United States: Supreme Court Upholds Dual-Sovereignty Doctrine Allowing Parallel Criminal Prosecutions At Home And Abroad

Last Updated: July 4 2019
Article by Elizabeth Vicens and Rahul Mukhi

On June 17, 2019, in a decision interpreting the Fifth Amendment's Double Jeopardy Clause, the United States Supreme Court in Gamble v. United States upheld the doctrine of dual-sovereignty.[1] In doing so, the Court confirmed that one sovereign may prosecute a defendant under its laws even if another sovereign has already prosecuted the defendant for the same conduct, notwithstanding the Fifth Amendment's prohibition against multiple prosecutions for the "same offence."[2] While Gamble does not represent a shift in the law, the Court's opinion has implications for companies facing parallel investigations by the Department of Justice ("DOJ") and other prosecutors, whether state or foreign authorities.

Background

The Double Jeopardy Clause states that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . ."[3] The Clause "protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense."[4]

In Gamble, the defendant pleaded guilty in Alabama to the state crime of possession of a firearm by a person previously convicted of a crime of violence.[5] In connection with the same incident, federal prosecutors in Alabama later charged the defendant with violating 18 U.S.C. § 922(g)(1), the federal statute prohibiting anyone convicted of a prior felony from possessing a firearm.[6] Gamble argued that his federal prosecution violated the Double Jeopardy Clause.[7]

The Supreme Court's Decision

In a 7-2 decision authored by Justice Alito, and joined by Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Thomas, the Court affirmed the lower courts' decision upholding Gamble's federal conviction, confirming the principle that "a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute. Or the reverse may happen . . . ."[8] Among other things, in light of the Court's understanding that the original meaning of the term "offence" was tied to a specific sovereign's laws,[9] the Court concluded that there was "no reason to abandon the sovereign-specific reading of the phrase 'same offence,' from which the dual-sovereignty rule immediately follows."[10] The Court also emphasized that the dual-sovereignty rule reflects the principle that separate sovereigns can have different interests in punishing the same conduct, and a crime against each "constitutes [multiple] offenses because each sovereign has an interest to vindicate."[11] The Court further rejected the claim that "the proliferation of federal criminal law" justifies departing from the dual-sovereignty precedent because the "argument obviously assumes that the dual-sovereignty doctrine was legal error from the start," an argument foreclosed by the Court's prior precedent.[12]

Although the case at hand involved parallel federal and state prosecutions, in its opinion, the Court stressed that the dual-sovereignty principle "comes into still sharper relief" when prosecutions are brought in the United States for crimes committed abroad because, in that case, the United States and the foreign state have different interests to vindicate and therefore can both properly seek to punish the offender.[13] The Court observed that a foreign state could appropriately prosecute the alleged offender due to its interest in maintaining the peace within its borders, and the United States could bring charges under federal statutory law and customary international law in order to vindicate the interests of those under the protection of U.S. law.[14] The Court went on to identify "other reasons not to offload all prosecutions for crimes involving Americans abroad," including a lack of confidence in the foreign state's legal system and/or a belief that protecting U.S. nationals serves certain core national interests concerning "security, trade, commerce, or scholarship."[15] By the same token, the Court noted that the United States may also have an interest in punishing crimes perpetrated abroad by U.S. nationals, particularly those that may damage domestic security or foreign relations.[16]

Justices Ginsburg and Gorsuch wrote the two dissenting opinions. Justice Ginsburg disagreed with the majority's reasoning on several fronts and further noted that overruling the doctrine would cause limited practical disruption—in part because prosecutors can often avoid potential double jeopardy protection altogether by bringing successive charges that require proof of different statutory elements, and in part because of the DOJ's Petite policy.[17] Under the Petite policy, the DOJ pursues federal charges "'based on substantially the same act(s) or transaction(s)' previously prosecuted in state court only if the first prosecution left a 'substantial federal interest . . . demonstrably unvindicated' and a Department senior official authorizes the prosecution."[18]

Justice Gorsuch, in his dissent, laid out a lengthy argument why the dual-sovereignty rule "was wrong when it was invented" and found inadequate support in the text of the Double Jeopardy Clause.[19] Justice Gorsuch further rejected any concern that overturning the dual-sovereignty doctrine "could undermine the reliance interests of prosecutors in transnational cases who might be prohibited from trying individuals already acquitted by a foreign court," noting among other things that "because [the Court's precedent in] Blockburger requires an identity of elements . . . domestic prosecutors, armed with their own abundant criminal codes, will often be able to find new offenses to charge if they are unsatisfied with outcomes elsewhere."[20]

Impact and Implications

To the extent the vitality of the dual-sovereignty rule was in doubt before Gamble, the Court's decision makes clear that the doctrine remains on solid ground and a majority of the justices are unprepared to effect a significant shift in this area of the law.

Most directly, Gamble confirms that the Double Jeopardy Clause does not bar ongoing or future federal prosecutions for offenses that were the subject of an acquittal or conviction in state court (or in a foreign court), and vice versa. This means that companies remain exposed to potential criminal charges and penalties by multiple authorities for the same underlying conduct. Recognizing that large-scale international investigations often require international cooperation, in recent years, the DOJ has regularly worked in tandem with foreign prosecutors to investigate and prosecute the same underlying acts of alleged foreign bribery. Similarly, the DOJ and state prosecutors have brought parallel enforcement cases in the areas of financial fraud, market manipulation, and money laundering, among others.

The DOJ has been responsive to the criticism that at times companies have faced repeated punishment for the same conduct beyond what appears necessary to rectify the harm and promote deterrence. Specifically, as we have discussed, the DOJ has implemented an "anti-piling on" policy designed to address situations where companies are facing parallel investigations by encouraging federal prosecutors to coordinate with other regulatory bodies, including with respect to penalties. Consistent with the new policy, several recent DOJ resolutions have resulted in companies receiving cross-credit for penalties across multiple regulators.[21] As one high-ranking DOJ official recently noted, the policy ensures that "companies that run afoul of the law are not over-penalized for their misconduct as authorities work to resolve overlapping law enforcement interests."[22]

While the DOJ's anti-piling on policy has been a positive step in alleviating the potential burdens to companies subject to overlapping regulators, the policy itself and its application is subject to the DOJ's wide discretion. The Supreme Court's decision in Gamble is notable because in the event the DOJ stepped back from the policy, or decided it would not follow the policy in a particular case, Gamble constrains any argument a company may have that the DOJ's policy is legally required under the federal Double Jeopardy Clause. Thus, policy arguments against repeat punishment and application of discretionary factors will potentially play an even larger role when seeking relief from penalties being sought by multiple regulators for related conduct. According to the DOJ, such considerations include the egregiousness of the wrongdoing, statutory mandates requiring penalties, the risk of delay in finalizing a resolution, and the adequacy and timeliness of a company's disclosures and cooperation with the DOJ.[23] Among other things, companies facing the prospect of parallel investigations in multiple jurisdictions should keep these factors in mind in weighing whether to self-report conduct and cooperate with prosecutors.

Footnotes

[1] 587 U.S. ___ (2019).

[2] See Slip Op. at 1-3.

[3] U.S. Const. amend. V.

[4] See Monge v. California, 524 U.S. 721, 727-28 (1998).

[5] See Slip Op. at 2; see also United States v. Gamble, No. 16-00090-KD-B, 2016 WL 3460414, at *1 (S.D. Ala. June 21, 2016).

[6] See Slip Op. at 2 (internal quotation marks omitted).

[7] See id. at 2-3.

[8] See id. at 1-2.

[9] See id. at 3-4.

[10] See id. at 5.

[11] See id. at 5-8.

[12] See id. at 30-31.

[13] See id. at 7. The Court offered as an example the murder of a U.S. national abroad: in that instance, the foreign country may have an interest in protecting the peace within its jurisdiction, while the United States will have an interest in punishing an act of violence against one of its nationals. Id.

[14] See id.

[15] See id.

[16] See id. at 7-8

[17] See Opinion of Ginsburg, J., dissenting, at 5-12.

[18] Id. at 11-12 (quoting Dept. of Justice, Justice Manual §9-2.031(A) (rev. July 2009)).

[19] See Opinion of Gorsuch, J., dissenting, at 1-6, 9-18, 25.

[20] See id. at 23-24 (noting also that "[d]omestic prosecutors regularly coordinate with their foreign counterparts when pursuing transnational criminals, so they can often choose the most favorable forum for their mutual efforts").

[21] See, e.g., Press Release, U.S. Dep't of Just., TechnipFMC Plc and U.S.-Based Subsidiary Agree to Pay Over $296 Million in Global Penalties to Resolve Foreign Bribery Case (June 25, 2019), https://www.justice.gov/opa/pr/technipfmc-plc-and-us-based-subsidiary-agree-pay-over-296-million-global-penalties-resolve (announcing that oil and gas provider TechnipFMC plc and its U.S. subsidiary Technip USA, Inc. had entered into a deferred prosecution agreement relating to violations of the anti-bribery provisions of the Foreign Corrupt Practices Act (FCPA)). Emphasizing that the resolutions were the result of "international coordination," the DOJ noted that the company also resolved related investigations by Brazilian authorities and that the DOJ would credit Technip the approximately $214 million it agreed to pay to settle those investigations against the overall $296 million criminal penalty it agreed to pay in connection with its U.S. resolution. See id.

[22] See Remarks by Deputy AAG Matt Miner at ABA Criminal Justice Section Third Global White Collar Crime Institute Conference, June 27, 2019, at https://www.justice.gov/opa/speech/deputy-assistant-attorney-general-matt-miner-delivers-remarks-american-bar-association.

[23] See Jennifer Kennedy Park & Jonathan Kolodner, Deputy Attorney General Rosenstein Announces New Policy to Limit "Piling On" in Enforcement Actions, Cleary Enforcement Watch Blog (May 10, 2018), https://www.clearygottlieb.com/-/media/files/alert-memos-2018/deputy-attorney-general-rosenstein-announces-new-anti-piling-on-enforcement-policy.pdf.

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