This Report summarizes opinions issued on June 13, 2022 (Part I).
Opinion: Denezpi v. United States, 20-7622
Denezpi v. United States, 20-7622. In a 6-3 decision, the Court held that the Double Jeopardy Clause does not bar successive prosecutions of offenses arising from a single act if those offenses are defined by separate sovereigns, even if a single sovereign prosecutes them. Sixteen federally recognized tribes are served by the Courts of Indian Offenses, sometimes known as “CFR courts” because they are established by the Bureau of Indian Affairs through the Code of Federal Regulations. Federal regulations list offenses that may be enforced in those courts, and tribes may enact ordinances that are enforceable as well. Merle Denezpi, a member of the Navajo Nation, was charged with assault and battery in violation of the Ute Mountain Ute Code, as well as false imprisonment and terroristic threats in violation of federal regulations. Denezpi pleaded guilty to assault and battery in the Court of Indian Offenses, and the prosecutor dismissed the other two charges. He was sentenced to time served, 140 days’ imprisonment. Six months later, based on the same incident, a federal grand jury indicted Denezpi on one count of aggravated sexual abuse in Indian country, an offense governed by the Major Crimes Act. Denezpi moved to dismiss the indictment, claiming the Double Jeopardy Clause barred the second prosecution. The district court denied the motion to dismiss, a jury convicted him, and the court sentenced him to 30 years’ imprisonment. The Tenth Circuit affirmed, rejecting Denezpi’s double jeopardy argument. The Supreme Court affirmed in an opinion by Justice Barrett.
The Double Jeopardy Clause of the Fifth Amendment provides, “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” Relying on Gamble v. United States, 139 S. Ct. 1960 (2019), the Court noted that the Clause focuses on whether successive prosecutions are for the same “offence,” not the same “conduct or actions.” An offense is “defined by law,” and a law is “defined by the sovereign that makes it.” “Because the sovereign source of a law is an inherent and distinctive feature of the law itself, an offense defined by one sovereign is necessarily a different offense from that of another sovereign.” Offenses by different sovereigns may be separately prosecuted even if they have identical elements and could not be separately prosecuted by a single sovereign. Under United States v. Wheeler, 435 U.S. 313 (1978), this dual-sovereignty principle applies to Indian tribes because when a tribe enacts criminal laws it does so pursuant to its “retained sovereignty and not as an arm of the Federal Government.” Here, Denezpi’s single act violated both the Ute Mountain Ute Code and the United States Code. “The two laws, defined by separate sovereigns, therefore proscribe separate offenses.”
Denezpi argued that the dual-sovereignty doctrine is concerned not only with who defines the offense, but also who prosecutes it. He argued that he was prosecuted twice by the United States because his first prosecution occurred in a CFR court under the control of the Bureau of Indian Affairs. The Court declined to decide whether prosecutors in CFR courts exercise tribal or federal authority, because the Double Jeopardy Clause “does not prohibit successive prosecutions by the same sovereign. It prohibits successive prosecutions ‘for the same offence.’” Even assuming that the federal government prosecuted his tribal offense, the Clause did not bar it from prosecuting him under the Major Crimes Act as well. The Court rejected the argument that the dual-sovereignty doctrine is an “exception” to the Clause, because dual sovereignty is an aspect of the “offence.” Treating the prosecutor’s identity as part of the offense is “as odd as it sounds” because an offense “is committed before it is prosecuted.” The Court refused to hold that a single act “constitutes two separate offenses at the time of commission (because the act violates two different sovereigns’ laws) but that those offenses later become the same offense if a single sovereign prosecutes both.” The cases on which Denezpi relied did not involve “the unusual situation of a single sovereign successively prosecuting its own law and that of a different sovereign.”
The Court acknowledged that the federal offenses enforceable in CFR courts exclude felonies under the Major Crimes Act in order to avoid the possibility that a prosecution in CFR court might preclude the prosecution of a more serious offense. But federal regulatory crimes are defined by the federal government rather than an Indian tribe, so successive prosecutions for a federal regulatory crime and a federal statutory crime “present a different double jeopardy question from the one presented here.” The Court also rejected the argument that permitting successive prosecutions does not advance sovereigns’ independent interests. The Court explained that those interests are furthered when a tribal ordinance is enforced, regardless of who enforces it. “Purposes aside, the doctrine follows from the Clause’s text, which controls.” Finally, Denezpi argued that sovereigns might assume the authority to enforce other sovereigns’ criminal laws. The Court concluded that “if there is a constitutional barrier to such cross-enforcement, it does not derive from the Double Jeopardy Clause.”
Justice Gorsuch dissented, joined in part by Justices Sotomayor and Kagan. The dissent stated that prosecution under two separate legal codes violates the Double Jeopardy Clause “if the two prosecuting entities derive their ultimate authority from the same sovereign source” or if one sovereign uses another sovereign’s laws as a cover for its own successive prosecution. The dissent pointed out that no authority “bless[es] successive prosecutions by a single sovereign using its own and another’s laws.” With this in mind, the dissent found that Denezpi’s second prosecution violated double jeopardy. Justice Gorsuch emphasized the role of the federal government in the initial prosecution: The Court of Indian Offenses is part of the federal government, with magistrates and prosecutors employed by the Department of the Interior. Historically, tribal members often regarded the courts as “foreign” and “hated” institutions. To the extent federal regulations assimilate tribal crimes, they do so only with approval from the Assistant Secretary of Indian Affairs. An agent of the Department of the Interior swore out a criminal complaint on behalf of the “United States of America, Plaintiff.” Two of the three original charges were defined by federal regulations, and the third was approved by federal officials. Finally, federal regulations governed Denezpi’s maximum punishment. Under these circumstances, the dissent concluded that Denezpi had been prosecuted by the federal government under federal law.
Writing for himself, Justice Gorsuch noted that the Court of Indian Offenses was built on a “shaky legal foundation,” although Denezpi did not challenge that court’s authority. Referring to his dissent in Gamble, Justice Gorsuch opined that the dual-sovereignty doctrine has “no place in our constitutional order.” Even accepting the doctrine on its terms, however, Puerto Rico v. Sanchez-Valle, 579 U.S. 59 (2016), stated that successive prosecutions can only be brought if (1) the prosecutions are under the laws of two sovereigns, and (2) the “prosecuting entities” derive their power from independent sources. Justice Gorsuch argued that unlike Wheeler, which involved a violation of the Navajo Tribal Code, the tribal offense here was really a federal regulation that assimilated tribal law. To the extent Denezpi agreed that his conviction was for a tribal rather than a federal offense, Justice Gorsuch stated that future litigants and courts should consider the Court’s decision a “one-off, case-specific ruling.”