‘Gamble v. United States’ and the Dual Sovereignty Doctrine
Peter A. Crusco
With the newest Justice of the U.S. Supreme Court seated, court watchers are scrutinizing how the new mix of justices will interact and determine the array of pending cases. Cyber crime aficionados, in particular, may be watching with special interest this December’s upcoming oral argument in Gamble v. United States. Docket No. 17-646, Writ of Certiorari granted on June 28, 2018, 138 S. Ct. 2707. The main issue before the high court is whether the long-established dual sovereignty doctrine will survive, or will it be modified to meet special circumstances now existing in the digital age, as the court recently did with the third party doctrine in Carpenter v. United States, 201 L.Ed. 2d 507 (2018).
The significance of the dual sovereignty doctrine cannot be understated given the ubiquitous use of digital media as a means of communication, the expansion of federal criminal jurisdiction, state and federal telephony and conspiracy jurisdiction statutes, including new identity theft jurisdiction statutes, and the consequential opportunity of both state and federal sovereigns to obtain jurisdiction over criminal conduct as well as complex criminal enterprises that go beyond one state’s borders.
The court’s determination of the issue will impact prosecutorial decisions in the ever changing world of digital communications and, ironically, the opportunity for the court to decide the issue arises from a rather routine arrest preceded by a mundane traffic stop by a local police officer.
‘Gamble v. United States’
Petitioner Terance Gamble was indicted by a federal grand jury for possession of a firearm as a predicate felon pursuant to 18 U.S.C. §922(g)(1). Prior to his federal plea of guilty, he was convicted on May 27, 2016 in the Mobile County, Alabama Circuit Court as a prohibited person in possession of a firearm in violation of Ala. Code §13A-11-72. His arrest stemmed from a routine traffic stop by a police officer of the Mobile Police Department after the officer noticed a headlight out. The officer smelled marijuana emanating from the inside of the vehicle, ordered Gamble out of the car, conducted a search of the driver’s area of the car and found a loaded handgun, a digital scale and marijuana. Gamble moved to dismiss the indictment in the U.S. District Court for the District of Alabama, Southern Division, contending that the dual prosecution by the federal authorities and the state of Alabama subjected him to Double Jeopardy in violation of the Fifth Amendment to the U.S. Constitution. See U.S. Const. amend. V, cl. 2; United States v. Gamble, 2016 U.S. Dist. LEXIS 80201 (June 21, 2016).
U.S. District Court Judge Kristi K. DuBose determined that the Double Jeopardy Clause did not bar his prosecution by the federal government for the same conduct that he had been prosecuted by the state of Alabama applying the dual sovereignty doctrine exception to the subsequent federal prosecution. Judge DuBose concluded her order by stating that “unless and until the Supreme Court overturns Abbate, Gamble’s Double Jeopardy claim must likewise fail.” See Abbate v. United States, 359 U.S. 187, 189-96 (1959); Cf., Bartkus v. Illinois, 359 U.S. 121 (1959).
After his federal conviction by guilty plea in which he was sentenced to concurrent jail time by the federal court, Gamble appealed his conviction to the U.S. Court of Appeals for the Eleventh Circuit which affirmed his conviction. The Circuit Court reviewed the District Court’s double jeopardy determination de novo. It found that the District Court did not err in deciding that double jeopardy did not prohibit the federal government from prosecuting Gamble for the same conduct for which he had been prosecuted and sentenced for by the state of Alabama, “because based on Supreme Court precedent, dual sovereignty allows a state government and the federal government to prosecute an individual for the same crime, when the States rely on authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment.” United States v. Gamble, 694 Fed. Appx. 750, 751 (11th Cir. 2017).
Dual Sovereignty Doctrine
The dual sovereignty doctrine is an exception to the prosecutorial bar limiting the possibility of successive prosecutions enacted by the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. The Double Jeopardy Clause provides that no “person shall be subject for the same offense to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.
Nevertheless, under the dual sovereignty doctrine, the Supreme Court has repeatedly held that the federal constitution does not bar successive prosecutions for the same offense by different sovereigns. See, e.g., Abbate v. United States, supra; Cf., Bartkus v. Illinois, supra. The doctrine is based on the premise that a defendant whose conduct violates the laws of two sovereigns has committed two different offenses by the same act. Thus, under the U.S. Constitution, a defendant convicted or acquitted of an offense in a federal court, or in a court of another state, may subsequently be prosecuted for the same offense in a court of this or any other state which has jurisdiction in the matter with some exceptions. See, e.g., Heath v. Alabama, 474 U.S. 82 (1985) (successive prosecutions by two states for the same conduct is not barred by the Double Jeopardy Clause); Matter of Mason v. Rothwax, 152 A.D.2d 272 (1st Dept. 1989) (prosecution of same conduct by two different sovereigns does not offend Double Jeopardy provisions of either constitution).
The “dual sovereignty” concept provides that where that are 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.” United States v. Gamble, 2016 U.S. Dist. LEXIS 80201, *3-4, supra.
The Supreme Court has recognized a narrow exception to the dual sovereignty doctrine, known as the “Bartkus exception,” that provides “if the second prosecution, otherwise permissible under the dual sovereignty rule, is not pursued to vindicate the separate interests of the second sovereign, but is merely pursued as a sham on behalf of the sovereign first to prosecute, it may be subject to a successful double jeopardy challenge.” Bartkus v. Illinois, 359 U.S. 121 (1959). Under the Bartkus exception, a prosecution may be barred for double jeopardy where there is a substantial showing that circumstances existed in “which state and federal prosecutions were so intertwined as to undermine the assumption that two supposedly independent criminal actions were prosecuted by separate sovereigns.” Bartkus v. Illinois, supra; United States v. Wheeler, 435 U.S. 313 (1978).
Separate Sovereigns
Gamble’s petition before the U.S. Supreme Court contended, among other arguments, that the dual-sovereignty exception to the Double Jeopardy Clause undermines the protection of individual liberty that the Clause and the federalist structure were designed to provide, that the underlying idea ingrained in the Anglo-American system of jurisprudence is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty. (Pet. 9) Moreover, Gamble asserted that the “dramatic expansion of the federal criminal law” is a seismic shift that calls for reevaluation of ... the separate sovereigns exception.” (Pet. 14-17)
The Government responded, among other arguments, that the Double Jeopardy Clause does not prohibit successive prosecutions by separate sovereigns because transgressions against the laws of separate sovereigns to not constitute the same offense within the meaning of the Double Jeopardy Clause. (Rep. 4, citing United States v. Wheeler, 435 U.S. 313, 316-318 (1978).
The Government argued that this is because a state and federal government are two different sovereignties, deriving power from different sources, and reasoned that it was the “genius of the framers” that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. Each sovereign entitled to exercise its own sovereignty to determine “what shall be an offense against its peace and dignity and prosecute the offender without interference by the other.”
Moreover, the Government contended that undesirable consequences would follow if prosecution by one state could bar prosecution by the federal government. Similarly, if a federal prosecution could bar prosecution by a state, the result would be significant interference with the states’ historical police powers as “foremost among the prerogatives of sovereignty is the power to create and enforce a criminal code.” Further, if the federal government could prevent a State from vindicating its criminal laws, the Founders’ desire to guard against a “centralized government” and the attendant exercise of arbitrary power would be frustrated not safeguarded. (Rep. 10-11)
On the other hand, some states have imposed a stricter definition of double jeopardy through their own constitutional and statutory provisions which may further limit successive prosecutions by that particular state. For instance, in New York state, protection against double jeopardy is statutory as well as constitutional. N.Y. Const. Art I, §6. New York State Criminal Procedure Law (CPL) §40.20, provides, inter alia, that, “a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless: each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.” See, e.g., Matter of Polito v. Walsh, 8 N.Y.3d 683 (2007); People v. Helmsley, 170 A.D.2d 209 (1st Dept. 1991) (single criminal venture). Thus, CPL §40.20 supersedes the dual sovereignties doctrine. It extends double jeopardy protection generally to offenses arising out of a common event, and unless one of the enumerated exceptions set forth in §40.20(2) applies, a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction. See People v. Bryant, 92 N.Y.2d 216 (1998); People v Nowakowski, 132 Misc.2d 31 (Nassau Co. 1986); Cf., People v Lennon, 80 A.D.2d 672 (3d Dept. 1981) (New York prosecution for possession of stolen property was barred by earlier Massachusetts prosecution for larceny).
Conclusion
With the expansion of federal criminal law, evolving 21st century digital communications technology, and the growth of federal and state jurisdiction over criminal enterprises that span the nation, the Supreme Court’s review of Gamble gives it yet another opportunity to apply established law to evolving technology in the digital age and this time tinker with the dual sovereignties doctrine. It is extremely ironic that this opportunity given the court is in the context of an arrest arising from a 20th century-type car stop.
Peter A. Crusco is executive assistant district attorney, investigations division, Office of the Queens County District Attorney. The views expressed herein are the author’s, and do not necessarily reflect the policies or views of the office.
