The U.S. Supreme Court recently cited Restatement of the Law Fourth, The Foreign Relations Law of the United States § 481 and Restatement of the Law Second, Conflict of Laws § 98 in affirming the longstanding dual-sovereignty doctrine, which provides that a crime under one sovereign’s laws is not the “same offense” as a crime under the laws of another sovereign for purposes of the Double Jeopardy Clause of the Fifth Amendment.

In Gamble v. United States, No. 17-646 (June 17, 2019), the defendant was charged with possessing a firearm as a felon in violation of an Alabama statute, Ala. Code § 13A-11-72(a) (2015), following a traffic stop in which a local police officer discovered a handgun in the defendant’s car. After the defendant pleaded guilty to the state offense, federal prosecutors indicted him in connection with the same instance of possession under the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1). The U.S. District Court for the Southern District of Alabama denied the defendant’s motion to dismiss the federal prosecution, in which he argued that “[t]he federal indictment was for the ‘same offence’ as the one at issue in his state conviction and thus exposed him to double jeopardy,” and the U.S. Court of Appeals for the Eleventh Circuit affirmed under the dual-sovereignty doctrine.

The U.S. Supreme Court affirmed. Associate Justice Samuel A. Alito, writing for the majority, relied on the text of the Double Jeopardy Clause, historical evidence, and 170 years of precedent in holding that “an ‘offence’ [was] defined by a law, and each law [was] defined by a sovereign”; thus, “where there [were] two sovereigns, there [were] two laws, and two ‘offences.’” The Court rejected the defendant’s argument that “a final judgment was ‘conclusive Evidence’ ‘against all the World’ of the factual determinations underlying the judgment,” noting that the “endorsement of the preclusive effect of a foreign judgment in civil litigation (which even today [was] not uniformly accepted in this country) provide[d] no direct support for [the defendant] since his prior judgment was one of conviction, not acquittal.” The Court noted that, although Restatement of the Law Fourth, The Foreign Relations Law of the United States § 481 and Restatement of the Law Second, Conflict of Laws § 98 provided that foreign judgments generally had preclusive effect in federal and state courts in the United States, several jurisdictions had concluded that recognition of foreign judgments was not required but was a matter of comity.

In a dissenting opinion, Associate Justice Neil M. Gorsuch argued that a second prosecution for the same underlying offense was prohibited even if brought by a separate government. Justice Gorsuch cited the commentary to § 15 of the ALI’s Administration of the Criminal Law (Prop. Final Draft, March 18, 1935), which listed cases dealing with the preclusive effect of foreign judgments, including two English cases from the 17th and 18th centuries that concluded that “if a person [was] acquitted in a court of competent jurisdiction for an offense in another country he [could] not be tried for the same offense again in an English court.”

Read the full opinion here.

Andrea K. Wooster

The American Law Institute


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