Amy Howe Independent Contractor and Reporter

Posted Thu, November 29th, 2018 10:35 am

Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception



Next week the Supreme Court will hear oral argument in the case of an Alabama man who was convicted of both federal and state gun charges arising from the same traffic stop. He is challenging what is known as the “separate sovereigns” doctrine – the idea, based on longstanding Supreme Court rulings, that the federal government and Alabama are two different sovereigns and therefore can both prosecute him for the same conduct without running afoul of the Constitution’s ban on double jeopardy. In the 1990s, federal prosecutors relied on the doctrine to try the Los Angeles police officers accused of beating motorist Rodney King on federal civil rights charges after they were acquitted in state courts, but Terance Gamble is urging the justices to scrap the doctrine. If the Supreme Court agrees, its ruling could have a widespread impact that could extend to prosecutions by Robert Mueller, the special counsel appointed to investigate Russian efforts to influence the 2016 election.

The case now before the court began in 2015, when Gamble was pulled over by police for having a faulty headlight. The police officer smelled marijuana and searched Gamble’s car, where he found two bags of marijuana, a digital scale and a handgun. ... Alabama charged Gamble with violating state drug laws; both the state and the federal government also charged him with being a felon in possession of a firearm. A state court in Alabama sentenced Gamble to one year in prison.

Gamble urged the federal trial court to throw out the charge against him, arguing that prosecuting him in federal court after the state had charged him would violate the Constitution’s double jeopardy clause, which guarantees that no one shall “be twice put in jeopardy” “for the same offence.” The trial court rejected his claim, explaining that it had to follow the separate sovereigns doctrine unless and until the Supreme Court overruled it. The trial court sentenced Gamble to nearly four years in federal prison, followed by a year of supervised release. The U.S. Court of Appeals for the 11th Circuit upheld the district court’s ruling and Gamble’s sentence. Gamble asked the Supreme Court to weigh in; the justices considered his case at 11 consecutive conferences before agreeing to do so.
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Gamble’s case would be an interesting one in any term because of the constitutional and criminal law issues involved. But his case is drawing even more attention because it is playing out against the backdrop of Robert Mueller’s investigation into potential Russian interference in the 2016 election. There has been widespread speculation that, if associates or aides to President Donald Trump are convicted on federal criminal charges arising from the Mueller probe, the president could pardon them. Under the separate sovereigns doctrine, however, they could theoretically still be charged in state court (for example, in New York or Virginia) even after a pardon, so a ruling for Gamble might allow those defendants to get off scot-free. Other legal scholars, however, have countered that even a ruling for Gamble will likely have little effect on the Mueller probe, because both New York and Virginia “already had their own double jeopardy rules in place,” which would have required Mueller “to strategize his criminal charges and guilty pleas around those rules.” Either way, the Mueller probe will almost certainly add an interesting twist to next week’s argument.

This post was originally published at Howe on the Court.

Posted in Gamble v. U.S., Featured, Merits Cases

Recommended Citation: Amy Howe, Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception, SCOTUSblog (Nov. 29, 2018, 10:35 AM), http://www.scotusblog.com/2018/11/argument-preview-justices-to-reconsider-potentially-far-reaching-double-jeopardy-exception/