Now that Kavanaugh appears to be gliding into the Supreme Court after Republicans disingenuously but successfully reduced every serious concern about his nomination into the question of whether or not Kavanaugh may have sexually assaulted only one of his accusers, there has been a lot of attention paid to a case coming before the Supreme Court this term.
Gamble v. United States involves the question of whether a person who had been prosecuted and convicted by the State of Alabama, could then be convicted of the same offense (possession of a firearm by a convicted felon) in federal court. Gamble argued that the federal prosecution violates double jeopardy, but the 11th Circuit Court of Appeals held that Supreme Court precedent–Abbate v. United States, 359 U.S. 187, 195 (1959)–allows the prosecution because “the Double Jeopardy Clause does not prevent different sovereigns (i.e., a state government and the federal government) from punishing a defendant for the same criminal conduct.” United States v. Gamble, No. 16-16760, 2 (11th Cir. Jul. 28, 2017) citing United States v. Bidwell, 393 F.3d 1206, 1209 (11th Cir. 2004). In other words “dual sovereignty allows a state government and the federal government to prosecute an individual for the same crime, when the States rely on authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment.” Gamble at 3.
Worth Consideration
The Defendant filed a petition for a writ of certiorari to the Supreme Court, and it was granted. And there’s actually something to be said about whether dual sovereignty might need to be reconsidered because it does seem to present a challenge to the notion of fair punishment, and whether a person should be subject to identical prosecutions twice for only one act.
But, like so many other controversies occurring right now, possible nefarious implications have tainted what would otherwise be a potentially positive development in criminal justice reform.
This is due to the filing of an Amicus Curiae brief by Senator Orrin Hatch of Utah. Senator Hatch, who is a staunch supporter of President Trump, filed this brief on September 11, 2018, and the thrust of his argument is that the “rapid federalization” of traditionally state-centric criminal laws creates “the potential for the exact harms the Double Jeopardy Clause was designed to prevent — retrial after acquittal and double punishment after conviction — for countless crimes that were traditionally the states’ responsibility to define and punish.”
Why Hatch’s Brief Bothers People
The concern that Senator Hatch’s brief is causing is that he spends an awful lot of time talking about people who have been acquitted in one system only to find themselves being prosecuted in the other system. Again, this is not an ignoble consideration: surely, the Double Jeopardy Clause “protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” Ashe v. Swenson, 397 U.S. 436, 445-46 (1970). Indeed, lots of organizations, such as the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders, and the Texas Criminal Defense Lawyers Association also support reconsidering Abbate.
It is Hatch’s framing that causes concern, because Gamble is going up to the Supreme Court because the Defendant was successfully prosecuted in both systems, not acquitted in one and then successively prosecuted in another. And, indeed, the Petition for a Writ of Certiorari mentions acquittals only once or twice, and it is not a main topic of study in Petitioner’s brief. Therefore, Senator Hatch’s amicus brief’s treatment spending a little more time on acquittals than the other amici–given that he’s a Trump ally–raises eyebrows because the argument can be made that a presidential pardon could render Defendant’s convicted in federal court unprosecutable in State courts. And if that’s the case, people are worried that Trump can pardon his way out of the whole Russia mess because people like Michael Cohen and Paul Manafort–and whoever else is going to get prosecuted–don’t need to worry about convictions sticking as long as they don’t cooperate against the President and he then pardons them for their loyalty.
Valid Concerns but There Are Remedies
I think this is a valid concern, though the long-tail public policy benefits as a whole–if the Republic is going to eventually survive Trump–may actually outweigh the potential risks of Trump pardoning his way out of the Russia situation. (Of course, the argument could be made that pardoning his way out of the Russia mess might make the survival of the Republic less likely, but that’s a rabbit hole I’ll have to go down another time. Let’s just assume arguendo that he leaves when he’s supposed to.)
What is unclear to me is whether Gamble is going to address the other quasi-Double Jeopardy conflict that exists out there: and that is successive prosecutions for one bad act, but based on different crimes.
Let me see if I can explain this cleanly. In the federal system, there are two money laundering statutes, 18 U.S.C. § 1956 and 18 U.S.C. § 1957. Section 1956 is what people traditionally associate with money laundering, which is concealing the criminal nature of the funds. It’s also a really unwieldy statute. Section 1957 is a lot cleaner, and it’s basically making a financial transaction using criminally derived property worth more than $10,000.00 In other words, let’s say you’re a drug dealer (congratulations!), and you’ve done very well this week and you now have a stack of cash that’s worth more than $10,000.00. Let’s say you don’t want to just leave it in your house to have other people come in and take it, so you do what any reasonable person does, and you drive to the bank. Driving and putting that stack of cash in the bank makes you not just a drug dealer, but it also makes you a money launderer (again, congratulations!).
Where this quasi-Double Jeopardy thing comes up is that under the current framework, both the federal government and the state can prosecute you for that financial transaction. In the federal system, they’d used 18 U.S.C. § 1957, and in, say, the State of Texas, they’d use Tex. Penal Code § 34.02(a)(2).
So, let’s say you get prosecuted by the feds, and then you get convicted. Since you are good friends with the President, he pardons you (you’re a lucky guy! or gal!). Currently, the State of Texas could then prosecute you for the same thing.
However, if Gamble overturns Abbate, you would no longer be prosecuted in the State of Texas for the financial transaction. Why is that in italics? Because Texas’s money laundering statute has a lot of ways to be a money launderer. For example, you can be prosecuted for money laundering if you “transport the proceeds of criminal activity.” Tex. Penal Code § 34.02(a)(1). There is no requirement to actually do the financial transaction under the Texas statute.
The Blockburger Test
Which brings us to Blockburger v. United States, which gives us this fairly clean rule:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. … “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”
Blockburger v. United States, 284 U.S. 299, 304 (1932).
In other words, one act can lead to violations of two statutes. Thus, driving to the bank to deposit drug money can violate both 18 U.S.C. § 1957 and Tex. Penal Code § 34.02(a)(1) because the Texas statute doesn’t require the financial transaction, and the federal statute doesn’t require the transportation.
Tempering Some of Gamble’s Effects
And this is where I think the concerns about the Gamble case can be tempered somewhat, because it appears even the Petitioner in Gamble is limiting the challenge to dual sovereignty by arguing that the federal and state systems should not be allowed to prosecute a person for identical crimes. The Petitioner, however, does not appear to want to expand the scope by arguing that Blockburger should be overturned as well:
Because this Court deems two crimes to be different offenses any time “each offense contains an element not contained in the other,” Dixon, at 696 (discussing Blockburger, 284 U.S. at 304), it will still be the unusual case in which the federal and state governments may not both bring some charge based on the same criminal occurrence.
Gamble v. United States, Petitioner’s Brief at 51-52.
In other words, one should always be wary of people like Senator Hatch, and wonder what motivates them to add their voices to the discussion. And getting rid of dual sovereignty would definitely get rid of some law enforcement tools, especially in light of the pardon power and how it might be applied. That being said, there are legitimate considerations of justice and fairness involved in the Gamble case, and–through Blockburger–I think there are ways to side-step some of the concerns raised by people wondering whether the President can pardon his way out of his messes.
