Philadelphia Criminal Defense Blog
United States v. Gamble: US Supreme Court Declines To Provide State/Federal Double Jeopardy Protections
Philadelphia Criminal Defense Lawyer Zak Goldstein
The United States Supreme Court has decided the case of Gamble v. United States. This decision upholds the concept of dual sovereignty which, for purposes of criminal law, allows both the federal government and a state government to prosecute a defendant for the exact same crime. It therefore remains the law that a criminal defendant cannot claim the protections of double jeopardy if he or she was already prosecuted at the state level if the federal government is unhappy with the result and decides to file charges.
Gamble v. United States
In November 2015, a police officer in Mobile, Alabama pulled the defendant over for a damaged headlight. When the officer approached the defendant, he smelled marijuana. The officer searched Gamble’s car, and he found a loaded 9mm handgun. The defendant had previously been convicted of second-degree robbery, and thus he was prohibited from possessing a firearm. At his trial, the defendant pleaded guilty to a charge of violating Alabama’s felon-in-possession-of-a-firearm statute.
After his plea, federal prosecutors then indicted him for the same instance of possession under federal law. The defendant then filed a motion to dismiss, arguing that the federal indictment was for the same offense as the one at issue in his state conviction and violated his double jeopardy rights as provided by the Fifth Amendment to the United States Constitution. The Federal District Court denied his motion, invoking the dual-sovereignty doctrine. The defendant then pleaded guilty to the federal offense, but appealed on double jeopardy grounds. The Eleventh Circuit Court of Appeals affirmed the decision. The defendant then filed a writ of certiorari to the United States Supreme Court, and the justices agreed to hear the case.
What is Double Jeopardy?
The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from repeated criminal prosecutions for the same criminal episode. The basic premise behind the Double Jeopardy Clause is that the government only gets one opportunity to convict a defendant, as such if the defendant is acquitted of a crime then the government cannot continue putting him on trial until they secure a conviction. A conviction also triggers Double Jeopardy protection which is what the defendant in Gamble argued before the United States Supreme Court.
What is The Dual-Sovereignty Doctrine?
The Dual-Sovereignty Doctrine is the idea that more than one sovereign (for example a state government and the federal government) may prosecute an individual without violating the prohibition against double jeopardy if the individual’s act breaks the laws of each sovereignty. Further, the Supreme Court has held that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. As such, a citizen owes a separate and independent allegiance to each sovereign government and must abide by their respective laws. This doctrine is sometimes often referred to as an exception to the Double Jeopardy Clause of the Fifth Amendment. However, as Justice Alito points out in Gamble, that this is “not an exception at all” because the text of the Fifth Amendment prohibits a subsequent prosecution for an “offense,” not an act.
The Supreme Court’s Decision
In a 7-2 ruling, the United States Supreme Court declined to overturn previous precedent upholding the Dual-Sovereignty Doctrine. In its opinion, the Supreme Court focused on how Double Jeopardy Bars subsequent prosecutions for offenses and not acts. Double Jeopardy protects individuals from being in jeopardy “for the same offense.” The Court then analyzed previous decisions which all consistently held that an offense is something that is defined by law and that each law is defined by a sovereign aka government. Therefore, because the U.S. Constitution did not do away with the sovereignty of the states, states are free to make their own laws as well. Consequently, both the federal government and the states could have similar interests in preventing specific evils and thus could have identical laws (i.e. prohibiting persons who have certain convictions from possessing a gun). Therefore, a person can be convicted in both federal and state court for the exact same conduct.
The Court provided a number of hypotheticals to support its ruling that the defendant’s argument should fail. For example, the Court gave the hypothetical of what if a US citizen was killed in a different country (which is a federal offense) and that country prosecuted the murderer and convicted him. Per the Court, if it were to apply jeopardy to acts and not just offenses, then arguably the United States Government would be precluded from prosecuting the murderer because he had already been prosecuted by a foreign government. Per the Court, this is not what the founding fathers intended when they ratified the Fifth Amendment. Accordingly, the defendant will not get relief, and he will be forced to serve both his state sentence and his federal sentence.
Facing criminal charges? We can help.
Philadelphia Criminal Defense Attorneys Demetra Mehta and Zak Goldstein
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in state and federal courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and First-Degree Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
Can I be tried for the same crime in state and federal court?
Double Jeopardy Protections
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
Double jeopardy is an issue that frequently comes up when a defendant commits a crime in multiple jurisdictions such as different states, different counties, or the state and federal system. The issue often arises either when the defendant’s conduct violates both state and federal law or when the crime takes place in multiple states. Most people have a general idea of what double jeopardy is, but many are surprised to learn that United States Constitution’s double jeopardy protections are much weaker than one might think. In general, double jeopardy is the idea that a defendant may not be tried twice for the same case. If the defendant has already been convicted or acquitted, then the defendant should not be tried again for the same crime in the same court.
A Defendant Who Is Acquitted Cannot Be Tried Twice In The Same Jurisdiction
This rule holds true in both Pennsylvania and federal courts to the extent that a defendant who is acquitted in a Pennsylvania court may not be tried again in a Pennsylvania court and a defendant who is acquitted in a federal court generally may not be tried again in a federal court. However, the law becomes much more complicated when the issue is whether a defendant may face charges in both Pennsylvania and federal court or Pennsylvania and another state.
The Federal Government May Prosecute Despite a State Court Conviction or Acquittal
Federal law provides very weak protections against a defendant facing charges in both state and federal court for the same conduct. In the federal system, it is possible for the federal government to bring criminal charges against a defendant who has already been convicted of a state crime for the same conduct. The Department of Justice has guidelines which discourage prosecutors from bringing charges against a defendant who has already faced charges in the state system, but there is no absolute ban on the federal government’s ability to do so. Further, federal prosecutors in Philadelphia have recently begun to routinely disregard those guidelines due to political disagreements between the United States Attorney’s Office for the Eastern District of Pennsylvania and the Philadelphia District Attorney’s Office as to how harshly certain defendants should be punished upon conviction. Federal prosecutions of defendants who have previously faced charges in the state system are now increasingly common.
Therefore, a defendant who has been acquitted of charges in the Pennsylvania courts could be charged with and tried in the federal system despite the fact that the defendant already won the case in Pennsylvania. This is because of the idea that the state and the federal government are “dual sovereigns.” This means that under federal law, both the United States and state government may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.
Recently, it appeared that the United States Supreme Court was considering limiting the ability of federal prosecutors to bring charges following a state prosecution. The Court granted certiorari in the case of Gamble v. United States to determine whether the “dual sovereign doctrine” should apply. Unfortunately, the Court has now decided the Gamble case, and the Court voted 7-2 to uphold the concept of dual sovereignty which, for purposes of criminal law, allows both the federal government and a state government to prosecute a defendant for the exact same crime.
Following Gamble, the law remains such that a defendant cannot successfully claim a double jeopardy violation if he or she was acquitted or even convicted of a crime at the state level and the federal government subsequently decides to prosecute the case. This case drew a great deal of attention because of the benefit it could have provided to famous criminal defendant Paul Manafort, President Trump’s former campaign manager, who was convicted in federal court for various offenses. At the time of the decision, there was widespread speculation that President Trump could pardon Mr. Manafort for his federal crimes and he would then be able to move to dismiss pending charges brought by New York State. Because of Gamble, however, defendants like Mr. Manafort cannot be protected from a subsequent state prosecution by a federal pardon.
Pennsylvania Prosecutors Often May Not Bring Charges After A Federal Conviction or Acquittal
Pennsylvania law provides much stronger protections against being tried twice for the same conduct than federal law. A recent case from the Superior Court, Commonwealth v. Gross, illustrates the protections available to a defendant under Pennsylvania law when the defendant has already been tried in federal court. In Gross, the defendant was charged in Pennsylvania with conspiracy to commit unlawful possession of a firearm, firearms not to be carried without a license, possession of firearm prohibited, and lending or giving of firearms prohibited. While the charges were pending, Gross was indicted and pleaded guilty in the federal system for making false statements to a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A).4. Specifically, the federal government alleged that Gross knowingly lied to a licensed firearms dealer about her current residence when completing ATF Form 4473 in connection with the purchase of a firearm by stating that she resided in Pennsylvania when she actually resided in New Jersey.
After Gross pleaded guilty in federal court, she moved to dismiss the Pennsylvania charges on double jeopardy grounds. The trial court denied the motion to dismiss, and Gross appealed. In most cases, a criminal defendant may not appeal the denial of a pre-trial motion before the trial has taken place. However, double jeopardy motions provide a rare instance in which the defendant may take an interlocutory appeal following the denial of a pre-trial motion so long as the trial court does not find that the interlocutory appeal would be frivolous.
The Superior Court reversed the trial court’s denial of the motion to dismiss on double jeopardy grounds because Pennsylvania provides relatively strong protections against being retried for the same offense following a federal or out-of-state conviction or acquittal. The Superior Court noted that Section 111 of the Pennsylvania Crimes Code governs the issue and provides:
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances: (1) The first prosecution resulted in an acquittal or a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless: (i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil.
Pennsylvania May Not Prosecute if the State and Federal Statutes Were Intended to Prevent the Same Harm or Evil
In Gross, the trial court and Commonwealth agreed that Gross had been charged for the same conduct and that the first prosecution had resulted in a conviction. Further, the federal statutes and state statutes clearly had different elements which prosecutors would be required to prove. Therefore, the issue was whether the laws defining each of the offenses were intended to prevent a substantially different harm or evil.
The Superior Court took a fairly broad view in defining the harm or evil which the laws were meant to prevent. The Superior Court found that the purpose of the federal statute prohibiting false statements in connection with the purchase of a firearm was not limited to preventing fraud in connection with the purchase of a firearm from a licensed dealer. Instead, the statute also had the purpose of curbing crime by keeping firearms out of the hands of people who were not entitled to possess them. Thus, the purpose of the federal statute was not only to prevent fraud; it was also to reduce gun violence and violent crime in general.
Likewise, the purpose of the Pennsylvania statutes was to regulate the possession and distribution of firearms, which are highly dangerous and are frequently used in the commission of crimes. Therefore, the Superior Court found that both the federal and state statutes under which Gross was prosecuted were designed to vindicate substantially the same interests, i.e., the protection of the public by prohibiting the transfer of certain firearms to various categories of individuals. Because the Commonwealth failed to show that Pennsylvania had a substantially different interest, the Superior Court barred state prosecutors from bringing charges against Gross for the same conduct for which she had already been convicted in federal court.
Pennsylvania Provides Greater Double Jeopardy Protections Than Federal Law
Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta
As Gross illustrates, Pennsylvania law provides greater double jeopardy protections than federal law. Further, these critical distinctions between state and federal law show that criminal law is complicated and that there may be defenses in cases which a non-criminal lawyer could miss. If you are facing criminal charges, it is critical that you hire a criminal defense attorney who focuses his or her practice on criminal law and stays on top of new developments in the law. If you are facing criminal charges in Pennsylvania or New Jersey, call 267-225-2545 for a free 15-minute criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.
Recent Criminal Defense Awards
PA Superior Court: Defendant Entitled to Less Stringent SORNA Registration Requirements Where Jury Did Not Find Specific Date of Offense
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.
The Pennsylvania Superior Court has decided the case Commonwealth v. Alston. This decision reaffirms previous decisions that held that Sexually Violent Predator hearings under the original Sex Offender Registration and Notification Act (“SORNA”) are unconstitutional. Further, in this case, the Superior Court ruled that where the defendant’s crimes could have occurred both before and after the enactment of SORNA and the jury has not made a specific determination as to the date of the offense, the defendant should be required to register under the less onerous version of the statute.
Commonwealth v. Alston
The defendant was accused of sexually assaulting the complainant from May 28, 2009 to May 1, 2013. The complainant was eleven years old when the abuse began. The complainant’s sister eventually discovered the abuse and notified the police. After a three-day jury trial that began on February 10, 2016, the defendant was found guilty of a multitude of charges including: statutory sexual assault, rape, involuntary deviate sexual intercourse (“IDSI”), indecent assault, criminal use of a communication facility, unlawful contact with a minor and corruption of minors. Significantly, the jury did not specifically determine the dates on which the defendant committed these offenses.
The trial court sentenced the defendant to an aggregate term of 15 to 40 years’ incarceration. Additionally, because rape of a child and IDSI with a person less than 16 years old are both Tier III offenses under SORNA, the defendant was required to register as a sex offender for the rest of his life. The trial court also held a Sexually Violent Predator hearing and determined that the defendant was in fact a Sexually Violent Predator and therefore subject to lifetime reporting requirements.
The defendant eventually appealed, and on appeal he raised one issue: whether the trial court improperly imposed a lifetime reporting requirement under the original SORNA statute following the SVP hearing?
What is an SVP?
A SVP is a sex offender who is deemed to have a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. After someone is convicted of sexually violent offense in Pennsylvania, the court can order a SVP assessment to be conducted by the Sex Offender Assessment Board “SOAB”). The SOAB publishes its findings to the parties, and the court will then hold a hearing to determine whether the person is an SVP. It is noteworthy that the standard proof for these hearings is not beyond a reasonable doubt (the standard for criminal trials). Instead, it is the clear and convincing evidence standard, which is a much lower standard. The original SORNA statute allowed the judge to make the SVP determination instead of a jury, and the amended SORNA statute retains this defect.
What Happens if You Are Classified as an SVP?
If someone is deemed an SVP, the person is required to register with the Pennsylvania State Police for the rest of their life. Additionally, the individual is required to participate in monthly (at a minimum) sex offender counseling from a provider that is approved by the SOAB. Also, the local authorities will notify the community and provide the SVP’s name and address. This means that someone who was convicted of a Tier I Offense which may only require 15 years of registration could be required to register for life if they are found to be a Sexually Violent Predator.
Why Were SVP Hearings Ruled Unconstitutional?
In Commonwealth v. Butler, the Pennsylvania Superior Court held that SVP hearings as provided for by SORNA are unconstitutional because they expose defendants to an enhanced criminal penalty without any requirement that the jury make the necessary findings beyond a reasonable doubt. Because the SVP procedures permitted the trial judge to make the ruling instead of a jury and because they used a lesser standard, the Butler Court found that the procedures were unconstitutional. The Butler Court held that the trial courts can no longer designate convicted defendants as Sexually Violent Predators or hold SVP hearings “until the General Assembly enacts a constitutional designation mechanism.”
Is There a New Version of SORNA?
Yes. In February of 2018, Governor Tom Wolf signed into law Act 10. Act 10 amended several provisions of SORNA and added new sections. Notably, Act 10’s Subchapters H and I addressed reporting requirements for sex offenders that committed their crimes on or after April 22, 1996, but before December 20, 2012. Subchapter I has less stringent reporting requirements than Subchapter H. Notably, Act 10 retained the “clear and convincing” standard for SVP hearings and there was not a “constitutional designation mechanism” in the statute either. Challenges to the new statute are ongoing. The Commonwealth and legislature, however, are defending the statute by arguing that because the reporting requirements are somewhat less stringent, the SVP designation no longer constitutes punishment. If it does not constitute criminal punishment, then the facts do not need to be found by a jury using the beyond a reasonable doubt standard. This argument seems unlikely to prevail, but it is always difficult to predict what the courts will do in these cases.
The Pennsylvania Superior Court’s Decision
The Court held that the defendant should not have been deemed an SVP because the procedures for finding that someone is an SVP under the old version of SORNA remain unconstitutional and because the jury did not make a specific finding as to the dates on which the illegal sexual conduct occurred. Because the defendant’s alleged actions could have occurred both before and after SORNA’s effective date and the jury did not make a specific finding, the defendant was entitled to the benefit of the doubt because any ambiguity in criminal law generally must be resolved in favor of the defendant. Therefore, the Court ruled that he should be required to register under the newly-created Subchapter I of the amended SORNA statute. Therefore, the case was remanded to the trial court for the defendant to be advised of his new registration requirements and raise any challenges to those requirements. This opinion did not address the constitutionality of the amended SORNA statute, and that litigation is ongoing at this time.
Facing criminal charges? We can help.
Criminal Defense Lawyers Demetra Mehta and Zak Goldstein
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Supreme Court: Police Cannot Legally Stop You Just For Carrying A Gun
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Hicks, holding that the police cannot stop someone just because they believe the person has a gun. This decision could affect hundreds of cases, especially in Philadelphia, where the police routinely stop people for carrying guns without any actual knowledge of whether that person may be carrying lawfully.
Commonwealth v. Hicks
On June 28, 2014, at approximately 2:30 A.M., a remote camera operator conducting live surveillance of a gas station and convenience store in Allentown, Pennsylvania notified police officers that a patron of the establishment was in possession of a firearm. The camera operator advised officers that the individual showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside the convenience store. This individual eventually became the defendant. Notably, the defendant possessed a valid license to carry a concealed firearm, and he was not statutorily prohibited from possessing a firearm. Accordingly, on the morning in question and at the observed location, there was nothing unlawful about the defendant’s possession of the handgun nor the manner in which he carried it. It is also not illegal to show a gun to someone else (so long as you do not point it at them).
While responding officers were en route, the defendant entered and exited the convenience store and then reentered his vehicle. Before the defendant could exit the parking lot, numerous police officers in marked vehicles intercepted and stopped his vehicle. Believing that the defendant had moved his hands around inside the vehicle, one of the officers drew his service weapon as he approached the defendant’s vehicle and ordered him to keep his hands up. Other officers came and restrained the defendant and removed the firearm. The officers stated that there was an odor of alcohol emanating from the defendant. They then searched him and recovered a small amount of marijuana.
Because the defendant had a license to carry a firearm, he was not charged with any crimes relating to the firearm. However, he was charged with DUI, possession of a small amount of marijuana, and disorderly conduct. The defendant filed an omnibus pre-trial motion seeking suppression of the evidence. He also filed a writ of habeas corpus alleging that there was not sufficient evidence to hold him for trial on the charge of disorderly conduct. The trial court agreed and dismissed the disorderly conduct charge. However, the court denied his motion to suppress.
In denying his motion, the trial court stated that possession of a concealed weapon in public creates the reasonable suspicion justifying an investigatory stop in order to investigate whether the person is properly licensed. This was based on the Pennsylvania Superior Court decision in Commonwealth v. Robinson (this is also referred to as “The Robinson Rule”). After the motion, the defendant proceeded to a non-jury trial where the court found him guilty of one count of DUI and acquitted him of the remaining charges. He was sentenced to a term of incarceration of thirty days to six months and was assessed a monetary fine. The defendant subsequently filed an appeal. The Superior Court affirmed his decision. Like the trial court, the Superior Court focused mainly on The Robinson Rule and held that the officers had reasonable suspicion to stop the defendant. The defendant then filed an allowance of appeal to the Pennsylvania Supreme Court which was granted.
What is the Robinson Rule?
The Robinson Rule was a rule that provided that carrying a concealed firearm constituted per se reasonable suspicion authorizing the use of official force to seize an individual in order to investigate whether the person is properly licensed. In other words, if the police received information that you were in possession of a firearm you could be stopped, by force if necessary and without a warrant, and subjected to an investigation to determine whether or not you were lawfully allowed to possess the firearm.
For those of you familiar with the Terry doctrine, this seems out of place with it because possessing a firearm is often not illegal. The Second Amendment of the United States Constitution allows for individuals to possess firearms. Because a Terry stop is only warranted when the officer has a reasonable suspicion that criminal activity is afoot (or in other words an objectively reasonable belief based on all of the facts known to the officer that the person stopped is, or is about to be, engaged in criminal activity). With Terry in mind, it seems peculiar that The Robinson Rule would be constitutional. This is what the defendant argued in his appeal to the Pennsylvania Supreme Court.
Carrying A Gun Does Not Give Police Reasonable Suspicion
In its decision, the Pennsylvania Supreme Court first analyzed several of its prior decisions and decisions from other jurisdictions that addressed the issue of whether the police can stop someone for possession of a firearm. For instance, the Court analyzed the decisions in Commonwealth v. Hawkins and Commonwealth v. Jackson, two cases that are routinely cited when litigating a motion to suppress a gun. In these decisions, the Pennsylvania Supreme Court highlighted how its predecessors routinely dismissed the Commonwealth’s argument that the police can stop someone simply because they have information that they have a gun.
The Court also applied the Terry and its progeny of cases to the facts in the defendant’s case. Based on its analysis, the Pennsylvania Supreme Court found that The Robinson Rule subverts the fundamental principles of Terry. The Court stated “[w]e find no justification for the notion that a police officer may infer criminal activity merely from an individual’s possession of a concealed firearm in public…it is not a criminal offense for a license holder…to carry a concealed firearm in public.” The Court further stated “[u]nless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there is simply no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.”
Finally, the Court analogized this to driving a car. It is obviously a requirement for someone to have a driver’s license to operate a motor vehicle, however the police cannot stop every single person to ascertain this information. Because possessing a gun is legal, police are not allowed to stop every person to see if they have a license. Consequently, the Supreme Court found that the lower courts erred when denying the defendant’s motion to suppress. Therefore, the Court remanded the case for the trial court to rule on whether police had any basis for stopping the defendant beyond his mere possession of a concealed weapon.
Facing criminal charges? We can help.
Criminal Defense Attorneys Demetra Mehta and Zak Goldstein
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.