Mueller’s case facing possible hit from Supremes
Fight over state, federal sentences based on single incident in play
Published: November 29, 2018
The case of a man who was sentenced to prison twice for the same incident, once by state prosecutors and once by the feds, could play a role in special counsel Robert Mueller’s investigation into alleged collusion by the Russians and the Trump campaign in 2016.
Arguments in the case of Terence Gamble are scheduled to be heard in a few days.
He was sentenced to prison twice for possessing a gun following a felony conviction. He was stopped by Alabama police in 2015 for driving with a faulty headlight, and a search of the car turned up a handgun.
Since he had a felony conviction, he was convicted in state court for illegal possession of a firearm and sentenced to a year in prison. While the state case was pending, the feds also charged him with being a felon in possession of a firearm.
He cited the Fifth Amendment ban on double jeopardy, but the federal court rejected the argument, sentencing him to 46 months in prison.
The sentence technically was allowed because the Supreme Court has created an exception to the double jeopardy rule, allowing successive prosecutions by “separate sovereigns.”
But in a commentary, Amy Howe at Scotusblog said that if the court agrees that the defendant should not be prosecuted, convicted and imprisoned twice for the same incident, that “could have a widespread impact that could extend to prosecutions by Robert Mueller.”
He’s the special counsel looking into claims of Russian influence on the Trump campaign during the 2016 presidential race.
“Gamble’s case would be an interesting one in any term because of the constitutional and criminal law issues involved,” Howe said. “But his case is drawing even more attention because it is playing out against the backdrop of Robert Mueller’s investigation into potential Russian interference in the 2016 election.
“There has been widespread speculation that, if associates or aides to President Donald Trump are convicted on federal criminal charges arising from the Mueller probe, the president could pardon them. Under the separate sovereigns doctrine, however, they could theoretically still be charged in state court (for example, in New York or Virginia) even after a pardon, so a ruling for Gamble might allow those defendants to get off scot-free,” she said.
“Other legal scholars, however, have countered that even a ruling for Gamble will likely have little effect on the Mueller probe, because both New York and Virginia ‘already had their own double jeopardy rules in place,’ which would have required Mueller ‘to strategize his criminal charges and guilty pleas around those rules.’ Either way, the Mueller probe will almost certainly add an interesting twist to next week’s argument,” she said.
The Rutherford Institute, in a filing with the court, said it’s time for the practice of charging twice to go.
“Despite the clear mandate of the Constitution against double jeopardy, we live in a country where a person can be tried for a crime a second time even after having be[en] acquitted by a jury for that same crime,” said Rutherford President John Whitehead.
“The time is long overdue for the courts to abolish the ‘separate sovereigns’ doctrine and protect the fundamental right to be free from multiple prosecutions for the same offense.”
The Fifth Amendment requires that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb.”
Whitehead explained the amendment represents the “fundamental principle that it is unfair and an abuse of power for the government to seek to put a person on trial for a criminal offense after that person has already been tried and acquitted (or convicted) of that same offense.”
The dual trials by state and federal prosecutors were allowed, however, because of the high court’s precedent, dating back more than a century, that the state and federal governments are separate.