Denezpi v. United States (20-7622)
argument 20-7622Denezpi v. United States
Supreme Court of the United States
1h 5m
8 speakers
8 chapters
transcribed 6 days ago
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What is the Double Jeopardy Clause’s dual‑sovereignty test and how does it apply to tribal and federal offenses?
We'll hear argument next in case twenty seventy six twenty two, Denez P versus United
States. Mr Kimberly. Thank you, Mr Chief Justice, and may it please the court. The Double Jeopardy Clause implicates two distinct exercises of sovereign authority. First, the authority to say what an offence is. and second, the authority to put an individual in jeopardy for committing an offence. This Court has consistently assumed the importance to the dual sovereignty doctrine of both expressions of sovereign power. The analysis thus asks not only whether the two law giving entities draw their authority from separate sovereigns, but also whether the two law enforcing entities do so. The government disagrees. It says that the separateness of the offence defining entities is all that matters. But that position would invite the precise abuses that the Double Jeopardy Clause was intended to prevent.
and the CFR courts themselves provide the evidence. Assault, for an example, is an offence under both tribal law and the BIA's regulatory criminal code. According to the government, if petitioner had gone to trial rather than taking a plea on the tribal offense and he had been acquitted The very same prosecutor would have been free. The very next day to bring a successive prosecution for a substantively identical offence, this time having honed his case and refined his proof based on the lessons learned in the first prosecution. That is not an outcome that the framers of the Double Jeopardy Clause would have thought tolerable. In arguing otherwise, the government focuses on a single word, a fence, which it takes entirely in isolation and to which it applies rigid dictionary definitions.
But the Bill of Rights prevents not only transgressions of the amendment's literal terms, but also governmental efforts to circumvent their protections. Blockberger itself embodies this anti circumvention principle. It holds that technically different defenses codified in different code sections comprising different elements nonetheless may constitute Conceptually the same offence for double jeopardy purposes, when, for example, one is a lesser included of the other. And our position is that the same Block Burger rule ought to apply any time a single sovereign undertakes successive prosecutions, regardless whether separate sovereigns have defined the respective offences. And I welcome the court's questions.
Uh Mr Kimberly, uh just to just so that I understand what you mean by the we have to take the prosecution, the source of the prosecution into account. Let's say prior to uh trial. the tribe uh charges uh uh petitioner here. uh and on day one, on day two. uh the federal government charges. petitioner. are those on two separate offences. with which he's being charged.
These are both charges in the CFR court?
One in CFR court, one in federal district court.
I think those are not the same offence, Your Honor, because it would be the tribe bringing the charge. I think what distinguishes this case
No no that's not what I'm saying. The The the tribe ch uh there's a d there's a charge under tribal law. That's charge on for the same activity. Just what we're talking about here. But before trial. the in the federal prosecutor charges under federal law. just as you have here. but there is no trial yet. Are those two separate offences?
I if I am understanding your Honor's hypothetical correctly, it is a tribe charging one offense, it is the Federal Government charging uh a federal offense
we have here.
It sounds to me like those are separate offenses to which the dual sovereignty doctrine uh w would apply. Okay.
Now what undoes that if, let's say, after that the uh you reach a uh Uh You're tried in the CFR court. And uh could we have what we have, the outcome we have here. then you have a trial in federal court. What changes the fact that you have two separate charts two separate offenses?
Well I I think th th so there are two ways of answering this. I think the first way of answering this is to say that when the prosecuting entity the first time is a federal instrumentality
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Chapters
8 chapters
1
What is the Double Jeopardy Clause’s dual‑sovereignty test and how does it apply to tribal and federal offenses?
0:01–8:34
2
How do the parties argue whether the tribal charge and the federal charge are separate offenses under Blockburger?
8:34–18:13
3
What is the Barcas (or “Barcus”) exception and why does the government claim it might bar double jeopardy here?
18:13–25:42
4
How does the identity and authority of the CFR‑court prosecutor affect the double‑jeopardy analysis?
25:42–34:41
5
Why do the petitioners propose giving tribes control over prosecutors or funding their own courts?
34:41–42:27
6
What practical concerns arise from the differing sentencing limits in tribal versus federal prosecutions?
42:27–49:11
7
How do the Justices’ questions about jurisdiction, racial classifications, and Article I courts shape the debate?
49:11–56:43
8
What is the petitioners’ final position on respecting tribal sovereignty while avoiding double jeopardy?
56:43–1:05:31