Closely Watched Double-Jeopardy Challenge Stumbles at High Court

WASHINGTON (CN) – In a case said to be watched closely by convicted Trump ally Paul Manafort, the Supreme Court justices appeared unlikely Thursday to overturn precedent that allows a person to face state and federal prosecution over the same criminal conduct.

“Part of what stare decisis is, is a kind of doctrine of humility where we say we are really uncomfortable throwing over 170-year-old rules that 30 justices have approved just because we think we can kind of do it better,” Justice Elena Kagan said at oral arguments this morning.

Asking the court to do just that is Terance Gamble, who in 2008 was convicted of second-degree robbery in Alabama. He was later convicted of two domestic-violence charges as well.

In 2015, Gamble again ran into trouble with the law when a police officer smelled marijuana coming from his car after pulled him over for a missing headlight. After searching the car, the officer discovered drugs and a handgun.

The state brought charges against Gamble because his previous convictions barred him from possessing a gun. He eventually received a one-year sentence.

While the state charges were pending, however, the federal government stepped in with federal charges for being a felon in possession of a gun. Just like his state case, the federal charges were based on the traffic stop.

Gamble challenged his federal prosecution under the double-jeopardy clause of the Fifth Amendment, but the court rejected his argument and pointed what is known as the separate sovereigns exception, which allows the federal government to bring charges against someone who already faced a state prosecution for the same incident.

Gamble entered a conditional guilty plea that preserved his ability to appeal the court’s decision, but that appeal gave him no relief, as the 11th Circuit ruled multiple Supreme Court cases have upheld the separate sovereigns exception.

Gamble will now be in prison until February 2020, three years longer than if the federal government had never gotten involved in the case.

Jones Day attorney Louis Chaiten, who argued for Gamble, told the justices the double-jeopardy clause is straightforward and without any exceptions, despite what the court has said in the past. Chaiten also said the realities that first led the court to uphold the separate sovereigns exception have changed, making it appropriate for the justices to reconsider the doctrine.

In addition, Chaiten reminded the justices they have not taken a look at the separate sovereigns exception since holding the double-jeopardy clause applies to the states.

“It is important because we currently have a rule that allows the federal government to come in and decide they don’t like the way a state prosecuted someone or the result of the prosecution or the sentence they got and re-prosecute them,” Chaiten said. “It’s precisely what happened in this case. There’s every reason to believe it happens with some regularity and the court can put an end to it.”

But several justices voiced concern about what would happen if they ruled in Gamble’s favor.

Chief Justice John Roberts wondered how the court would be able to write an opinion that blocks the federal government from going after someone with a state conviction without also effectively giving foreign courts a veto over U.S. prosecutions of international criminals.

Chaiten conceded that his rule would bar U.S. courts from hearing some cases involving international crimes, but said U.S. courts could maintain their jurisdiction in cases in which a foreign country conducted a sham trial to keep one if its citizens out of U.S. clutches.

The primary concern the justices raised was that of the wisdom of overturning precedent. If the court were to reconsider this case, what is stopping it from doing the same for other longstanding precedents, asked Justice Stephen Breyer.

“Suppose you’re right, maybe Marbury v. Madison was wrong,” Breyer said, referring to the landmark Supreme Court decision. “Maybe there are mis-cites in all kinds of things. Look at the door we’re opening up.”

Assistant to the Solicitor General Eric Feigin hammered this point during his arguments, saying Gamble had not presented compelling enough reasons to abandon the separate sovereigns exception, which is built on fundamental principles of federalism.

“Your honor, I think they need to show a lot more than they’ve shown here in order to overcome this court’s consistent understanding throughout its history of what the double-jeopardy clause means,” Feigin said.

He said the new rule could spur diplomatic crises, as U.S. prosecutors would have to call into question the validity of foreign courts each time they want to bring charges against an international criminal. Abandoning the separate sovereigns exception would make it difficult to haul drug cartels and terrorists into U.S. courts, Feigin said.

Texas Solicitor General Kyle Hawkins, who argued for his state and a group of 35 others supporting the federal government, told the justices the states and federal government have different interests to protect through their prosecutorial decisions.

Most skeptical of Feigin’s arguments were Justices Neil Gorsuch and Ruth Bader Ginsburg. Gorsuch noted the number of federal crimes has greatly increased in the time since the court first recognized the separate sovereigns exception, making it more likely someone could face prosecutions from both the federal government and a state. 

“I think that’s exactly the problem that is practically more apparent today or at least of potential concern that counsel might have addressed,” Gorsuch said. “And that is with the proliferation of federal crimes, I think over 4,000 statues now and several hundred thousand regulations, the opportunity for the government to seek successive prosecution if it’s unhappy with even the most routine state prosecutions is a problem.”

For her part, Ginsburg said it is odd to imagine using federalism arguments to restrict, rather than expand, individual liberty.

“Is there another case where federalism has been invoked to strengthen the hand of government, state and/or federal, vis-a-vis an individual?” Ginsburg asked. “Federalism is usually invoked because it’s a protection of the liberty of the individual, but here the party being strengthened is not the individual, it is the state’s freedom and the federal government’s freedom to prosecute the same offense, felon in possession.”

There was no mention at the hearing of the president’s former campaign manager. Though a pardon could keep Manafort from going to prison for his conviction on violating federal fraud laws, it would take a rule change from the Supreme Court to ensure that the former lobbyist is not prosecuted in state courts on similar charges. Thursday’s oral argument seemed to foreclose that possibility.

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