In the

Supreme Court of the United States

TERANCE MARTEZ GAMBLE,  PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

 

BRIEF FOR THE UNITED STATES

 

QUESTION PRESENTED

Whether the Court should reinterpret the Double Jeopardy Clause and overturn the long-held understanding that offenses against the laws of different sovereigns are not the “same offence.”  

 

CONSTITUTIONAL PROVISION INVOLVED

The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides that “no person shall be subject for the same offence to be twice put in jeopardy of life or limb.”  U.S. Const. Amend. V.

STATEMENT

Following a guilty plea in the United States District Court for the Southern District of Alabama, petitioner was convicted of possession of a firearm by a felon, in violation of 18 U.S.C. 922(g). The district court sentenced him to 46 months of imprisonment, to be followed by three years of supervised release.

 

The court of appeals affirmed.

1.      In November 2015, a police officer in Mobile, Alabama, found a loaded 9mm handgun, a digital scale, and two bags of marijuana in petitioner’s car following a traffic stop. Petitioner had a history of violent crimes, including incidents in which he had endangered others by firing a gun.

First, in 2008, petitioner had pleaded guilty to Alabama second-degree robbery, based on his use of force during a theft. Although he was sentenced to ten years of imprisonment, he served only nine months of that term, with the balance suspended pending completion of three years of probation.

Second, a year after completing probation, petitioner committed two domestic-violence offenses. In March 2013, petitioner fired a gun when his girlfriend attempted to leave their home with their child after an argument. And in May 2013, petitioner forced his way into his former girlfriend’s home, chased her out, and was attempting to hit her when the police arrived. Petitioner pleaded guilty to two Alabama third-degree domestic-violence offenses and received concurrent sentences of 180 days of imprisonment, with all but 42 days suspended pending completion of one year of probation.

Third, in October 2014, soon after completing his domestic-violence probation term, petitioner fired a handgun into a title-loan business while two people were inside. He was charged by the State with two counts of discharging a gun into an occupied building. Proceedings in that case were still pending when petitioner was stopped with the drugs and gun in November 2015.

2.      Petitioner’s possession of the gun with that criminal history violated both federal and state law, and he was charged with both federal and state crimes.  In April 2016, a federal grand jury in the Southern District of Alabama indicted petitioner for the federal offense of possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1). As relevant here, Section 922(g)(1) makes it “unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year”—in petitioner’s case, his second-degree robbery conviction—to possess a firearm in and affecting interstate commerce. 

Meanwhile, in late 2015, Alabama had separately charged petitioner, under its own criminal code, with a firearm offense and two state drug offenses. The relevant state-law firearm offense prohibits a “person who has been convicted  of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violent offense, anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind” from possessing a firearm.

Petitioner opted to enter a guilty plea in state court, thereby ensuring that jeopardy attached first in the state proceedings. All of the pending state charges against petitioner—the shooting charges, the drug charges, and the firearm charge— were collectively resolved with concurrent, substantially suspended, sentences.  One of the drug and one of the shooting charges were dropped, and although petitioner received concurrent ten-year terms of imprisonment on the remaining counts, all but 12 months were suspended. The suspension will become permanent following successful completion of a three-year probationary term. If he qualified, petitioner was allowed to serve his 12 months of imprisonment in a work-release program.

3.      After his state sentencing, petitioner moved to dismiss the federal indictment under the Double Jeopardy Clause. He argued that his decision to plead guilty to the state firearm offense during the pendency of the federal charge precluded any further federal proceedings for his violation of Section  In his view, the state and federal offenses are the “same offence,” U.S. Const. Amend. V, and whichever reached trial or plea first would vitiate the other and become the only permissible charge.

This Court, however, “has plainly and repeatedly stated” that two offenses “are not the ‘same offence’ within the meaning of the Double Jeopardy Clause if they are prosecuted by different sovereigns.” The district court accordingly denied the motion.  

The government sought and received a short continuance so that the U.S. Attorney’s Office could obtain direction from the Department of Justice about whether to proceed with the federal charge. Under the Department’s longstanding “Petite Policy,” the government will pursue a federal prosecution after a state disposition arising from “substantially the same act(s) or transaction(s)” only when, inter alia, the state case has “left a substantial federal interest demonstrably unvindicated.”

The federal case ultimately resolved through a plea agreement, and the government sought a sentence that it viewed as appropriate under federal law in light of petitioner’s violation of the federal felon-in-possession statute and history of violent crimes.  The district court determined that petitioner’s advisory Sentencing Guidelines range was 46 to 57 months, based on a total offense level of 21 and a criminal history category of III. The court sentenced petitioner to 46 months of imprisonment and ordered the sentence to run concurrently with petitioner’s state sentences. Petitioner’s total term of imprisonment for the full set of state and federal crimes to which he pleaded guilty—the state shooting offense, the state firearm offense, the state drug offense, and the federal firearm offense—is thus identical to what he would have received had he been prosecuted for the federal firearm offense alone.

4.      The court of appeals affirmed. The court recognized that, under this Court’s precedent, “prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns.

 

SUMMARY OF ARGUMENT

An unbroken line of this Court’s decisions, whose origin reaches back nearly two centuries, has correctly understood the violation of a state law and the violation of a federal law as distinct “offences” under the Double Jeopardy Clause.  That understanding is grounded in text and federalism; accords with the Clause’s overall application, history, and common-law origins; and allows politically accountable decision makers to pursue the distinct sovereign interests of the United States and States in appropriate cases without undue interference from one another or from foreign countries.  Petitioner offers no sound reason for suddenly reversing course.

I.       Petitioner does not dispute that the term “of-fence” refers not simply to conduct, but to the “transgression of a law.”  A transgression of two independent sovereigns’ laws, even through the same act, is thus two different “offences.”  The constitutional text expressly distinguishes “offences” based on the sovereign “against” which they are committed.  The federalist structure of the Constitution likewise dictates that offenses against the laws of the several States and the United States  are not “the same.”  And this Court’s general double jeopardy jurisprudence on the “same”-ness of “offences” presumes a single legislature and a single prosecuting authority.

For nearly 170 years, repeatedly and without exception, this Court has relied on the plain meaning of  “offence” and principles of federalism to recognize that state and federal offenses are not the “same.”  And both before and after incorporating the Double Jeopardy Clause against the States, the Court has rejected invitations—which raised arguments nearly identical to petitioner’s—to redefine the Clause.  Now, as then, such a reinterpretation would require departing from the Constitution’s text and its federalist scheme.

The Court’s sovereign-specific understanding of “offence” is analytically and historically sound.  The evidence does not support petitioner’s suggestion that the Clause implicitly incorporates an asserted common-law rule under which foreign criminal judgments can bar domestic ones.  Such a rule would allow a foreign government—whether the British at the time of the Framing or some other unfriendly nation now—to preclude U.S. prosecutions for crimes against Americans.    The history of the Founding shows that the Framers would have balked at such a remarkable surrender of sovereignty to other nations, and no well-settled common- law rule supports such an extraordinary interpretation of the Clause.  Petitioner and his amici cite no reported pre-Framing decision that actually applied the foreign preclusion bar he posits, and no treatise could or would have established any such universal rule.  The notion that such a rule was so clear as to have made its way without mention into the Double Jeopardy Clause is also belied by disagreement on the issue in early state court decisions.

II.             Even if petitioner’s arguments had some potential merit, no justification supports jettisoning the Court’s longstanding and embedded precedent.   A new approach would inject a significant anomaly into this Court’s “same offence” jurisprudence, saddle courts with the confounding task of comparing different sovereigns’ laws, and threaten the finality of convictions obtained in reliance on the long-held understanding that, in cases involving separate prosecutions by different sovereigns, it does not matter which sovereign goes first.

Any concerns of potential unfairness from particular separate prosecutions are best addressed by policymakers, not courts.  Construing the Double Jeopardy Clause to bar all separate prosecutions would produce a host of undesirable consequences.  It would, for example, inhibit enforcement of domestic-violence laws and preclude vindication of distinct state and federal interests in cases like a local breach-of-peace whose victim is a federal official.  Legislatures, including Congress, have balanced the competing concerns of successive prosecutions by enacting laws that preclude them in certain cases, and policies like the federal Petite Policy require case-specific judgments that a successive prosecution is actually warranted.  Courts, moreover, can address any perceived case-specific inequities through sentencing decisions, as the circumstances of petitioner’s own case illustrate.

 

III. Long throughout the Nation’s history, this Court has consistently recognized that state and federal crimes are not the “same offence” under the Double Jeopardy Clause and has squarely rejected arguments to the contrary.  That precedent reflects the correct understanding of the text of the Clause, flows from the federalist system established in the Constitution, and comports with the Framing-Era understanding of the double jeopardy bar.  Petitioner provides no sound reason for the Court suddenly to reverse course.  The evidence does not support either a retreat from the foundational separateness of state and federal governments or the belated discovery of a long-lost rule under which foreign nations would have the power to bar U.S. prosecutions.  Nor should the Court invite the serious practical consequences of categorically precluding politically accountable officials from ever determining that a separate prosecution is warranted—which would hamstring state, tribal, and federal law enforcement; unsettle long-final convictions; and force upon courts the vexing task of comparing different sovereigns’ laws.  This Court should instead reaffirm that the Double Jeopardy Clause continues to mean what it has always meant.   

THIS COURT HAS CORRECTLY RECOGNIZED THAT STATE AND FEDERAL CRIMES ARE NOT THE “SAME OFFENCE” UNDER THE DOUBLE JEOPARDY CLAUSE

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”  U.S. Const. Amend. V.  This Court has consistently recognized that the Clause imposes no bar when the ‘entities that seek successively to prosecute a defendant for the same course of conduct are separate sovereigns. The Clause explicitly allows multiple prosecutions for distinct “offences,” and the Court has always understood the words of the Double Jeopardy Clause to reflect the principle that a single act constitutes an ‘offence’ against each sovereign whose laws are violated by that act. That understanding finds support not only in the Clause’s language but also in the historical understanding and political realities of the States’ role in the federal system.

A. The Transgression Of One Sovereign’s Law Is Not The “Same Offence” As The Transgression Of A Different Sovereign’s Law 

The Court’s longstanding recognition that “offences” against two different sovereigns are not the same reflects the plain meaning of the term “offence.”  An “offence” under the Double Jeopardy Clause is the violation of a particular law of a particular sovereign.  A single act can therefore constitute multiple “offences” that may be separately prosecuted and punished. 

1. An “offence” is the transgression of a specific sovereign’s law

a.      This Court has repeatedly explained, and petitioner does not appear to dispute, that the term “offence” refers not to a defendant’s conduct alone, but instead to the “transgression of a law.”

b.      As Justice Scalia observed, “the language of the Clause protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions.” ‘Offence’ was commonly understood in 1791 to mean ‘transgression,’ that is, ‘the Violation or Breaking of a Law.’

c.       It is thus settled that “if the same conduct violates two (or more) laws, then each offense may be separately prosecuted.” Unless both the conduct and the laws are deemed identical, successive prosecutions do not fall within the defendant-protective purposes of the Clause.  Nor do such prosecutions inherently infringe any fundamental-fairness principle protected by the Due Process Clause.

d.      The plain meaning of “offence”—“transgression of a law”—distinguishes the violation of two independent sovereigns’ laws as different “offences” under the Double Jeopardy Clause.  Indeed, other portions of the constitutional text use the term “offence” in precisely that sovereign-specific way. 

The term “offence” appears not only in the Double Jeopardy Clause, but in two other Clauses, each of which refers to an offense as a transgression committed “against” a particular source of sovereign law.  First, the Law of Nations Clause gives Congress the power “to define and punish Offences against the Law of Nations.” Second, the Pardon Clause grants the President the power to grant reprieves and pardons “for Offences against the United States, except in Cases of Impeachment.”  U.S. Const. Art. II

The direct implication of those modifying phrases is that an “offence” exists only by reference to the sovereign lawmaking authority that defines it.  “At the founding, the law of nations was considered a distinct ‘system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world.’” And the Court has observed that the Pardon Clause “makes clear that the pardon of the President was to operate upon offenses against the United States as distinguished from offenses against the States.” The Framers’ express recognition that the underlying source of sovereign law is a key aspect of an “offence” undermines the suggestion that they would have viewed state and federal offenses as the “same.”  

2. The Constitution’s federalist structure distinguishes between federal and state “offences”.  

The Constitution’s foundational dichotomy between state and federal law makes clear that an act that is both a state crime and a federal crime “transgresses a law” of two different sovereigns—a State and the United States—and thus is two different “offences” under the Double Jeopardy Clause.  In setting forth the fundamental precepts of our dual-sovereignty federalist structure, the Framers would not have used a law- focused term like “offence” to conflate, rather than distinguish, the States and the United States. 

a. Nothing is more central to the constitutional framework than the “axiomatic” principle that “‘in America, the powers of sovereignty are divided between the government of the Union, and those of the States.  They are each sovereign, with respect to the objects committed to it.’

The several States and the United States “‘derive power from different sources,’ each from the organic law that established it.” Each “is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect.” Thus, “each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each ‘is exercising its own sovereignty, not that of the other.’

b.      In no respect can a conviction for a state offense be considered a conviction for a federal offense.  Even if the conviction was for an act that federal law also criminalizes, the independent proscription, prosecution, and punishment of that act by the State is not attributable to the United States.  

CONCLUSION

The judgment of the court of appeals should be affirmed.