In November 2015, Terrence Gamble was driving in Mobile, Alabama, when he was pulled over by a police officer because of a damaged headlight on his vehicle.[1] Approaching the vehicle, the officer noticed an odor of marijuana emanating from Gamble’s car, leading the officer to search the vehicle.[2] The officer’s search uncovered a loaded nine-millimeter handgun.[3] Because of Gamble’s prior conviction for second-degree robbery, he was arrested for violating Alabama’s felon-in-possession statute, which provides that no person convicted of “a crime of violence . . . shall own a firearm or have one in his or her possession.”[4] Gamble pled guilty to the offense.[5]
In most criminal cases, this is where the story ends. A sentence is imposed, a judgment is entered, and no further proceedings take place. This, however, was not the average criminal case. Following Gamble’s guilty plea to the state offense, Gamble was indicted by federal prosecutors—based on the same underlying conduct—for violating the federal felon-in-possession statute: 18 U.S.C. § 922(g)(1) (2018). Section 922(g)(1) provides that “those convicted of a crime punishable by imprisonment for a term exceeding one year” may not “ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.”[6]
Gamble moved to dismiss the federal indictment, arguing that the indictment charged “the same offense” as the Alabama charge to which Gamble had pled guilty, in violation of the double jeopardy clause of the Fifth Amendment.[7] Following the denial of Gamble’s motion by the District Court, Gamble pled guilty to the federal charge, “preserving his right to challenge the denial . . . on double jeopardy grounds.”[8] On appeal, the Eleventh Circuit affirmed.[9] Gamble’s certiorari petition was granted by the U.S. Supreme Court.[10]
At issue before the Court was whether to overturn the “dual-sovereignty doctrine.”[11] The dual-sovereignty doctrine is a Fifth Amendment rule holding that the double jeopardy clause does not prohibit successive prosecutions by separate sovereigns.[12] Under this doctrine, the same instance of criminal conduct can be prosecuted successively by a state government and the federal government, or by a foreign government and the federal government.[13]
In the end, a 7-2 majority voted to uphold the dual-sovereignty doctrine.[14] Writing for the Court, Justice Samuel Alito explained that the doctrine is not an “‘exception’ to the double jeopardy right,” but rather “follows from the text that defines that right in the first place.”[15] Distinguishing “the same offense” from “the same conduct or actions,” the Court explained that an offense is a violation of law.[16] The Court then noted that “each law is defined by a sovereign”—be it the federal government or a state government—and multiple sovereigns may have different interests to vindicate in the prosecution of identical conduct.[17] Because a state statute and a federal statute—even with identical elements—are thereby not the same “offense,” the Court reasoned that it does not violate the Fifth Amendment to successively prosecute a defendant under both statutes.[18]
In so holding, Justice Alito rejected a series of textual, historical, doctrinal, and practical arguments lodged by Gamble’s attorneys. First, Gamble argued that the text of the Fifth Amendment was not intended to permit the dual-sovereignty doctrine because “Congress, working on an earlier draft that would have banned ‘more than one trial or one punishment for the same offense,’ voted down a proposal to add ‘by any law of the United States.’”[19] This, Gamble asserted, showed that Congress did not construe the language “offense” to be inherently tied to a particular sovereign.[20] Justice Alito rejected this contention, noting that Gamble’s interpretation implied that the Founders intended to “allow[] foreign acquittals to spare domestic criminals,” despite “the Declaration of Independence denounc[ing] King George III for ‘protecting [British troops] by a mock Trial [in England], from punishment [in the colonies] for any Murders which they should commit on the Inhabitants of these States.”[21] Surely, the Court’s argument went, the Constitution did not embrace a principle the Declaration of Independence had so resoundingly rejected.[22]
Second, Gamble argued that English common law, as well as early American jurisprudence, reflected an understanding that a previous conviction or acquittal served as a bar to future prosecutions by separate sovereigns, and this understanding was incorporated into the text of the Fifth Amendment.[23] At the outset, the Court noted that “from the very down of the common law in medieval England until the adoption of the Fifth Amendment in 1791, there is not one reported decision barring a prosecution based on a prior trial under foreign law.”[24] Insofar as Gamble’s argument concerned English common law, the Court noted that Gamble produced “fragmentary and not entirely consistent evidence about a 17th-century case in which a defendant named Hutchinson, having been tried and acquitted for murder someplace in the Iberian Peninsula, is said to have been spared a second trial for this crime on some ground, perhaps out of ‘merc[y],’ not as a matter of right; . . . two cases . . . in which a party invoked a prior foreign judgment, but the court did not endorse or rest anything on the party’s reliance on that judgment; and . . . two . . . cases actually holding that foreign judgments were not (or not generally) treated as barring trial at common law.”[25] Not surprisingly, the Court found this less than persuasive, calling Gamble’s common law evidence a “flimsy foundation in case law.”[26] Gamble’s assertions about early American jurisprudence were likewise dismissed as “nothing more than a misreading of a then-recent decision of ours [in Houston v. Moore, 5 Wheat. 1 (1820)],” absent of “the quantum of support . . . that might withstand [Gamble’s] burden under stare decisis.”[27]
Finally, Gamble urged the Court to consider the impact on the dual-sovereignty doctrine of two modern developments in federal criminal law: the incorporation of the Fifth Amendment against the states and the proliferation of federal criminal law.[28] First, Gamble argued that because the double-jeopardy clause prevents the federal government from engaging in successive prosecutions, by applying the clause to the States and retaining the dual-sovereignty rule, the Court “allow[s] two coordinate Governments to accomplish together what neither could do alone.”[29] The Court rejected this argument, explaining that “the doctrine rests on the fact that only same-sovereign prosecutions are prosecutions for the ‘same offense,’ and that is just as true after incorporation as before.”[30] Second, Gamble argued that the proliferation of federal criminal law provides a compelling reason to abolish the dual-sovereignty doctrine.[31] The Court dismissed this argument as well, noting that “[e]liminating the dual-sovereignty rule would do little to trim the reach of federal criminal law and it would not even prevent many successive state and federal prosecutions for the same criminal conduct unless [the Court] also overruled the long-settled rule that an ‘offense’ for double jeopardy purposes is defined by statutory elements”—a rule Gamble had not challenged.[32]
So, what does all this mean? First, and most obviously, successive prosecutions by separate sovereigns remain constitutionally permissible.[33] For example, to the extent that Paul Manafort is challenging his prosecution by the Manhattan DA’s Office on double jeopardy grounds,[34] Gamble will prevent Manafort from invoking the Fifth Amendment to do so, and Manafort’s lawyers will have to rely exclusively on New York state law. That said, it strains credulity to think that successive prosecutions are all that common. Because the U.S. Department of Justice’s “Justice Manual” still requires federal prosecutors to demonstrate the inadequacy of a prior state prosecution and seek the approval of the relevant Assistant Attorney General before bringing such a case,[35] we are unlikely to see an influx of successive prosecutions after Gamble.
Second, with the Fifth Amendment off the table, only current statutes, new legislation, and prosecutorial discretion will serve to limit successive prosecutions. Governments seeking to limit successive prosecutions must now pass legislation specifically delineating the circumstances under which a defendant may be tried multiple times for the same underlying conduct. Outside of legislation, “progressive prosecutors” seeking to harness their extensive discretionary power can revise their offices’ internal policies to appropriately restrict successive prosecutions. Informally, coordination between federal, state, and tribal governments can serve to ensure that the interests of each are concurrently vindicated in the first prosecution, obviating the perceived—and in some cases, actual—need to bring successive cases.
Finally, the 7-2 ruling in Gamble indicates that the Court, despite the predictions of some commentators, is not prepared to overturn decades of its own precedent to provide a “Get Out of Jail Free card” for President Trump’s associates.[36]
*Kevin Coleman, J.D., expected May 2021. I would like to thank the executive board of the GW Law Criminal Law Society and the staff of the Criminal Law Brief for their dedication to this publication and their commitment to elevating critical discussions about the role of criminal law in American society.
[1] Gamble v. United States, 139 S. Ct. 1960, 1964 (2019).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 1963–64.
[12] Id.
[13] See id.
[14] Id. at 1980.
[15] Id. at 1965.
[16] Id.
[17] Id. at 1965–67.
[18] Id. at 1965–66.
[19] Id. at 1965.
[20] Id.
[21] Id. at 1965–66.
[22] See id.
[23] See id. at 1969–74.
[24] Id. at 1970.
[25] Id. at 1973–74.
[26] Id. at 1974.
[27] See id. at 1976.
[28] Id. at 1978–79.
[29] See Brief for Petitioner at 39-41, Gamble v. United States, 139 S. Ct. 1960 (2019) (No. 17-646).
[30] Gamble, 139 S. Ct. at 1979.
[31] Id. at 1979–80.
[32] Id. at 1980.
[33] Id. at 1963–64.
[34] See Christian Berthelsen, Paul Manafort Seeks Dismissal of New York State Mortgage-Fraud Case, Bloomberg (Sept. 5, 2019, 3:17 PM), https://www.bloomberg.com/
[35] See U.S. Dep’t of Justice, Justice Manual § 9-2.031 (2009), https://www.justice.gov/jm/jm-
[36] See, e.g., Michael Conway, Brett Kavanaugh’s Confirmation May Be How Every Trump Associate Permanently Avoids Prosecution, NBC News: Think (Oct. 4, 2018, 12:54 PM), https://www.nbcnews.com/think/