Puerto Rico’s Prosecutorial Autonomy in Flux

(CN) - Puerto Rico's autonomy hangs in the balance after a Supreme Court hearing Wednesday on whether double jeopardy blocks it from prosecuting a man who pleaded guilty to U.S. gun-trafficking charges.

The underlying case involves an indictment Puerto Rico filed in 2008, charging Luis Sanchez Valle with the sale of firearms and ammunition and the carrying of firearms.

While that prosecution was pending, the United States indicted Valle for the illegal sale of firearms and ammunition.

After Valle pleaded guilty to the U.S. charges and received a five-month prison sentence, the trial court in Puerto Rico then agreed to dismiss the initial charges.

The ruling hinged on a finding that the double-jeopardy clause prevents a person who has been tried, acquitted or convicted under U.S. law from being prosecuted for the same offense under Puerto Rico law.

In affirming last year, the divided Puerto Rico Supreme Court said Puerto Rico and the U.S. government are not "dual sovereigns."

Puerto Rico challenged that finding in petitioning the U.S. Supreme Court for certiorari, noting that Congress enacted a law in 1950 that gave Puerto Ricans the ability to "organize a government pursuant to a constitution of their own adoption."

Puerto Ricans approved the commonwealth's constitution in a 1952 referendum.

Absent from a hearing in Washington on Wednesday were the lofty statements about sovereignty Puerto Rico had included in its petition for certiorari last year, which described the matter as "the most important case on the constitutional relationship between Puerto Rico and the United States since the establishment of the commonwealth in 1952."

Arguing for commonwealth's government, Kirkland & Ellis attorney Christopher Landau said the people of Puerto Rico are the source of the power of its criminal laws, following an invitation by Congress to self-govern.

Double jeopardy is thus not implicated when Puerto Rico wishes to try a citizen for the same offense they have faced in federal court, the attorney said.

"Offenses created by two different entities are not the same offense if they flow from different sources of court," Landau told the court, according to a transcript.

Justice Elena Kagan fired back at Landau's assertion that Puerto Rico began self-governing with Congress' permission.

"Even in saying that, Mr. Landau, you're putting Congress in the driver's seat here: It was done at the invitation of Congress," Kagan said. "Congress approved it. Presumably Congress can unapprove it if Congress ever wished to."

In addition to Valle's case, the court is also looking at that of his co-defendant, Jaime Gomez Vazquez.

On behalf of those men, Adam Unikowsky of Chicago-based Jenner & Block said Congress did not create a sovereign state in delegating power to Puerto Rico.

"There is a difference, a meaningful constitutional difference between the delegation of power and the conferral of sovereignty," Unikowsky argued. "The former occurred in Puerto Rico, as it has occurred in other territories. The latter can only apply to states within our union."

Relaying the position of the U.S. solicitor general, attorney Nicole Saharsky said Congress can rescind its delegation of authority to Puerto Rico.

Citing prior briefs stating the office's opposing position on the matter of double jeopardy, Justice Ruth Bader Ginsburg asked the assistant to the solicitor general when the United States changed its mind on the issue.

"We have revisited this issue, given substantial attention to it, both within the Department of Justice and within many agencies of the federal government, and our position as set out in our brief is that it is not a separate sovereign," Saharsky said.

Landau evoked the weighty tone of Puerto Rico's petition for certiorari on rebuttal, chastising Unikowsky and the U.S. government's position.

"It is shocking that the respondents and the United States government in this case are using the territorial clause as a restriction on power, a limitation on power of government," Landau told the court.

The attorney ended with a plea for the court not to "take the Constitution of Puerto Rico away from the people of Puerto Rico."

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