In the

Supreme Court of the United States

TERANCE MARTEZ GAMBLE,  PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

 

BRIEF OF PETITIONER

QUESTION PRESENTED

Whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.

RELEVANT CONSTITUTIONAL PROVISION

The Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides in relevant part:

"No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb."

STATEMENT OF THE CASE

The Fifth Amendment's Double Jeopardy Clause guarantees that "No person shall ... be twice put in jeopardy" "for the same offence." That guarantee rang hollow for Terance Martez Gamble, who, as a consequence of the Court-created separate-sovereigns exception, has been subjected to two convictions, and two sentences, for the single offense of being a felon in possession of a firearm. 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.

1. In 2008, Gamble was convicted of second­ degree robbery in Mobile County, Alabama. Because second-degree robbery is a felony offense in Alabama, both federal and state law barred him from subsequently possessing a firearm.

2. More than seven years later, on November 29, 2015, Gamble was driving in Mobile when a police officer pulled him over for a faulty headlight. The officer smelled marijuana and, upon searching Gamble's car, discovered two baggies of marijuana, a digital scale, and a 9mm handgun.

3. Alabama prosecuted Gamble for possessing marijuana and violating a state law that "prohibits a convicted felon from possessing a pistol." Gamble received a one-year sentence.

4. While the state prosecution was pending, the federal government charged Gamble for the same offense under federal law: being a felon in possession of a firearm. The federal charge was premised on "the same incident of November 29, 2015 that gave rise to his state court conviction."

Gamble raised one and only one objection to his federal prosecution: that it violated his "Fifth Amendment right against being placed twice in jeopardy for the same crime." He moved to dismiss his federal indictment on that ground.

The District Court, in a thorough opinion, denied Gamble's motion. Although the court recognized that Gamble had been subject to duplicative prosecutions, it had no choice but to adhere to this Court's separate-sovereigns exception. "Unless and until the Supreme Court overturns" that exception, the District Court concluded, "Gamble's Double Jeopardy claim must ... fail."

In light of that decision, Gamble entered a conditional guilty plea, preserving his right to appeal the District Court's denial of his double-jeopardy claim. The court sentenced him to 46 months in prison, three years of supervised release, and payment of a $100 special assessment. He is set to be released on February 16, 2020- nearly three years after he would have been released from custody based on the state sentence alone.

5. Gamble appealed the "issue preserved in writing in his Plea Agreement and preserved on the record at his Plea Hearing -namely, whether the federal prosecution violated his rights pursuant to the Double Jeopardy clause of the Fifth Amendment. The government opposed solely on the basis of the separate-sovereigns exception. And the Eleventh Circuit issued a per curiam opinion affirming the decision below. Like the District Court, the Court of Appeals was bound to follow this Court's precedent. "Unless and until the Supreme Court overturns Abbate," the court reasoned, "the double jeopardy claim must fail based on the dual sovereignty doctrine.".

6. Gamble petitioned this Court for review of the Eleventh Circuit's ruling. In opposition to certiorari, the government again relied exclusively on the separate-sovereigns exception. Accordingly, as this case comes to the Court, Mr. Gamble's continued imprisonment rests solely on the Court-created separate-sovereigns exception to the Double Jeopardy Clause.

SUMMARY OF ARGUMENT

This Court should overrule the separate­ sovereigns exception to the Double Jeopardy Clause.

I. The separate-sovereigns             exception is incompatible with the text, original meaning, and purpose of the Double Jeopardy Clause.

A. The text of the Double Jeopardy Clause contemplates no exceptions to its blanket guarantee of protection from double prosecution and punishment for the same offense. Congress could have written the Clause to exclude prior state convictions, but did not. It considered and rejected such an exclusion, instead choosing a Clause phrased in absolute terms.

 B. The separate-sovereigns exception also contravenes the original meaning of the Double Jeopardy Clause, leaving the Clause less protective of liberty today than it was in 1791.

1. The framers of the Bill of Rights understood the Double Jeopardy Clause to incorporate English common law protections against successive prosecutions, including the well-established rule barring successive prosecutions by separate sovereigns. A long line of English cases, dating to at least 1662, specifically and unequivocally rejected the notion that two sovereigns could punish a defendant for the same crime. And numerous English treatises from the Founding Era uniformly reflected this same rule.

2. Early American sources are in accord. This Court's decisions pay homage to the firmly established traditional rule that prosecution by one sovereign bars prosecution by another. Nearly every state court followed the same rule. As one court summarized in 1794 the early understanding: It is "against natural justice" for a defendant to be "cropped in one" state, "branded and whipped in another, imprisoned in a third, and hanged in a fourth; and all for one and the same offense." Early treatises on American law only reinforce this understanding.

3. In contrast to the unassailable pedigree of the traditional rule, the separate-sovereigns exception did not arise until well over half a century after the founding, and then only in dicta under ignominious circumstances. The first outright embrace of the exception occurred in a fugitive slave case, that said nothing about the early Court’s decisions, the traditional English common law rule, or why the framers would have rejected that rule sub silentio. And the separate-sovereigns exception did not achieve the status of a holding for another 70 years, when the Court decided United States v. Lanza, (1922), a Prohibition Era decision that was driven by policy considerations and entirely devoid of any inquiry into the original understanding of the Double Jeopardy Clause. The last time the Court squarely took up the question, in Bartkus v. Illinois (1959), and Abbate v. United States  (1959), the Court sharply divided, and the majority refused to consider overwhelming evidence of the Clause's original meaning.

C. The separate-sovereigns exception likewise conflicts with the purpose of the Double Jeopardy Clause and core principles of federalism.

1. "Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization," with roots in Greek and Roman law. The purpose of the Double Jeopardy Clause is to protect against this most ancient and basic of evils. Permitting consecutive prosecutions for the same offense simply because different sovereigns initiate them "hardly serves" the deeply rooted principles of finality and fairness the Clause was designed to protect. Indeed, "if double punishment is what is feared, it hurts no less for two 'Sovereigns' to inflict it than for one." Neither English common law nor the Double Jeopardy Clause at the time of its adoption would abide this unfairness, yet somehow this Court's 20th- and 21st-century jurisprudence does.

2. In the same vein, the separate-sovereigns exception turns the liberty-preserving purpose of federalism on its head. Our system of federalism was designed as a "double security ... to the rights of the people." But under the separate-sovereigns exception these two levels of government do precisely the opposite-eviscerate individual rights-by accomplishing together what neither can separately. This is an especially unwarranted result in a system where the states and federal government are not foreign nations, but "parts of ONE WHOLE."

II. Stare decisis concerns should not keep the Court from overruling the separate-sovereigns exception.

A. The separate-sovereigns exception was egregiously wrong from the start, in ways that lend it less precedential force. The separate-sovereigns exception originated in ill-considered dicta and solidified through a series of decisions that ignored prior precedents and never meaningfully engaged with the text or original meaning of the Double Jeopardy Clause. Bartkus and Abbate were decided by the narrowest of margins over spirited dissents. And the separate-sovereigns exception has long been questioned by members of this Court, lower-court jurists, and legal scholars.

B. Stare decisis loses its force when a decision's doctrinal underpinnings have been eroded. That is indisputably the case here. The separate-sovereigns exception developed on the understanding that the Double Jeopardy Clause did not apply to the states, and has not been re-visited since the Court held to the contrary. Incorporation eliminated the separate sovereigns exception's doctrinal justification. The Court has repeatedly held in nearly identical contexts that incorporation justifies overruling precedents premised on a provision's inapplicability to the states. There is the unassailable principle that following incorporation, the Court should not adhere to precedent allowing coordinate governments to accomplish together what neither could do alone. That principle applies with equal force here.

C. Foundational changes in the factual landscape can also justify departing from stare decisis. The dramatic federalization of criminal law over the past 60 years is such a foundational change. It has rendered almost laughable another pillar undergirding the separate-sovereigns exception: the assumption that state and federal jurisdiction will only rarely overlap.

D. The separate-sovereigns exception is also unworkable. Even the federal government acknowledges that some check on successive prosecutions by separate sovereigns is required to protect against unfairness. For decades, that check has been the Department of Justice's so-called Petite policy. But a prosecutor's secretive application of a discretionary policy is no substitute for judicial enforcement of a mandatory constitutional right.

E. Finally, no reliance interests justify retaining the separate-sovereigns exception. No property rights hinge on its continued existence. And vindicating the text, purpose, and original meaning of the Double Jeopardy Clause will not unduly impede law-enforcement efforts. Many states already reject the separate-sovereigns exception as a matter of state law, yet no chaos has ensued. Indeed, under this Court's demanding Blockburger test for deeming two crimes to be the "same offence" within the meaning of the Double Jeopardy Clause, it will be the unusual case in which federal and state governments may not both bring some charges. And where crimes are in fact the "same offence," federal and state prosecutors can coordinate their prosecution efforts, as they already frequently do.

ARGUMENT

I.    THE SEPARATE-SOVEREIGNS EXCEPTION CONTRAVENES THE TEXT, ORIGINAL MEANING, AND PURPOSE OF THE DOUBLE JEOPARDY CLAUSE.

A. The Text of the Double Jeopardy Clause Contains No Exception for Separate Sovereigns.

The Double Jeopardy Clause provides, in absolute terms, that no person shall be "twice put in jeopardy" "for the same offence." U.S. Constitution, Amendment V. The text admits of no exceptions: If two offences are "the same," the Clause forbids successive prosecutions.

As this Court has long held, two crimes are the "same offence" if their elements are the same. That is, whether "two distinct statutory provisions" are "two offenses or only one" depends simply on "whether each provision requires proof of a fact which the other does not." The words "same offence" cannot be understood to exclude crimes with the same elements simply because they are prosecuted by two different sovereigns.

It would have been a simple matter to write such an exception into the Double Jeopardy Clause. A few additional words would have done the trick. In fact, one member of the first Congress proposed language to do just that. The original draft of the Double Jeopardy Clause prohibited "more than one trial or one punishment for the same offence." Representative George Partridge suggested adding, after "same offence," the words ''by any law of the United States." Partridge's proposal would have permitted the federal government to prosecute a defendant after conviction for the same offense under state law or any law other than a "law of the United States." Yet Congress rejected the Partridge amendment, instead choosing a Double Jeopardy Clause phrased in absolute terms. As Congress's rejection of the Partridge amendment confirms, those absolute terms admit of no exceptions.

B.     The Separate-Sovereigns Exception Is at War with the Original Meaning of the Double Jeopardy Clause.

Not only is the separate-sovereigns exception irreconcilable with the text of the Double Jeopardy Clause, it also departs sharply from the original understanding of the Clause, rendering the Clause less protective of individual liberty than it was in 1791. The framers of the Bill of Rights well understood that the Double Jeopardy Clause reflected the English common law rule. English common law courts forbade successive prosecutions by separate sovereigns long before the American founding. And early American practice reflected the English rule, all through the years of Chief Justice John Marshall. Not until the time of Chief Justice Roger Taney did the Court ever hint that the Constitution might permit successive prosecutions by different sovereigns for the same crime. Not until 1922, moreover, did the Court hold-without any consideration of historical evidence-that the federal government could prosecute a defendant after a state had already convicted him for the same offense. In short, the separate-sovereigns exception is irreconcilable with overwhelming evidence of the Double Jeopardy Clause's original meaning.

1.        The Framers Understood the Double Jeopardy Clause to Incorporate the English Common Law Rule Prohibiting Successive Prosecutions by Separate Sovereigns.

a. The framers understood the Double Jeopardy Clause generally to embody an established principle of English common law. During debates in the first Congress, one representative voiced the uncontroversial point that the Clause is "declaratory of the law as it now stood" and consistent with "the universal practice in Great Britain, and in this country." The prohibition against double jeopardy was thus understood as "another great privilege secured by the common law" of England and incorporated into the Constitution of the United States.

This Court has since confirmed that the Double Jeopardy Clause is derived from English "common law, ... carried into the jurisprudence of this Country through the medium of Blackstone." To determine the original scope of the Double Jeopardy Clause, the Court must therefore look to the "English practice, as understood in 1791."

b. For centuries, English law followed the ancient and "universal maxim" "that no man is to be brought into jeopardy of his life, more than once, for the same offence." This principle was embodied in several pleas, two of which are relevant here: autrefois acquit (former acquittal), and autrefois convict (former conviction). In a proper case, a defendant could enter one of these pleas to bar a second prosecution in the same or different court.

At the time of the American founding, English law had specifically and squarely rejected the idea that two sovereigns could punish a defendant for the same crime. Indeed, English courts repeatedly held that prosecution in a foreign country would bar a second prosecution for the same crime in England. And English treatises universally confirmed that rule.

i. The most instructive case is King v. Roche, (1775). There, an English prosecutor sought to convict Roche for a murder committed in South Africa. Roche "pleaded Autrefois acquit," asserting that a Dutch court had previously acquitted him of the same murder. The court agreed that a prior acquittal would bar prosecution in England because "a final determination in a Court having competent jurisdiction is conclusive in all Courts of concurrent jurisdiction." For perfect clarity, the court explained that "if A., having killed a person in Spain, were there prosecuted, tried and acquitted, and afterward were indicted here, at Common Law, he might plead the acquittal in Spain in bar."

Roche relied on the oft-cited King v. Hutchinson. There, a Portuguese court acquitted Hutchinson of a murder committed in Portugal. He was later prosecuted again in England, "the King being very willing to have him tried here for the same offence." The court held that, "as he had been already acquitted of the charge by the law of Portugal, he could not be tried again for it in England." Though there is no surviving direct report of Hutchinson, at least three reported cases in addition to Roche cite that decision as settling English law on the separate-sovereigns issue.

Hutchinson itself reflects the rule of an even earlier case, King v. Thomas (1664) In Thomas, the King's Bench held that a previous acquittal in Wales would bar prosecution in England. This was because the Welsh were "to have the same immunities as English born, who on acquittal cannot be tried again."

This traditional rule-dating at least to 1662- remained the same into the 20th century.

ii. English treatises uniformly reflected the well-known Hutchinson rule. Blackstone, for example, explained that an acquittal ''before any court having competent jurisdiction" would bar a second prosecution in England. For the proposition that "any court having competent jurisdiction" included courts of a separate sovereign, Blackstone cited Beak v. Thyrwhit, which itself cited Hutchinson for the settled traditional rule. Blackstone, of course, was considered by the founders to be "the most satisfactory exposition of the common law of England."

2.  Early American Cases and Treatises Reflect the Hutchinson Rule.

The United States v. Furlong (1820)  involved an Irish defendant who had been tried in federal court for both piracy and the murder of an English victim on an English ship. The Court explained that when multiple sovereigns hold concurrent jurisdiction over an offense "the plea of autre fois acquit would be good in any civilized State, though resting on a prosecution instituted in the Courts of any other civilized State." Thus, in two clear-cut cases, the Marshall Court embraced the firmly rooted traditional rule against double prosecutions by separate sovereigns.

b.  Nearly every state court followed the traditional rule as well, both before ratification of the Fifth Amendment and in the decades afterward. In one early case, the defendant stole a horse in the Ohio Territory and took it to North Carolina, where he was prosecuted. The court barred the prosecution based on its concern about successive prosecutions in multiple jurisdictions. It is "against natural justice," the court said, for a defendant to be "cropped in one" state, ''branded and whipped in another, imprisoned in a third, and hanged in a fourth; and all for one and the same offence."

In several other state cases, the double-jeopardy issue arose in the context of the pressing issue of the day: disputes over concurrent federal and state jurisdiction. These state courts reassured defendants that concurrent jurisdiction could not possibly lead to successive state and federal prosecutions for the same offence. The problem is more "imaginary than real," said the Supreme Court of Vermont, because "a decision in one court will bar any farther prosecution for the same offence, in that or any other court."

Perhaps the best example is State v. Antonio (1816), a case decided by South Carolina's Constitutional Court (its highest court at the time for cases at law). Antonio held that the state had concurrent jurisdiction with the federal government to punish counterfeiting. Though the case produced three opinions regarding this issue, all agreed that double-jeopardy principles would bar successive prosecutions by the state and federal government. The majority: The established practice among foreign nations is "to discharge one accused of a crime, who has been tried by a court of competent jurisdiction," and if that practice "prevails among nations who are strangers to each other, could it fail to be exercised with us who are so intimately bound by political ties?" The concurrence: If federal and state courts possess concurrent criminal jurisdiction then both courts must "allow of the plea of autrefois acquit, which will be a good bar to a second prosecution, because a determination in a court having competent jurisdiction, must be final and conclusive on all courts of concurrent jurisdiction." The dissent: Prosecution by both the federal government and a state government "is not only contrary to the express letter of the constitution, but contrary to the eternal and unerring principles of justice."

Again and again for decades, state courts reassured defendants that concurrent state and federal jurisdiction would pose no double-jeopardy problem because prosecution by one sovereign would bar a second prosecution by another. A Massachusetts court stated that "the delinquent cannot be tried and punished twice for the same offence" by different sovereigns because only the first court to "exercised jurisdiction has the right to enforce it by trial and judgment." A Michigan court stated that a state "conviction would be admitted in federal courts as a bar" to a subsequent federal prosecution for the same offense. And a Missouri court simply rejected concurrent jurisdiction to punish counterfeiting, with analysis based on the premise that a defendant could "plead a state conviction in bar" to a second federal prosecution.

c. Treatises on American law uniformly reported the settled traditional rule. Some widely read treatises cited the English cases-particularly Hutchinson and Beak-and explained that an "acquittal in any court whatsoever of competent jurisdiction will be sufficient to preclude any subsequent proceedings before every other court."

"Where the jurisdiction of the United States court and of a state court is concurrent, the sentence of either court, whether of conviction or acquittal, may be pleaded in bar to a prosecution in the other."

 

CONCLUSION

For the foregoing reasons, the Court should overrule the separate-sovereigns exception and reverse the judgment below.