Déjà Vu! I Can’t Be Charged With The Same Crime Twice, Can I? Yes… But Stay Tuned

January 11, 2019

Imagine that you are charged with a crime by the Commonwealth of Pennsylvania, you receive your punishment and the, out of the blue, you are charged with the EXACT SAME CRIME by the Federal Government. That can't happen, right? That's double jeopardy, isn't it?!? Well, a new case before the highest court in the land may be giving us an updated answer to this troubling question.

A recent case that was argued before the United States Supreme Court in early December 2018 could have several implications beyond just the facts before the Court for the doctrine of double jeopardy. The Fifth Amendment to the United States Constitution provides, among other things, that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." This in laymen's terms means that a person cannot be tried or punished twice for the same criminal offense.

In the case of Terence Gamble v. United States, Mr. Gamble is arguing that he has been subjected to double jeopardy for the same offense. Mr. Gamble was convicted of robbery in Alabama 2008, which disqualified him from possessing a firearm under state and federal law. In 2015, during a traffic stop, he was found in possession of a firearm and charged by Alabama with illegally possessing a firearm. While the state prosecution was pending, the federal government also charged Mr. Gamble for being a felon in possession of a firearm based on the same offense. Mr. Gamble claimed this was double jeopardy but he was convicted of both offenses and must spend an extra three years in jail as a result. The trial court adhered to the "separate sovereigns" exception to double jeopardy and found both convictions proper. That is to say that because the state and federal government are separate entities and an offense against the state and an offense against the federal government are not the "same offence" even though they are based on the same conduct.

The US Supreme Court granted Mr. Gambles petition for an appeal. Mr. Gamble argued that "[t]he separate-sovereigns exception is incompatible with the text, original meaning, and purpose of the Double Jeopardy Clause." Mr. Gamble argued that the concept of federalism was that the federal and state government would provide double protection and not double punishment. He argues that the separate sovereigns doctrine was a subsequent creation of case law and should be overturned.

The Government argues that the "separate sovereigns" doctrine is established case law and should be followed. The Government argued that an offense against federal law and an offense against state law have long been held to separate offenses. The Government also noted that if the doctrine is overturned, it could lead to federal and state authorities competing with one another instead of cooperating.

The Supreme Court will decide whether to uphold the separate sovereigns doctrine and the decision could have consequences far beyond whether Mr. Gamble will spend additional time in jail. The power of the President to pardon has been the subject of political debate recently and it would be increased if a pardon for federal offenses then also prohibited prosecutions by state authorities for the same conduct. In addition, this case stands as a lesson that there is sometimes utility to making an argument to challenge case law even though it is well-established. The lawyers at Conway Schadler have experience that can make the difference in these types of situations. Please contact our offices for a free consultation so we can discuss how this substantial experience can be used to your benefit.