United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendant Christopher Lavan
Williams' Motion to Dismiss the Indictment. (Doc. # 19).
In this case, the United States has charged Williams with
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). (Doc. # 1). Before he was indicted
in this case, Williams was previously convicted in an Alabama
state court of possessing the same firearm under
Alabama's felon-in-possession statute, Ala. Code. §
13A-11-72(a). (Doc. # 19-1 at 4-6). Williams now seeks
dismissal of this prosecution because he claims it violates
the Fifth Amendment's Double Jeopardy Clause, which
guarantees that “No person shall . . . be twice put in
jeopardy” “for the same offence.” U.S.
Const. amend. V. Though there are strong arguments that the
Double Jeopardy Clause as originally understood would bar
this prosecution, Williams' argument is foreclosed by
Supreme Court precedent. Unless and until the Supreme Court
overrules that precedent, the United States is free to
proceed with this prosecution.
Factual and Procedural Background
Lavan Williams had several run-ins with the law prior to
possessing the firearm that is the subject of this
prosecution. According to the indictment in this case, the
State of Alabama convicted Williams of second degree burglary
in 2016, receipt of stolen property in the second degree in
2013, and first degree robbery in 2009. (Doc. # 1). Each of
these offenses is a crime punishable by imprisonment for a
term exceeding one year. (Id.).
December 1, 2017, Alabama authorities arrested Williams and
charged him with unlawfully possessing a firearm in violation
of Alabama's felon-in-possession statute, Ala. Code.
§ 13A-11-72(a). The arrest warrant and criminal
information charged Williams with possessing a
“Taur[us] 44 Special” pistol after having been
previously convicted of first degree robbery, which is a
“crime of violence” under Alabama's
felon-in-possession statute. (Doc. # 19-1 at 1, 6). Williams
pleaded guilty to the charge on April 17, 2018 and received a
fifteen-year sentence (two years of incarceration to be
served immediately, split with thirteen years of probation).
(Id. at 4-5). Shortly thereafter, the Alabama
Department of Corrections released Williams pursuant to the
community corrections program. (Doc. # 22 at 2). Several
weeks later, while on release under the community corrections
program, Williams was arrested on a federal warrant for being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). (Id.). Williams' federal
indictment and arrest were based on the same December 1, 2017
conduct involving a “Taurus .44 caliber revolver”
that provided the basis for Williams' state conviction.
(Doc. # 1).
Fifth Amendment's Double Jeopardy Clause provides,
“No person shall . . . be twice put in jeopardy”
“for the same offence.” U.S. Const. amend. V.
Though the Clause's text apparently imposes an absolute
prohibition on successive prosecutions for the same crime,
the Supreme Court has read an important exception into the
Double Jeopardy Clause. The same government may not twice
prosecute an individual for the same offense, but two
separate sovereigns -- for instance, a state government and
the federal government -- may do so. See United
States v. Lanza, 260 U.S. 377, 382, 385 (1922) (holding
that a prior state conviction for making, transporting, and
selling liquor did not bar a subsequent federal prosecution
based on the same acts). The “separate
sovereigns” or “dual sovereignty” doctrine,
as it has come to be known, is controlling here. Under that
doctrine, “[w]hen a defendant in a single act violates
the ‘peace and dignity' of two sovereigns by
breaking the laws of each, he has committed two distinct
‘offences.'” Heath v. Alabama, 474
U.S. 82, 88 (1985) (quoting Lanza, 260 U.S. at 382).
Because Alabama and the United States are separate
sovereigns, Williams' single act (possessing a firearm on
December 1, 2017 while having a prior felony conviction) is
“an offense against the peace and dignity of
both” sovereigns and thus punishable “by
each.” Lanza, 260 U.S. at 382. Unless and
until the Supreme Court overrules Lanza and related
precedents, the United States is free to proceed with this
Reconsidering the Separate Sovereigns Exception to the Double
may well be good reasons for overruling the “separate
sovereigns” exception to the Double Jeopardy Clause.
Recently, the Supreme Court agreed to hear a case asking the
Court to do just that. See Gamble v. United States,
138 S.Ct. 2707 (2018) (granting petition for writ of
certiorari). As explained below, the court agrees with the
petitioner in Gamble: the Double Jeopardy Clause, as
originally understood, bars successive prosecutions for the
same offense, even when those prosecutions are brought by
separate sovereigns. The Clause's text and the common-law
backdrop against which it was enacted all contravene the
separate sovereigns doctrine. Moreover, the separate
sovereigns exception conflicts with core principles of
federalism-including the seemingly “counterintuitive
insight” that “freedom is enhanced by
the creation of two governments, not one.” Bond v.
United States, 564 U.S. 211, 220-21 (2011) (emphasis
added). As one of the Nation's “inferior Courts,
” this court is bound by the Supreme Court's
decisions, including the separate sovereigns exception to the
Double Jeopardy Clause. U.S. Const. art. III, § 1. But,
soon, it will be for the Supreme Court to assess the
historical aberration that is the separate sovereigns
doctrine and to determine if it is time to return to the
original meaning of the Double Jeopardy Clause.
The Text of the Double Jeopardy Clause Is Absolute
Double Jeopardy Clause's phrasing is absolute. It
provides unambiguously that no person shall be “twice
put in jeopardy” “for the same offence.”
U.S. Const. amend. V. The Clause makes no exceptions based on
the identity of the prosecutor: if two offenses are
“the same, ” the Clause forbids successive
prosecutions, regardless of whether the prosecutions are
brought by the same government or different ones.
Supreme Court has long recognized that two crimes are the
“same offence” if their elements are the same.
That is, two separate statutory provisions create distinct
offenses only if “each provision requires proof of a
fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). This
common-sense understanding of the words “same
offence” is the one the text of the Double Jeopardy
Clause most naturally reflects. Any natural reading of
“same offence” makes it difficult (if not
impossible) to understand those words to exclude crimes that
have the exact same elements but are prosecuted by separate
question, the Clause could have been written to permit
subsequent prosecutions for the same offense by separate
sovereigns. In fact, one member of the first Congress
proposed language that would have done just that. The
original draft of the Double Jeopardy Clause prohibited
“more than one trial or one punishment for the same
offence.” 1 Annals of Cong. 753 (1789). Yet,
Representative Partridge proposed inserting, after
“same offence, ” the words “by any law of
the United States.” Id. Partridge's
proposal would have permitted the federal government to
prosecute a defendant previously convicted of the same
offense under state law or any law other than a “law of
the United States.” Id. But the Partridge
amendment was rejected and a Double Jeopardy Clause written
in absolute terms was adopted instead. Congress's
rejection of the Partridge amendment confirms what the
Clause's plain text suggests: “same offence”
means crimes with the same elements, regardless of whether
those crimes are prosecuted by the same sovereign.
The Original Understanding of the Double Jeopardy Clause Is
Inconsistent with ...