The Impact of the Separate Sovereigns Doctrine on Current Events

Most people have heard of someone “pleading the 5th” in  connection with a criminal investigation. The 5th Amendment to the United States Constitution also contains the Double Jeopardy Clause. In 1896, the United States Supreme Court interpreted the Double Jeopardy Clause of the United States Constitution, concluding in the case of Ball v. United States that the Double Jeopardy Clause prohibits someone for being prosecuted twice for the same alleged criminal activity.

While the prohibition against double jeopardy seems clear and well established, a lesser known constitutional principle, the Separate Sovereigns Doctrine, muddies the waters. Under the Separate Sovereigns Doctrine, the prohibition against double jeopardy does not apply when an individual is prosecuted by separate sovereigns. In other words, the same alleged criminal activity can be prosecuted by both a state court and a federal court. In support of the Separate Sovereigns Doctrine, the Supreme Court reasoned, in United States v. Lanza, that an offense that violates state and federal law is an offense against the dignity of both the state and federal government and, therefore, may be punished by each. Distinguishing the Double Jeopardy Doctrine, the Court ruled that two prosecutions by the same government entity for the same alleged criminal activity are prohibited but prosecutions by separate government entities are not.

Long criticized as a doctrine that is both unfair and lacking in support in the text of the Constitution, the Separate Sovereigns Doctrine has come under fire recently in the case of Gamble v. United States. The Gamble case has made headlines recently because of the implications it may have for individuals connected with the Trump campaign that have recently been convicted by the federal government pursuant to plea agreements reached with federal prosecutors. To date, none of these individuals have been charged by any state governments. Under the Separate Sovereigns Doctrine as applied in the Gamble case, state prosecutors would be permitted to charge these individuals with state crimes, and would not be bound by any deals cut with federal prosecutors.

The facts involved in the Gamble case are relatively straightforward. On November 29, 2015, a police officer stopped a vehicle driven by Terance Gamble for a defective headlight. Because the officer smelled marijuana on Gamble, he decided to search the vehicle. During the search the officer found a pistol. Because Gamble was a felon, he was charged in Alabama state court with being a felon in possession of a firearm. While that case was pending, the federal government also charged Gamble with possession of a firearm 18 U.S.C. § 922(g)(1), which likewise prohibits anyone with a felony conviction from possessing a firearm.

Gamble ultimately pled guilty to the state charge and was sentenced to one year in prison. He then moved to dismiss the federal charges, citing the Double Jeopardy Clause. Citing to Abbate v. United States, the Southern District of Alabama rejected Gamble’s motion. The court reasoned that the Separate Sovereigns Doctrine permitted both prosecutions since Gamble’s actions violated both state and federal laws and both governments are permitted to separately enforce their own laws. Gamble appealed the District Court’s decision to the Eleventh Circuit Court of Appeals. The Eleventh Circuit agreed with the District Court and denied Gamble’s appeal.

Gamble has appealed the Eleventh Circuit's decision to the United States Supreme Court.  The case was argued to the Supreme Court on December 6, 2018. The Supreme Court is expected to issue a decision in 2019.

This article is authored through the collaborative efforts of Eric R. Pangburn and other legal professionals at West & Dunn, a law firm dedicated to providing quality legal services and business counseling to individuals and businesses, with a particular focus on assisting veterans of the United States Military.