Ante Up: Taking A Gamble On Double Jeopardy

By Lauren Lentsch, Articles Editor

One would imagine that a judicial doctrine upheld and relied on for 170 years and approved by 30 Supreme Court justices could be considered firmly established law. However, such is not necessarily the case with the “separate sovereign” exception to the Double Jeopardy Clause. The Supreme Court is expected to soon issue their decision in the case Gamble v. United States, challenging the separate sovereign doctrine as a violation of the Fifth Amendment Double Jeopardy Clause.

The separate sovereign exception to the Double Jeopardy Clause was established from a litany of Supreme Court cases. In Abbate v. United States, the defendant was convicted in Illinois for conspiracy to damage another’s property and sentenced to three months imprisonment.[1] The defendant was subsequently charged in federal court for violation of 18 U.S.C. § 1362 (1964), conspiracy to destroy communications facilities operated or controlled by the United States.[2] In Bartkus v. Illinois, the defendant was convicted of armed robbery under Illinois law after acquittal from a federal charge under 18 U.S.C. §2113 (1964).[3] These cases, followed by a myriad of others, have upheld United States v. Lanza, which provided the following:

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.[4]

Such has been the prevailing separate sovereign doctrine, unfailingly upheld in the courts.

Gamble v. United States probes the Supreme Court on whether it should overrule the separate sovereign exception to the Double Jeopardy Clause. On November 29, 2015, Terance Martez Gamble was pulled over by police for a faulty headlight.[5] The officer smelled marijuana, and after searching the car, found marijuana, a digital scale, and a 9mm handgun.[6] Because Madison was convicted of a felony in 2008, he was in violation of the State’s felon-in-possession statute, which prohibited “a convicted felon from possessing a pistol.”[7] During the pendency of the State’s criminal proceedings, Gamble was also charged by the federal government under violation of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1).[8] Gamble’s sole objection remains that the Fifth Amendment’s Double Jeopardy Clause prohibits the federal indictment, as the charges were brought from the same offence.[9] Bound by strong precedent, the District Court and the Eleventh Circuit denied Gamble’s motion.[10]

Gamble has now appealed to the Supreme Court on the back of the June 9, 2015 Supreme Court decision in Puerto Rico v. Sanchez Valle.[11] In Puerto Rico, the Court ruled that states are separate sovereigns from the United States federal government as their power to undertake criminal prosecutions is not derived from the federal government, but instead relies upon authority preserved to them by the Tenth Amendment.[12] However, the Court held that Puerto Rico is a territory, not a state, and derives its power from the federal government.[13] As such, the claim brought by both the federal government and Puerto Rico was a violation of the Fifth Amendment Double Jeopardy Clause.[14]

Despite this most recent decision, the stark differences between United States territories and states, and the long-held precedent of the separate sovereign doctrine are undeniable. There is no doubt that Gamble faces an uphill battle. However, there is scholarly chatter that he has made strange bedfellows with, at minimum, three votes with Justice Thomas, Justice Ginsburg, and Justice Gorsuch. The questions posed at argument, along with the concurrence in Puerto Rico, lend credence to the thought that these justices believe that the principles of federalism and the original meaning of the Double Jeopardy Clause limit government intrusion into people’s lives, not increase it and that they will vote to overturn Abbate. While it will be a challenge to persuade at least two more justices, his pursuit is certainly not unreasonable. Of course, should Gamble be successful, the opinion would be historic, overturning a 170-year-old doctrine that has been approved by 30 Supreme Court Justices.

Oral arguments were heard on December 6, 2018 and the Court is set to decide the issue before this term’s end.

[1] Abbate v. United States, 359 U.S. 187, 188 (1959).

[2] Id. at 188.

[3] Bartkus v. Illinois, 359 U.S. 121 (1959).

[4] United States v. Lanza, 260 U.S. 377, 382 (1922).

[5] Petition for a Writ of Certiorari at 3, Gamble v. United States, No. 17-646 (U.S. October 24, 2017).

[6] Id.

[7] Id.; See Ala. Code §§ 13A-11-70(2), 13A-11-72(a).

[8] Petition for a Writ of Certiorari at 4, Gamble v. United States, No. 17-646 (U.S. October 24, 2017).

[9] Id.

[10] See United States v. Gamble, No. 16-00090-KD-B, 2016 U.S. Dist. LEXIS 80201 (S.D. Ala. June 20, 2016); United States v. Gamble, 694 F. App'x 750 (11th Cir. 2017).

[11] United States v. Sanchez Valle, 136 S.Ct. 1863 (2016).

[12] Id. at 1871.

[13] Id. at 1873.

[14] Id. at 1877.