Supreme Court to weigh overturning separate-sovereigns doctrine in Gamble v. United States

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Katie Aguilera

Tomorrow, December 6, 2018, the Supreme Court of the United States will hear arguments in a case that has the potential to overturn the long-standing legal doctrine of separate-sovereigns, or dual sovereignty.  This doctrine holds that the States’ governments and the Federal government are separate sovereign entities and can therefore prosecute a defendant for the same offense without violating the fifth amendment’s double jeopardy clause.  The case the court will hear tomorrow is Gamble v. United States.

Terance Martez Gamble, according to court documents, was convicted of second-degree robbery on September 4, 2008, in Alabama state court.  Seven years later, he was stopped while driving by a Mobile Police Department officer because one of his head lights was out.  The officer smelled marijuana and searched Gamble’s vehicle, finding marijuana, a digital scale, and a handgun.

On April 28, 2016, Gamble was indicted by a federal grand jury for possessing a firearm by a felon.  On May 27, 2016, Gamble was convicted in Alabama state court of being a prohibited person in possession of a firearm.  Both the federal indictment and the Alabama state conviction were for the same incident.

Gamble “moved to dismiss his federal indictment on double jeopardy grounds. The district court denied the motion, concluding that petitioner’s argument was foreclosed by binding precedent in this Court and the Eleventh Circuit holding that the federal government is a separate sovereign from an individual state and that the Double Jeopardy Clause does not prohibit separate prosecutions by separate sovereigns.”

Gamble pleaded guilty to the federal charge as part of a plea agreement, but he reserved the right to appeal the denial of his motion to dismiss on the grounds of double jeopardy.  He was sentenced for the federal charge to 46 months in prison that would run concurrently with the sentence he received from Alabama state.

This is not the first time the Supreme Court has heard arguments in favor of overturning the separate-sovereigns doctrine.  In fact, according to the government’s brief in opposition, the Supreme Court has upheld the doctrine 20 times in the years between 1852 and 1959.

Many organizations have filed briefs in support of Gamble or in support of the United States in this case.   These range from the ACLU, military legal divisions, criminal defense lawyers, and Utah Senator Orrin Hatch in support of Gamble, to the National Indigenous Women’s Resource Center, National Congress of American Indians, National Association of Counties, National League of Cities, National District Attorneys Association, National Sheriff’s Association and more in support of the government.  All the documents can be found here.

The National Indigenous Women’s Resource Center and National Congress of American Indians argue in their brief that “overturning the Court’s long-standing precedent regarding the dual sovereign doctrine, which has allowed both tribal and the federal governments to prosecute for violations of their respective criminal laws, would have significant ramifications in Indian country. Not only would it undermine core principles of local control for criminal justice, it would preclude the effective prosecution of those who commit serious violent crimes against Native women and children.”

According to their brief, the Indian Civil Rights Act prohibits Tribal Courts from imposing sentences longer than a year for any criminal offense, with some exceptions where certain requirements are met and the sentence can be lengthened to three years.  This means there is often a reliance on the federal government to prosecute defendants in order for longer sentences to be imposed on them, providing greater protection for their victims.

If the Supreme Court rules in favor of Gamble and the separate-sovereigns doctrine is overturned, Tribal Nations will be required to “choose whether to prosecute a case before conclusion of the investigation that determines whether the U.S. Attorney will prosecute.”  If the Tribal courts decide to prosecute, the federal government will then be unable to charge the defendant for the same crime.  If they opt not to prosecute in hopes the federal government will, it’s possible the defendant will never face charges if the federal investigation doesn’t result in an indictment.

The brief argues “this Court should preserve the ‘separate sovereigns’ doctrine as applied to prosecution by both tribal governments and the federal government, either by rejecting Petitioner’s [Gamble] arguments in their entirety, or by making it clear that this Court’s decision in this case should not be read as addressing the unique considerations presented in the context of dual federal and tribal prosecution.”

According to this November 29, 2018 Argument Preview by Amy L. Howe, a ruling in favor of Gamble “could have widespread impact that could extend to prosecutions by Robert Mueller, the special counsel appointed to investigate Russian efforts to influence the 2016 election.”

The article goes on to state that the government warns of a variety of problems that would arise if the Supreme Court overturns the separate-sovereigns doctrine.  Howe writes, “under Gamble’s interpretation, the U.S. or a state government would not be able to prosecute a foreign terrorist if a foreign government had also tried him.”  Additionally, if the doctrine is overturned, it could “lead to a flood of challenges by inmates convicted by two different sovereigns who want to overturn the second conviction, even if it became final long ago.”

Senator Orrin Hatch (R-UT) argues in support of overturning the separate-sovereigns doctrine in a lengthy brief. In this brief it states “when this Court last reaffirmed the ‘dual sovereignty’ exception to the Fifth Amendment’s guarantee against successive prosecutions for the same crime, it did so to preserve the balance of power in our federalist system.  As a matter of both constitutional theory and historical practice, the states bore primary responsibility for defining and prosecuting general crime, with federal criminal law focused on relatively narrow and specific areas of federal interest.

But the balance between state and federal power to define and punish crime has shifted massively since the vitality of the dual sovereignty doctrine was last before this Court.  The federalization of criminal law over the intervening decades has given federal prosecutors the ability to bring coordinate federal charges for a wide array of conduct…In this hyperfederalized context, the federalist underpinnings of this Court’s prior dual-sovereignty decisions no longer reflect the reality of federal-state relations, and may well undermine, rather than support, an appropriate division of power.”

The ACLU makes a similar argument, noting that according to The Court and Overcriminalization by Michael Pierce, the United States criminal code contains 27,000 pages of federal criminal laws.  This was not the case when the Supreme Court upheld the separate-sovereigns doctrine in the past.  The increase in federal criminal laws greatly increases the risk of what was previously considered a rare occurrence–when  charges are brought against a defendant by a state and the federal government for the same offense.  This, the ACLU argues, is one of numerous important reason to do away with the separate-sovereigns doctrine.

The U.S. Navy-Marine Corps Appellate Defense Division, U.S. Coast Guard Office of Member Advocacy and Legal Assistance—Appellate Defense, U.S. Air Force Appellate Defense Division, and the U.S. Army Defense Appellate Division filed a brief of Amici curiae in support of overturning the separate-sovereigns doctrine.  In it, they state:

“Amici ask this Court to overrule the separate-sovereigns exception so those who serve our country receive the proper Double Jeopardy protections of the Constitution, our basic charter of rights which they took an oath to defend with their lives.”

They go on to argue “…the separate-sovereigns exception allows the military to overrule the verdict of a state jury, with its jurors selected from a representative cross-section of the community, by meeting a lesser standard:  currently a two-thirds majority vote for conviction by a panel of military members, each senior to the defendant and picked by the defendant’s commander.”

The timing of this case is notable considering the potential effects to Robert Mueller’s investigation.  It has been speculated that people convicted of federal crimes as a result of Mueller’s investigation could receive pardons from President Trump and without the separate-sovereign doctrine, the States wouldn’t be able to bring charges against those people.  It has even been suggested that the push to get Judge Brett Kavanaugh confirmed and seated on the Supreme Court was to ensure a majority vote in favor of overturning the separate-sovereigns doctrine for that very reason.

However, this October 4, 2018 Slate article by Teri Kanefield and Jed Shugarman explains how Gamble v. United States is unlikely to have much, if any, effect on Mueller’s investigation.  They write, “in theory, a Trump associate could plead guilty to a federal crime, receive a pardon, and Gamble could protect him from a state prosecution.  In reality, special counsel Robert Mueller seems to have already strategized around this problem.

All such hypotheticals aside, though, double jeopardy is a real problem affecting the rights of ordinary citizens.”

Ordinary citizens such as Terance Gamble, Benjamin Cunha, and countless others, who have faced charges from both state and federal prosecutors for the same offense.  These convictions result in longer prison sentences and contribute to the mass incarceration crisis this nation faces.

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Full pardons for Dwight and Steven Hammond

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President Trump has granted full pardons for Dwight and Steven Hammond, Oregon ranchers imprisoned for arson on federal land.

The Hammonds pleaded guilty in 2012 to two counts of arson on federal land which, according to mandatory minimum sentencing guidelines, should have resulted in five year prison sentences.  The judge in the case however, decided that a five year sentence would “result in a sentence which is grossly disproportionate to the severity of the offenses here,” and instead sentenced Dwight Hammond to three months in prison and Steven Hammond to one year and one day.

The federal government appealed the sentences.  The Ninth Circuit of Appeals remanded the case back to the Oregon US District Court where the original sentence was overturned and the Hammonds were ordered to return to prison to serve the remainder of a five-year sentence.

The Hammonds’ story gained national attention after Ammon and Ryan Bundy and supporters occupied the Malheur National Wildlife Refuge in Harney County, Oregon  The armed occupation began after a support rally for the Hammonds took place in Burns, Oregon.

The Bundys initially claimed they came to Harney County to protest the Hammonds’ return to federal prison and in fact they had urged Dwight and Steven Hammond not to turn themselves in.  The Hammonds did not support the occupation however, and willingly returned to prison in January 2016.

Oregon Representative Greg Walden (R) recently asked President Trump to pardon the Hammonds.

Bathroom graffiti inspires juror in J20 trial to “Google jury nullification.”

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Katie Aguilera

On Thursday, May 31, 2018, a juror sent a note to Judge Kimberley Knowles in a Washington D.C. superior court room informing Knowles that she had googled jury nullification after seeing the words “Google jury nullification” written in a bathroom stall at the courthouse.  She googled it, read about it, told the other jurors about it and then informed the judge of her actions.

This trial is the second of many planned for protesters arrested on January 20, 2017 during protests in Washington D.C. in which police officers were injured, windows were broken, and a limousine was destroyed.  Four defendants who allegedly participated in property damage that occurred during the Inauguration Day protests are currently on trial.  They are Michael Basillas, Seth Cadman, Anthony Felice, and Cathseigh Webber.

Six defendants faced felony charges in November 2017 but the jury in that trial acquitted them of all charges December 21, 2017.  In that trial, the prosecution made no effort to prove that the six defendants were guilty of any of the property damage, stating instead that “though there is no evidence the defendants caused any of the damage directly, the government considers the entire group of protesters to be responsible.”

The admission by the juror of googling jury nullification in this current trial comes after several major developments involving all the related cases, which are frequently referred to as the J20 cases.  On May 23, 2018, Chief Judge Robert Morin ruled “that the US Attorney had illegally withheld evidence from protester defendants.”  In what constitutes a Brady violation, the judge agreed with the defense that the prosecution had withheld potentially exculpatory evidence, specifically the fact that a highly questionable video created by Project Veritas and used as evidence against all the accused protesters was heavily edited.

The prosecution had previously declared that there was only very limited editing to hide the identity of the person filming the video and the identity of an undercover officer attending the meeting the video filmed.  However, it was later revealed that there was significant editing to the video, with several important parts having been removed.

According to a motion for sanctions and dismissal filed by the defense in a related trial scheduled to begin June 4, 2018, a portion of video that was edited out actually showed an undercover officer stating, “I was talking with one of the organizers from the IWW [Industrial Workers of the World] and I don’t think they know anything about any of the upper echelon stuff.”  The defense argues the following in that motion:

“This is exculpatory evidence to the defense. The government plans to argue that Mr. Petrohilos and everyone else at that meeting were intending to plan a violent protest. What better exculpatory evidence for the Defense than the words from the person sent to capture a nefarious meeting stating right after the meeting, ‘I don’t think they know anything’. This evidence is clearly exculpatory and but for the Court compelling its production, Defense would have never received it.”

Such Brady violations could arguably be considered cause for a mistrial for these cases but Judge Knowles has opted not to do so in this trial.  Numerous other cases have been dismissed and felony charges against some defendants have been dropped after Judge Morin’s ruling.

On May 31, 2018, Chief Judge Morin also ruled “that the US Attorney had misled him by not admitting the existence of 69 additional pieces of evidence provided by the far-right “entrapment” group Project Veritas” according to Unicorn Riot, an independent website that has covered these cases extensively.

And then came the admission of the bathroom graffiti inspired google search the day before the case went into jury deliberation.  Neither the defense or the prosecution protested this development and the judge proceeded with the scheduled deliberation.  Jury deliberation is expected to continue on Monday, June 4, 2018.

These trials present an interesting opportunity to exercise the right of jury nullification.  As Ryan J. Reilly, Huffington Post senior justice reporter, tweeted on May 31, 2018: “Jury nullification would be particularly powerful in this trial, as government alleges that three of the defendants engaged in some form of destruction. Unlike first case, jurors might want to convict on misdemeanors but not make them felons or expose them to lengthy sentences.”

This is a good reminder that jury nullification has been used in the past to acquit people charged for protest and dissent.  I wrote back in 2016 that “in today’s highly charged climate of political activism against war, police brutality, etcetera, combined with the prevalence of mandatory minimum sentences and increasingly over-reaching laws, the importance of knowing and understanding the right of US jurors to practice jury nullification cannot be understated.  It is critical that US citizens remember that the United States was founded on the principle of government that serves the people. A jury of peers, fully apprised of their rights and responsibilities as jurors, is one of the greatest protections of that principle.”

The importance of these cases should not be ignored.  As I wrote on December 8, 2017, regarding the first J20 trial, “this idea of collective liability is what makes this trial so important, and all Americans should be paying attention.  The mere act of charging so many, with the possibility of such severe punishment, threatens to stifle legitimate protest and first amendment activity.  If exercising one’s right to peacefully protest comes with the risk of felony charges for the criminal behavior of others, many will opt to stay home.”

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Picture courtesy of Pixabay.

Meanwhile, In Yemen…

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Katie Aguilera

It is being reported that at least 33 people have been killed in Yemen as the result of Saudi-led coalition strikes that hit a wedding on Sunday, April 22, 2018.  This comes just days after 20 civilians were killed when the vehicle they were traveling in was hit by another Saudi-led coalition airstrike.

But that’s okay, it wasn’t chemical-laden weapons that killed these civilians.  These were weapons likely sold to the Saudis by the US and the UK.  So don’t worry about it when Reuters reports:

“The head of Al Jumhouri hospital in Hajjah told Reuters by telephone that the hospital had received 40 bodies, most of them torn to pieces, and that 46 people had been injured, including 30 children, in air strikes that hit a wedding gathering.”

Or this:

“The attack hit a car transporting 20 passengers south of Taiz province, locals told Reuters. Six bodies had been identified but the rest were charred beyond recognition, they added.”

Let’s just continue to allow the US and UK to sell Saudi Arabia weapons.  Let’s continue to refuel their warplanes so they can keep dropping those bombs.  I mean, just think of the profits.  And, let’s continue to help the Saudi-led coalition select its targets because clearly that’s working.

Don’t worry that the United Nations Secretary General Antonio Guterras has stated that Yemen is the world’s worst humanitarian crisis.  “As the conflict enters its fourth year, more than 22 million people—three quarters of the population—need humanitarian aid and protection.”  Don’t worry about the starvation, the cholera and diarrhea, the six children under the age of five that die from preventable causes every hour.  Just don’t pay any attention at all to what Gutteras has to say.

“Civilians have been facing indiscriminate attacks, bombing, snipers, unexploded ordnance, cross-fire, kidnapping, rape and arbitrary detention.”

But that’s okay.  It’s our ally committing many of these atrocities after all.  So, don’t worry about it.

Image courtesy of pixabay.com

 

Defense files motion requesting the exclusion of expert reports and testimony in Astarita case

Katie Aguilera

Lawyers for FBI agent W. Joseph Astarita have filed a motion to exclude the expert reports and testimony of several witnesses for the prosecution in Astarita’s case.  Astarita is accused of firing two shots at Robert ‘LaVoy’ Finicum on January 26, 2016 and subsequently lying about it.   The two shots did not hit Finicum, but one struck the roof of Finicum’s truck.

The shooting occurred at a road block set up to stop and arrest leaders of the occupation of the Malheur National Wildlife Refuge as they traveled along Highway 395 to John Day, Oregon.  Finicum was shot and killed by Oregon State Police (OSP) officers at the road block after exiting his vehicle and appearing to reach for his pocket.  An investigation of the shooting concluded there were two shots fired during the stop that were unaccounted for.

The prosecution’s case against Astarita relies in large part on the 3D reconstructions and diagrams created by several expert witnesses that concluded only Astarita was in position to fire the two shots that are unaccounted for.

In the defense motion, filed April 4, 2018, it is argued, “because the government has no photographic, video, ballistic, or eyewitness proof that Special Agent Astarita fired his weapon, this assumption [of his firing the two shots] rests entirely on the proposed testimony of the so-called experts.”

The reason no such video exists is because the FBI Hostage Rescue Team requested the OSP officers not wear body cameras during the road block.  OSP officers normally wear body cameras when deployed.  Additionally, the shell casings from the two shots, as well as casings from some of the shots fired by OSP officers, were missing from the scene.

The defense goes on to question the accuracy of the experts’ conclusions, the expertise of the witnesses, and the methods used in their investigations.  It states, “the Court cannot allow experts to present conclusions on such important issues in a criminal trial without ample assurances of reliability.  The government and its purported experts have failed to provide such assurances here…”

Astarita has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice.  A hearing to determine what experts’ testimony will be allowed in the trial is scheduled for May 21, 2018.

Prosecutors have filed a motion requesting judge to reconsider decision to dismiss with prejudice the charges in Bundy case

Katie Aguilera

On February 7, 2018, federal prosecutors filed a motion requesting that the Court reconsider its orders to dismiss with prejudice the superseding indictment against Cliven, Ryan, and Ammon Bundy, and Ryan Payne.

According to the 29-page motion, “the Court erred when it dismissed the indictment with prejudice on the ground that the Government failed to disclose information that could be used only to support non-cognizable and unsupportable defenses, or arguably rebut three alleged overt acts.”  Additionally, it argues, “to the extent the Court’s dismissal with prejudice is predicated on the materiality of the late-disclosed evidence to defendant’s theories of ‘self-defense, provocation, and intimidation,’ it is in error.  Because these theories are not cognizable on the undisputed facts, they cannot form the basis of a Brady violation.”

The prosecution suggests that rather than dismissing all charges, dismissing the counts related to the Court’s interpretation of Brady violations would be a less drastic remedy.  They argue that the dismissal with prejudice “has major ramifications for all public lands law enforcement officers,” and would “encourage the defendants, their supporters, and the public to disrespect the law and the lawful orders of the courts.”

The case against the Bundys and Ryan Payne ended in a mistrial December 20, 2017, and Judge Gloria Navarro dismissed the case with prejudice on January 8, 2018.

In a separate filing, the prosecution asked to dismiss with prejudice all counts in the superseding indictment against the four remaining defendants facing trial for the April, 2014 Nevada standoff.  Those four are Dave and Mel Bundy, Joseph O’Shaughnessy, and Jason Woods.

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FBI requested no body cameras the night Robert ‘Lavoy’ Finicum was shot and killed

Katie Aguilera

On January 26, 2016, Oregon State Police SWAT and the FBI Hostage Rescue Team (HRT) deployed together for the planned arrest of leaders of the occupation of the Malheur National Wildlife Refuge.  The plan called for an initial traffic stop on Oregon highway 395, with a road block farther down the highway in case either of the two vehicles the leaders were traveling in did not comply at the initial stop.

The driver of the vehicle Ammon Bundy was riding in complied at the initial stop and all occupants were taken into custody.  Robert Lavoy Finicum, who was driving the other vehicle, initially stopped, then, after Ryan Payne got out of the truck, took off towards the road block.  When he reached the road block, Finicum crashed his truck into the snow bank to avoid it.  After he exited his vehicle, Finicum was shot three times by OSP officers.

There have long been rumors that police and FBI involved in the shooting death of Finicum were ordered to turn off dash and body cameras.  It has now been confirmed that these rumors have some basis in fact.

In the investigation into the shooting death of Finicum, investigators determined that there were two shots fired that were unaccounted for.  FBI HRT operator W. Joseph Astarita has since been charged with lying about firing his rifle twice at Finicum at the road block.  Astarita has requested the charges be dismissed.

According to court documents filed February 2, 2018 by the prosecution in response to W. Joseph Astarita’s motion to dismiss the charges against him, Oregon State Police (OSP) officers, at the request of the FBI, did not wear body cameras on January 26, 2016 during the attempt to arrest occupation leaders.

A footnote in the 32-page response states:

“OSP SWAT troopers are ordinarily required to wear body cameras while deployed.  However, they did not wear the cameras while deployed with HRT–at HRT’s request.”

After the two shots that were unaccounted for were discovered, and it was also discovered that shell casings from those two shots as well as some of the shots fired by OSP officers were missing, a new investigation of the FBI HRT operators involved was opened.  The FBI operators were interviewed for a second time by OSP detectives, as described by the prosecution’s response to Astarita’s dismissal motion.

According to the document, “on February 6, 2016, two OSP detectives re-interviewed defendant, [Astarita], B.M., [Astarita’s immediate supervisor] and the HRT operative who was nearly struck by Finicum’s truck at the roadblock.  By then, the detectives knew that there were unaccounted-for shots and missing shell casings.  The HRT operators knew it as well. The HRT operators set conditions for the interview.  They were only willing to be interviewed if:  1) they were interviewed as a group, not individually; 2) the interview was not recorded; and 3) their lawyer could be present by speakerphone.  In addition, they would not answer any questions previously asked without being able to reference statements from prior interviews.” (Emphasis mine).

The response also argues that though Astarita has claimed he didn’t speak at this second interview, the OSP detectives have stated that he did.  The document states, “he spoke less than others who were present, and considerably less than he did during the first interview.  He did nothing to correct statements made on his behalf…These sorts of factual disagreements can only be resolved at trial, not in a pretrial motion to dismiss.”

It is inexplicable that the FBI would request that no body cameras be used during the arrest attempt, and it is also odd that OSP agreed to the request.  This only serves to raise suspicion as to the intentions of the officers involved.  The reasons behind this decision need to be made clear.

That a member of any law enforcement agency would lie about, and actively work to cover up, shots fired during an arrest attempt harms the credibility of, and trust in, all law enforcement.  Although it comes as no surprise that the FBI would attempt to cover up the shooting as they have a track record of such activity, when something like this happens, they must be held accountable.

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