Supreme Court Case on Double Jeopardy that Might Affect States' Ability to Prosecute Tax Crimes After Federal Jeopardy (12/3/18; 12/6/18)

I picked up this in yesterday's Washington Post:  Robert Barnes, Supreme Court to consider case that could affect potential Manafort prosecutions (WAPO 12/2/18), here.  The  opening is )bold face supplied by JAT):

The Supreme Court next week takes up the case of a small-time Alabama felon, Terance Gamble, who complains that his convictions by state and federal prosecutors for the same gun possession crime violate constitutional protections against double jeopardy.
But likely to be watching the proceedings closely will be those concerned about a big-time felon, Republican consultant and former Trump campaign chairman Paul Manafort, who was prosecuted by special counsel Robert S. Mueller III for tax fraud. 

With President Trump keeping alive prospects that he might pardon Manafort, Gamble v. United States might be redubbed Manafort v. Mueller, joked Thomas C. Goldstein, an attorney who regularly argues before the Supreme Court.

The outcome in the case could affect nascent plans by states to prosecute Manafort under their own tax evasion laws — New York, in particular, has expressed interest — should Trump pardon Manafort on his federal convictions. 

The double jeopardy clause of the Constitution’s Fifth Amendment prohibits more than one prosecution or punishment for the same offense. But the Supreme Court since the 1850s has made an exception, allowing successive prosecutions and punishments if one is brought by state prosecutors and the other by the federal government. (One early case from that time involved counterfeiting; another was prosecution of someone harboring a fugitive slave.) 

In Gamble, the court is reconsidering these precedents. Almost none of the briefs filed in the case speculate on how a presidential pardon of a federal conviction would affect prosecutors at the state level should the so-called separate sovereigns doctrine be renounced.

The article then discusses some of the ramifications in lay terms.  The key ramification in today's environment is the Manafort matter if the President should pardon him, a pardon that, if granted, is likely to cover all of his federal crimes, charged or uncharged and known or unknown. 

I thought readers of this Blog might also like a more lawyerly discussion offered by the SCOTUSblog:  Amy Howe, Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception (SCOTUSblog 11/29/18), here.  Here are some excerpts:

Next week the Supreme Court will hear oral argument in the case of an Alabama man who was convicted of both federal and state gun charges arising from the same traffic stop. He is challenging what is known as the “separate sovereigns” doctrine – the idea, based on longstanding Supreme Court rulings, that the federal government and Alabama are two different sovereigns and therefore can both prosecute him for the same conduct without running afoul of the Constitution’s ban on double jeopardy. *** 

* * * * 

In the Supreme Court, the federal government insists that the separate sovereigns doctrine should remain in place. The text of the double jeopardy clause bars successive prosecution and punishment for the same offense, the government emphasizes, not for the same conduct. And when it uses the term “offence,” the government continues, the double jeopardy clause is referring to the violation of a law. The same conduct can violate two different sovereigns’ laws and constitute two different offenses, which each sovereign can then punish and prosecute separately. If the Framers had wanted the clause to apply more broadly, the government adds, they would have used the term “conduct” or “acts” rather than “offence.” 

Gamble offers a very different interpretation of the text, telling the justices that nothing in the text points to any exceptions to the double jeopardy clause. Instead, he stresses, the text of the clause bars prosecution of the “same offence,” without suggesting that two prosecutions for the same offense would be acceptable as long as they are prosecuted by two separate sovereigns. To the contrary, Gamble observes, Congress considered but rejected an exception that would have allowed the federal government to prosecute a defendant even after he’d been convicted for the same offense under state law.
Gamble contends that the separate sovereigns doctrine is also inconsistent with the purpose of the double jeopardy clause. Permitting two consecutive prosecutions for the same conduct on the ground that prosecutions are brought by two different sovereigns, Gamble argues, “hardly serves the deeply rooted principles of finality and fairness the Clause was designed to protect,” particularly when it would still require two trials and could potentially lead to double punishments. 

* * * * 

Gamble’s case would be an interesting one in any term because of the constitutional and criminal law issues involved. 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. 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.

JAT Comments:

1.  Strictly speaking, the double jeopardy policy requires that the defendant have been put in jeopardy the first time.  That means that the defendant must have been charged with the crime and the case proceeded to some resolution.  That would require a trial or a plea.  So, if the double jeopardy provision were now interpreted to reject the separate sovereign concept, the states may be unable to charge, try and punish Manafort for federal tax crimes he was charged with and convicted.  I do not think it would cover state crimes where the related federal offense, although pardoned, was not charged or convicted.  The Manafort investigation and documents that, one way or another may be disclosed, may have identified any number of state offenses for which Manafort might be charged.

2.  DOJ has a related policy, called the "Petite Policy" named for a case that inspired the policy.  The policy is stated at Justice Manual (successor to the USAM) 9-2.031 - DUAL AND SUCCESSIVE PROSECUTION POLICY ("PETITE POLICY"), here.  This policy is a DOJ policy to forego sucessive prosecutions after state or federal prosecutions.  It is a policy rather than a constitutional requirement (at least as the Constitution, including the double jeopardy guarantee is interpreted as of now).  Key excerpts:

Statement of Policy: This policy establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding. See Rinaldi v. United States, 434 U.S. 22, 27, (1977); Petite v. United States, 361 U.S. 529 (1960). Although there is no general statutory bar to a federal prosecution where the defendant's conduct already has formed the basis for a state prosecution, Congress expressly has provided that, as to certain offenses, a state judgment of conviction or acquittal on the merits shall be a bar to any subsequent federal prosecution for the same act or acts. See 18 U.S.C. §§ 659, 660, 1992, 2101, 2117; see also 15 U.S.C. §§ 80a-36, 1282. 

The purpose of this policy is to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors. 

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General. 

Satisfaction of the three substantive prerequisites does not mean that a proposed prosecution must be approved or brought. The traditional elements of federal prosecutorial discretion continue to apply. See Principles of Federal Prosecution, JM 9-27.110. 

In order to insure the most efficient use of law enforcement resources, whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should, as soon as possible, consult with their state counterparts to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved, and, if possible, to resolve all criminal liability for the acts in question.

As noted above, the states may have a similar policy, but presumably the application would require that the person have been first subjected to some type of prosecution and conviction.  A Presidential pardon would likely cover crimes beyond those for which Manafort was prosecuted or convicted.

3.  (ADDED 12/6/18 3:00pm)  SCOTUSblog offers this summary of the oral argument suggesting that the majority may not be prepared to overturn the separate sovereigns doctrine.  Amy Howe, Argument analysis: Majority appears ready to uphold “separate sovereigns” doctrine (SCOTUSblog 12/6/18), here.  The audio and coordinated transcript of the oral argument is here.