 F. App’x at 750-51.

But Mr. Gamble had an opening to argue for that very overruling. Two terms ago, in Puerto Rico v Sanchez Valle, the Supreme Court held that Puerto Rico was not a separate sovereign from the United States because it derived its authority from Congress. So, Puerto Rico and the United States could not both prosecute a person for the same conduct under equivalent criminal laws.

Notable here, however, was Justice Ginsburg’s concurrence, joined by Justice Thomas, in which she wrote to “flag a larger question that bears fresh examination in an appropriate case”—that is, whether the Court’s separate sovereigns doctrine served the Double Jeopardy Clause’s goal “to shield individuals from the harassment of multiple prosecutions for the same misconduct.” 136 S. Ct. 1877. The concurrence suggested it did not, and that the issue warranted the Court’s attention. 

The Court decided Sanchez-Valle on June 9, 2016.  About a week later, Mr. Gamble moved to dismiss the indictment, the motion predicated on Justice Ginsburg’s concurrence and call to revisit the separate sovereigns doctrine. Two years later, the Supreme Court granted granted certiorari.

SCOTUSblog has an excellent argument preview here: http://www.scotusblog.com/2018/11/argument-preview-justices-to-reconsider-potentially-far-reaching-double-jeopardy-exception/

For a fascinating historical perspective on the question, check out the amicus brief filed by law professors contending that dual sovereignty is a historical accident, and not part of the constitutional design.

 

Takeaways:

  • Be on the lookout for any dual-sovereignty issues in current cases, and preserve that challenge by filing a motion to dismiss the indictment.
  • Remember to pay attention to concurrences and dissents (including dissents from the denial of certiorari). Gamble finds its roots in Justice Ginsburg’s Sanchez-Valle concurrence. Shortly after that concurrence, Mr. Gamble moved to preserve the issue, and two years later the Court granted certiorari on the question.
  • Stare decisis is not always decisive. Even long-standing legal doctrines may be reconsidered, and Mr. Gamble argued persuasively in his petition for certiorari that both the doctrinal and factual premises supporting the separate sovereigns exception have eroded significantly since its adoption. (See Petition at 7-17.)

 

 

News You Can Use: SCOTUS grants cert in Haymond — why that might matter to your clients facing revocation of supervised release in the Tenth Circuit

The Supreme Court has granted certiorari in United States v. Haymond, in which the Tenth Circuit struck down as unconstitutional 18 U.S.C. § 3583(k)’s provision requiring a mandatory minimum of five years of imprisonment following revocation of supervised release based on certain sex crimes.

Generally, a defendant faces a supervised release term of no more than 5 years, and upon revocation for a violation, a term of imprisonment of no more than 5 years. That’s where the underlying offense of conviction is a class A felony. The potential penalties are progressively less severe for less serious offenses.

However, 18 U.S.C. § 3583(k) carves out a special, and especially extreme, exception for certain sex offenses and revocations based on the commission of new sex offenses—a supervised release term of 5 years to life, and upon revocation, a term of imprisonment of 5 years to life. So, what is usually the ceiling (a 5-year max for class A felonies) becomes the floor (a mandatory minimum of 5 years for certain sex offenses).

In Haymond, the Tenth Circuit held that the mandatory minimum of five years of imprisonment is unconstitutional because it changes the mandatory sentencing range based on a court’s finding by a preponderance of the evidence, instead of a jury’s finding beyond a reasonable doubt.

In so holding, the Court primarily relied on a trio of Supreme Court cases: (1) Apprendi, which held that any fact that increases the stat max must be submitted to a jury and proven beyond a reasonable doubt; (2) Alleyne, which applied Apprendi to mandatory minimums; and (3) Booker, which extended the substance of these 6th Amendment principals to the sentencing context.

The government petitioned for certiorari, and the Supreme Court granted it, even though the Tenth Circuit is the only court to have even considered the issue (so, no circuit split; the government’s pitch was error correction on a “significant and recurring question of federal law”), and § 3583(k) does not appear to be a frequently invoked statute. That might not bode well for Haymond’s survival.

Takeaway: If you have a client facing revocation based on § 3583(k), or want to make an argument based on an extension of Haymond, move quickly. Do not let the government stay the proceedings pending resolution of Haymond in the Supreme Court. See Yong v. I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (“[O]nce a federal circuit court issues a decision, the district courts within that circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before applying the circuit court’s decision as binding authority . . . .”).