The criminal prosecutions of a Mobile County man wound up before the U.S. Supreme Court last week after attorneys raised questions about whether being prosecuted in both state and federal court for the same crime violates the double jeopardy clause.
After Terance Gamble was pulled over by Mobile police officers in 2015 for a faulty headlight, a search of his vehicle turned up two baggies of marijuana, a scale and a 9mm handgun in his vehicle. As a convicted felon, the latter proved the most problematic for Gamble because he was barred from possessing a firearm following a 2008 conviction for second-degree robbery.
Gamble pleaded guilty in state court to “certain persons forbidden to possess a pistol” in 2016, but while his case was still being processed, the U.S. Attorney for the Southern District of Alabama brought a similar federal charge against Gamble stemming from the same incident.
All told, Gamble received a year in state prison and an additional three years in federal prison. He’ll be released from a Texas penitentiary in 2020. However, his case has been an example of what some say is an increasing trend of federal prosecutors piggybacking on cases brought in state court and subjecting defendants to two prosecutions for the same crime.
Appearing before the court on Dec. 6, litigator Louis Chaiten argued on Gamble’s behalf that his second prosecution in federal court, and others like it, stands at odds with the U.S. Constitution’s guarantee “No person shall … be twice put in jeopardy” for the same criminal offense.
“As a result of this double conviction and double sentencing — and contrary to the text, original meaning and purpose of the Double Jeopardy Clause — he must spend three additional years of his life behind bars,” Chaiten wrote in his brief to the court. “There’s no minimum number of constitutional violations that triggers this Court’s duty to enforce the Constitution. But I think there’s every reason to believe that the use of this inter-sovereign prosecution, particularly federal after state, for the same crime is increasing.”
Chaiten, whose offices are based in Michigan, did not immediately respond to emails inquiring as to how he became involved in Gamble’s case. However, his argument has already been rejected by the 11th Circuit Court of Appeals based on prior SCOTUS rulings.
While it has never considered the question as directly as presented in Gamble’s case, SCOTUS has long held that state and federal governments can each prosecute someone for the same conduct without running afoul of the double jeopardy clause because they are “separate sovereign” entities with their own separate interests in justice.
The Department of Justice does have what’s known as the “Petite Policy,” a nonbinding understanding that there should be no federal prosecution for conduct adjudicated in state court without a “compelling federal interest.” But the threshold for compelling federal interest is malleable, and cases like Gamble’s are not uncommon.
This particular case also garnered national attention earlier this year because many analysts believe it has the potential to impact prosecutions arising from Special Counsel Robert Mueller’s ongoing investigation into possible Russian interference in the 2016 election.
A ruling in Gamble’s favor could inadvertently expand the power behind a presidential pardon because state courts would no longer be able to prosecute individuals for an offense if they were indicted on the federal level first for the same conduct.
For instance, President Donald Trump’s former campaign manager Paul Manafort was convicted in federal court for bank and tax fraud in August. If Gamble’s case previals, Trump could pardon Manafort’s federal convictions — which he’s already expressed an interest in doing — and prosecutors in the states where the conduct took place would be unable to pursue their own prosecutions in state court.
Questions about those implications were raised during the initial confirmation hearings for newly appointed Supreme Court Justice Brett Kavanagh this fall, but during last week’s oral arguments before the full court there was no mention of presidential pardons.
Instead, through almost 80 minutes of testimony, justices seemed to be more focused on whether a ruling in Gamble’s favor would impact the ability of the Department of Justice to prosecute crimes involving American interests if the defendant had already been adjudicated overseas.
Because a good chunk of Chaiten’s argument is based on what the framers of the Constitution intended when they created the double jeopardy clause, the case requires analyzing cases and legal arguments predating the U.S. itself.
Others, including Justice Stephen Breyer, raised concern about how a ruling in Gamble’s favor might impact federal civil rights prosecutions. He noted the same separate sovereigns doctrine allowing Gamble to be prosecuted twice allowed the federal government to bring charges against accused murderers who escaped conviction in the Jim Crow South.
A ruling on the case isn’t expected for several months.
Most national observers believe the odds of a victory for Gamble are slim, but prior cases on the subject have often seen the court split by slim margins. There also seems to be some bipartisan support for examining how exceptions to the double jeopardy clause impact modern criminal prosecutions.
In a case from 2016, Justice Clarence Thomas concurred with an opinion written by Justice Ruth Bader Ginsburg suggesting a “fresh examination” of the double jeopardy issue was warranted. Nearly three years later, Gamble’s case now seems to be the vehicle to do that.
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