Does Double Jeopardy Apply to Federal Court? Gamble v. United States, US Supreme Court, Decided June 17, 2019

Does double jeopardy apply to federal court?

Most people understand that, if you have been convicted of or acquitted of a crime, you cannot be tried for that crime again – that’s double jeopardy. It’s an important constitutional right that prevents all kinds of prosecutorial abuse.

But what if you are convicted or acquitted of a crime in a state court and the federal government decides to prosecute you again? For the exact same crime? Can they do that?

Or what if you are acquitted in federal court, a state court prosecutor decides they don’t like the outcome, and they charge you with the exact same crime in the state court? You went through Hell fighting a federal case, you paid tens of thousands of dollars in legal fees, you spent time in federal detention, and a jury set you free.

Can they just put you back in jail and make you go through it all a second time? Does the government get a mulligan any time they don’t like the outcome?

In Gamble v. U.S., the United States Supreme Court reaffirmed the “dual sovereignty” exception to Double Jeopardy, finding that the federal government can charge you with the exact same crime for which a state court jury has already acquitted you (or convicted you).

You can be punished twice for the same conduct. You can be re-prosecuted for a crime that a jury has said you are not guilty of beyond any reasonable doubt, if the new charges are in the court of a different sovereign.

Does Double Jeopardy Apply to Federal Court?

The Double Jeopardy Clause, found in the Fifth Amendment to the US Constitution, says that no person may be “twice put in jeopardy” “for the same offence.” It means that, once you have been acquitted or convicted of a crime, you cannot be tried a second time for the same crime.

Or can you?

Double jeopardy applies in both federal court and state court – in state court, the Fifth Amendment to the US Constitution applies as well as the relevant state’s constitutional bar to double jeopardy.

If you were charged in state court with a crime and a jury acquits you, the prosecutor cannot charge you with the same crime again – they don’t get a mulligan. The same is true in federal court. If you are tried and convicted of a crime in federal court, the federal prosecutor cannot bring new charges for the same crime in an attempt to get a harsher sentence.

But what if you are acquitted in South Carolina state court and the feds want to charge you again with the same offense? Of if you are acquitted in the federal court but then the state of South Carolina wants to take a shot at you?

What is the Dual-Sovereignty Rule?

Does double jeopardy apply to federal court?

It does, if the crimes charged are both in the federal court. If you were convicted or acquitted in the state court or the courts of any other “sovereign” (a foreign country, for example), double jeopardy does not apply to the federal court.

According to the US Supreme Court in Gamble, double jeopardy protects you from being placed “twice put in jeopardy” “for the same offence.” “Offence” does not mean conduct or actions:

[T]he language of the Clause . . . protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions…”

An “offence” is defined by a law. A law is defined by a sovereign (state, federal, or foreign government). If there are two sovereigns, there are necessarily two laws, therefore there are two offences. If there are two offences, you can be prosecuted twice:

…an “offence” is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two “offences.” See Grady, 495 U. S., at 529 (Scalia, J., dissenting) (“If the same conduct violates two (or more) laws, then each of-fense may be separately prosecuted”); Moore v. Illinois, 14 How. 13, 17 (1852) (“The constitutional provision is not,that no person shall be subject, for the same act, to be twice put in jeopardy of life or limb; but for the same offence, the same violation of law, no person’s life or limbshall be twice put in jeopardy” (emphasis added)).

Why Do We Need a Dual-Sovereignty Rule?

The majority gives an example for why the dual-sovereignty rule is necessary:

If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court. Imagine, for example, that a U. S. national has been murdered in another country. That country could rightfully seek to punish the killer for committing an act of violence within its territory. The foreign country’s interest lies in protecting the peace in that territory rather than protecting the American specifically. But the United States looks at the same conduct and sees an act of violence against one of its nationals, a person under the particular protection of its laws. The murder of a U. S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger. That is why the killing of an American abroad is a federal offense that can be prosecuted in our courts, see 18 U. S. C. §2332(a)(1), and why customary international law allows this exercise of jurisdiction.

That seems like sound reasoning if we are talking about a foreign country. Does it make sense when we are talking about states v. the US federal government, though?

Why the Dual-Sovereignty Rule Doesn’t Make Sense

The dual-sovereignty rule makes sense when we are talking about foreign governments, but the same arguments do not ring true when we are talking about US states that are contained within the United States, governing the same people and the same territories.

As Justice Ginsberg says in her dissent:

This case, however, does not call for an inquiry into whether and when an 18th-century English court would have credited a foreign court’s judgment in a criminal case. Gamble was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other. English court decisions regarding the respect due to a foreign nation’s judgment are therefore inapposite.

Why Does the Government Want to Prosecute People Twice for the Same Crime?

Yes, I get it. An “offence” is defined by a “law” which is defined by a “sovereign” and therefore it’s not “the same crime.”

Except, it is “the same crime,” isn’t it? If Bob sells cocaine to Mary, a state court jury acquits him, and then the feds indict him for selling cocaine to Mary, that is the same crime regardless of the US Supreme Court’s fancy law talk, right?

The government wants to be able to prosecute people twice for the same crime. Sometimes, prosecutors believe they are smarter than the ordinary people who sit on a jury, and they are not just going to give up on getting a conviction because of some small detail like a state court acquittal, are they?

Other times, federal prosecutors may think that a state prosecutor was too lenient in charging or a state court judge was too lenient in sentencing, therefore, they must step in and ensure the defendant gets his just deserts…

Justice Gorsuch recognizes the government’s motivation for dual prosecutions in his dissent:

A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime. So if all the might of one “sovereign” cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other.

The Bill of Rights, including the Double Jeopardy Clause, is designed to protect us from the government. Unfortunately, the government (the US Supreme Court) gets to interpret when the Double Jeopardy Clause applies…

Are There Exceptions to the Dual-Sovereignty Rule?

There are some exceptions to the dual-sovereignty rule. Although they cannot tell the federal courts what to do, some states do not allow successive prosecutions for the same crime once a person has been charged in the federal court.

South Carolina, for example, prohibits prosecutions for drug offenses in SC state court once a person has been convicted or acquitted for the same conduct in federal court. SC Code Section 44-53-410 says:

SECTION 44-53-410. Prosecution in another jurisdiction shall be bar to prosecution.

If a violation of this article is a violation of a Federal law or the law of another state, the conviction or acquittal under Federal law or the law of another state for the same act is a bar to prosecution in this State.

This does not prevent federal authorities from arresting, charging, and prosecuting a SC resident a second time for conduct that he or she was convicted or acquitted of in a SC state court, though…

Federal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.