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Moore v. United States: Avoiding the Tough Questions

Introduction

Charles and Kathleen Moore owed less than $15,000 due to the Mandatory Repatriation Tax (“MRT”),1 1.I.R.C. § 965.Show More a tax enacted as part of the 2017 Tax Cuts and Jobs Act. While the economic consequences of the tax were relatively inconsequential for the Moores, they hoped to convince the Supreme Court to make highly consequential changes to tax law more generally by challenging the MRT.2 2.See Brief for Petitioners at 12–13, Moore v. United States, 144 S. Ct. 1680 (2024) (No. 22-800).Show More The challenge put large portions of the Internal Revenue Code—provisions providing trillions in tax revenue—at risk.3 3.See infra notes 17, 91–92.Show More The case was also highly relevant to the constitutionality of wealth taxes, a topic of rising interest among scholars and politicians.4 4.See, e.g., Thomas Kaplan, Bernie Sanders Proposes a Wealth Tax: “I Don’t Think That Billionaires Should Exist,” N.Y. Times (July 16, 2020), https://www.nytimes.com/2019/09/2‌4/us/politics/bernie-sanders-wealth-tax.html [https://perma.cc/SRB9-MNES]; Jonathan Curry, UC Berkeley Economists Chosen as Tax Notes Federal’s Persons of the Year, Tax Notes (Dec. 16, 2019), https://www.taxnotes.com/special-reports/tax-policy/uc-berkeley-eco‌nomists-chosen-tax-notes-federals-persons-year/2019/12/13/2b617 [https://perma.cc/P622-Y‌W95].Show More In Moore v. United States,5 5.144 S. Ct. 1680 (2024).Show More the Court upheld the MRT and related tax provisions while strategically trying to avoid providing explicit guidance on other hot-button issues.

The basic facts of the case are simple. The Moores bought 13% of an Indian company, KisanKraft, in 2006 for $40,000.6 6.Id. at 1686.Show More While profitable, KisanKraft never distributed any income to the Moores or any American shareholders.7 7.Id.Show More Even so, the MRT subjected the Moores to a tax on 13% of KisanKraft’s accumulated income from 2006 to 2017, resulting in the Moores owing $14,729 in taxes.8 8.Id.Show More They challenged the constitutionality of the MRT, but the district court dismissed the challenge, and the U.S. Court of Appeals for the Ninth Circuit affirmed.9 9.Id.Show More

The first Part of this Comment provides high-level background on the MRT,10 10.The MRT is an “extraordinarily complicated” tax, so a detailed explanation is outside the scope of this Comment. Sean P. McElroy, The Mandatory Repatriation Tax Is Unconstitutional, 36 Yale J. on Regul. Bull. 69, 76 (2018).Show More general tax principles, and taxation provisions in the Constitution. The second Part outlines the various opinions in Moore. Finally, the third Part takes a critical look at the opinions and argues that the Court’s decision is broader than it appears. Further, it argues that in the Court’s effort to defend long-standing precedent against the Moores’ challenge, the Court failed to adequately justify its decision. Additionally, the third Part provides thoughts on what Moore means for the constitutionality of a wealth tax.

  1.  I.R.C. § 965. ↑
  2.  See Brief for Petitioners at 12–13, Moore v. United States, 144 S. Ct. 1680 (2024) (No. 22-800). ↑
  3.  See infra notes 17, 91–92. ↑
  4.  See, e.g., Thomas Kaplan, Bernie Sanders Proposes a Wealth Tax: “I Don’t Think That Billionaires Should Exist,” N.Y. Times (July 16, 2020), https://www.nytimes.com/2019/09/2‌4/us/politics/bernie-sanders-wealth-tax.html [https://perma.cc/SRB9-MNES]; Jonathan Curry, UC Berkeley Economists Chosen as Tax Notes Federal’s Persons of the Year, Tax Notes (Dec. 16, 2019), https://www.taxnotes.com/special-reports/tax-policy/uc-berkeley-eco‌nomists-chosen-tax-notes-federals-persons-year/2019/12/13/2b617 [https://perma.cc/P622-Y‌W95]. ↑
  5.  144 S. Ct. 1680 (2024). ↑
  6.  Id. at 1686. ↑
  7.  Id. ↑
  8.  Id. ↑
  9.  Id. ↑

  10.  The MRT is an “extraordinarily complicated” tax, so a detailed explanation is outside the scope of this Comment. Sean P. McElroy, The Mandatory Repatriation Tax Is Unconstitutional, 36 Yale J. on Regul. Bull. 69, 76 (2018). ↑

Modus Operandi and Mindreading in Diaz v. United States

Introduction

Witnesses with the requisite knowledge or expertise often present, as an opinion, their answer to a case’s “ultimate issue.” They may opine, say, that a product was unreasonably dangerous in a product liability suit, or that a patent was infringed in a patent infringement suit, or that damages of a certain amount are appropriate, even if the jury is tasked with answering that same question.1 1.6 Michael H. Graham, Handbook of Federal Evidence § 704:1 (9th ed. 2023). There is no comprehensive list of all possible ultimate issues. See 29 Charles Alan Wright & Victor Gold, Federal Practice and Procedure § 6284, at 469 (2d ed. 2016).Show More This principle is unambiguously announced in Rule 704(a) of the Federal Rules of Evidence. It reads: “An opinion is not objectionable just because it embraces an ultimate issue.”2 2.Fed. R. Evid. 704(a) (emphasis added).Show More

The Rules feature only one caveat, articulated in Rule 704(b): “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”3 3.Fed. R. Evid. 704(b).Show More In other words, if the contents of a criminal defendant’s mind are an ultimate issue, no expert may share an opinion on that topic. “Those matters are for the trier of fact alone.”4 4.Id.Show More Rule 704(b) recognizes the risk of an expert “intruding” on the jury’s exclusive prerogative to assess a defendant’s mental state.5 5.United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993).Show More

Last Term, in Diaz v. United States,6 6.144 S. Ct. 1727, 1730 (2024).Show More the Supreme Court considered a category of opinion testimony which tiptoes up to that forbidden line. Delilah Diaz was crossing the United States-Mexico border when a border patrol officer found roughly 55 pounds of methamphetamine hidden in two concealed spaces in her car.7 7.Brief for the United States at 6, Diaz, 144 S. Ct. 1727 (No. 23-14).Show More Shortly after arrest, she disclaimed knowledge of the drugs, attributing them to a supposed boyfriend.8 8.Id.Show More Her story was full of implausibilities,9 9.Id. at 6–7.Show More though, and she was charged with knowingly and intentionally importing methamphetamine.10 10.Id. at 8.Show More Still, she proceeded to trial with the defense that she was a “blind mule,” or an unknowing courier of drugs.11 11.See Brief for Petitioner at 4-7, Diaz, 144 S. Ct. 1727 (No. 23-14).Show More Her mental state—that is, whether she knew about the drugs inside her vehicle—was the only live issue for the jury.

At trial, the prosecution called HSI Special Agent Andrew Flood as an expert on drug trafficking operations. Agent Flood carefully avoided testifying directly to Diaz’s mental state. Instead, he testified that “most” drug couriers are aware of the drugs in their presence.12 12.Petition for a Writ of Certiorari at 17, Diaz,144 S. Ct. 1727 (No. 23-14).Show More Put differently, he testified to the typical mental state—indeed, to the mens rea, or guilty mind—of a “class” of persons to which Diaz belonged. The trial court admitted his testimony, unpersuaded by Diaz’s protests that Agent Flood’s testimony was the “functional equivalent” of testimony regarding her mental state.13 13.Id. app. at 31a–33a; Joint Appendix at JA10, Diaz,144 S. Ct. 1727 (No. 23-14).Show More

The U.S. Court of Appeals for the Ninth Circuit affirmed.14 14.United States v. Diaz, No. 21-50238, 2023 WL 314309 (9th Cir. Jan. 19, 2023), aff’d, 144 S. Ct. 1727, 1730 (2024).Show More It held that testimony regarding the infrequency of unknowing drug couriers is admissible, provided that the expert does not express an “‘explicit opinion’ on the defendant’s state of mind.”15 15.Id. at *2 (citation omitted).Show More The Ninth Circuit acknowledged, however, that the Fifth Circuit had reached the opposite conclusion in a line of similar cases.16 16.Id.Show More The Supreme Court granted certiorari to resolve the deepening circuit split.17 17.See Petition for a Writ of Certiorari, supra note 12, at 8–13 (cataloguing the circuit split).Show More

The Supreme Court also affirmed, albeit on slightly different grounds. The majority opinion, written by Justice Thomas,18 18.Diaz, 144 S. Ct. at 1735. Justice Thomas wrote the majority opinion. Id. at 1730. Chief Justice Roberts joined that opinion, as did Justices Alito, Kavanaugh, Barrett, and Jackson. Id. Justice Jackson penned a concurrence. Id. at 1736 (Jackson, J., concurring). And Justice Gorsuch, joined by Justices Sotomayor and Kagan, dissented. Id. at 1738 (Gorsuch, J., dissenting).Show More focused on the meaning of the word “about.”19 19.See Fed. R. Evid. 704(b) (“[A]n expert witness must not state an opinion about whether the defendant did or did not have a mental state . . . .” (emphasis added)).Show More It declined Diaz’s suggestion that the Court adopt the Oxford English Dictionary definition, which lists “concerning” and “in reference to” as equivalent terms.20 20.Brief for Petitioner, supra note 11, at 18.Show More Instead, it opted to interpret the word in its context. It found that “[t]he words surrounding ‘about’ make clear that Rule 704(b) . . . does not preclude testimony ‘about’ mental-state ultimate issues in the abstract.”21 21.Diaz, 144 S. Ct. at 1735.Show More Rule 704(b) only “targets conclusions ‘about whether’ a certain fact is true.”22 22.Id.Show More

Accordingly, the majority laid out a new bright-line rule. Rule 704(b) applies to the “precise topic” of the defendant’s mental state but not testimony that just “concerns or refers to that topic.”23 23.Id.Show More So, expert testimony about the mental state of all members of a class of defendants is impermissible, because, logically speaking, it invariably applies to the precise mental state of any member of that class.24 24.Id. at 1734.Show More Testimony regarding the mental state of most members of a class, by contrast, is permissible, because it “does not necessarily describe [the defendant’s] mental state.”25 25.Id. at 1733–34.Show More Agent Flood’s statements therefore fell outside the Rule’s ambit. Indeed, the at-issue testimony, according to the majority, amounted to nothing more than the assertion that “Diaz was part of a group of persons that may or may not have a particular mental state.”26 26.Id. at 1734.Show More This left the jury to handle the ultimate issue: was Diaz one of the few unknowing drug couriers or not?27 27.Id. at 1735.Show More

The majority’s analysis was concentrated on Rule 704, and a narrow interpretation of it at that. Rule 704, however, does not “set a standard of admissibility.”28 28.3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7:20, at 885 (4th ed. 2013).Show More It “merely removes a formal objection that might otherwise stand in the way.”29 29.Id.Show More As a result, the Court missed two adjacent problems with the at-issue testimony, either of which could have independently rendered it inadmissible.

Part I of this Comment examines the first of those problems: the striking resemblance between Agent Flood’s testimony and inadmissible criminal propensity evidence. In arguably his most problematic statement, Agent Flood effectively introduced crimes committed by persons similarly situated to the defendant. The only relevance of those other acts was a bare (and plainly improper) suggestion that the frequency of others’ past crimes made Diaz’s conduct more likely to be criminal, as well. Part II considers the testimony’s inherent lack of reliability. It argues that the majority intermingled two distinct categories of testimony: a) contextual scientific testimony related to a mental condition; and b) speculative testimony concerning a group of individuals’ inner thoughts. The former can be indispensable to criminal trials, while the latter is unreliable and unprovable by nature. The Court needlessly gave its stamp of approval to the parts of Agent Flood’s testimony which fell unmistakably into the latter category. Finally, Part III suggests an alternative, moderate holding. If the Court had added two caveats to its interpretation of “about”—caveats that addressed quasi-propensity evidence and “mindreading”30 30.Diaz, 144 S. Ct. at 1743 (Gorsuch, J., dissenting).Show More—it could have simultaneously preserved the admissibility of important evidence that bears on mental state and precluded prejudicial testimony like Agent Flood’s. This proposed holding, it argues, is both fairer and more faithful to the Rules.

  1.  6 Michael H. Graham, Handbook of Federal Evidence § 704:1 (9th ed. 2023). There is no comprehensive list of all possible ultimate issues. See 29 Charles Alan Wright & Victor Gold, Federal Practice and Procedure § 6284, at 469 (2d ed. 2016). ↑
  2.  Fed. R. Evid. 704(a) (emphasis added). ↑
  3.  Fed. R. Evid. 704(b). ↑
  4.  Id. ↑
  5.  United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993). ↑
  6.  144 S. Ct. 1727, 1730 (2024). ↑
  7.  Brief for the United States at 6, Diaz, 144 S. Ct. 1727 (No. 23-14). ↑
  8.  Id. ↑
  9.  Id. at 6–7. ↑
  10.  Id. at 8. ↑
  11.  See Brief for Petitioner at 4-7, Diaz, 144 S. Ct. 1727 (No. 23-14). ↑
  12.  Petition for a Writ of Certiorari at 17, Diaz, 144 S. Ct. 1727 (No. 23-14). ↑
  13.  Id. app. at 31a–33a; Joint Appendix at JA10, Diaz, 144 S. Ct. 1727 (No. 23-14). ↑
  14.  United States v. Diaz, No. 21-50238, 2023 WL 314309 (9th Cir. Jan. 19, 2023), aff’d, 144 S. Ct. 1727, 1730 (2024). ↑
  15.  Id. at *2 (citation omitted). ↑
  16.  Id. ↑
  17.  See Petition for a Writ of Certiorari, supra note 12, at 8–13 (cataloguing the circuit split). ↑
  18.  Diaz, 144 S. Ct. at 1735. Justice Thomas wrote the majority opinion. Id. at 1730. Chief Justice Roberts joined that opinion, as did Justices Alito, Kavanaugh, Barrett, and Jackson. Id. Justice Jackson penned a concurrence. Id. at 1736 (Jackson, J., concurring). And Justice Gorsuch, joined by Justices Sotomayor and Kagan, dissented. Id. at 1738 (Gorsuch, J., dissenting). ↑
  19.  See Fed. R. Evid. 704(b) (“[A]n expert witness must not state an opinion about whether the defendant did or did not have a mental state . . . .” (emphasis added)). ↑
  20.  Brief for Petitioner, supra note 11, at 18. ↑
  21.  Diaz, 144 S. Ct. at 1735. ↑
  22.  Id. ↑
  23.  Id. ↑
  24.  Id. at 1734. ↑
  25.  Id. at 1733–34. ↑
  26.  Id. at 1734. ↑
  27.  Id. at 1735. ↑
  28.  3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7:20, at 885 (4th ed. 2013). ↑
  29.  Id. ↑

  30.  Diaz, 144 S. Ct. at 1743 (Gorsuch, J., dissenting). ↑

Sovereigns’ Interests and Double Jeopardy

In the 2019 case of Gamble v. United States, the Supreme Court upheld the dual sovereignty doctrine, reiterating that the Double Jeopardy Clause only bars successive or concurrent prosecutions by the same sovereign. When, therefore, a criminal defendant has violated the laws of two sovereigns by the same act, regardless of how similar those laws may be, no double jeopardy issue arises where both sovereigns prosecute the defendant independently. This Note argues that such an outcome is at odds with the Due Process Clause’s guarantee against double jeopardy and rests upon an excessively rigid formulation of prior case law. The Supreme Court’s double jeopardy jurisprudence actually suggests that the dual sovereignty doctrine should only be applied in instances where each sovereign possesses a distinct interest that they alone can vindicate. This Note advances a primary-purposes test to determine when separate or concurrent prosecutions are appropriate: a second sovereign should only be permitted to prosecute a defendant for the same crime if the primary purpose of that prosecution is to vindicate a sovereign interest that the first sovereign’s prosecution would leave substantially unvindicated. Applying this test would also ease the Gamble Court’s worry that modifying the doctrine could interfere with the balance of domestic and international prosecutions. Because the United States and a foreign sovereign, as completely independent entities, could always decline to treat the exercise of the other’s jurisdiction as exclusive, each sovereign would retain an interest in prosecuting a defendant that the other sovereign could never substantially vindicate.

Introduction

In the 1969 case of Benton v. Maryland, the Supreme Court of the United States held that the Fifth Amendment’s guarantee against double jeopardy, that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb,”1 1.U.S. Const. amend. V.Show More formed a fundamental right that was incorporated by the Fourteenth Amendment’s Due Process Clause against the states.2 2.395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”).Show More In so doing, the Supreme Court reversed its earlier decision in Palko v. Connecticut, which had held that the Double Jeopardy Clause was not incorporated against the states, inasmuch as the protection was not “of the very essence of a scheme of ordered liberty.”3 3.302 U.S. 319, 325 (1937).Show More In spite of Benton, however, the Supreme Court has regularly upheld one glaring exception to the Double Jeopardy Clause: the dual sovereignty doctrine.

Under the dual sovereignty doctrine, a defendant may be prosecuted twice for the same crime if separate sovereigns are involved in bringing each prosecution. Although the circumstances under which two entities constitute separate sovereigns may not be clear-cut as a philosophical matter, for purposes of dual sovereignty, the Supreme Court has made clear that the states and the federal government are considered distinct sovereigns,4 4.See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132–34 (1959) (finding no double jeopardy bar to successive state and federal prosecutions as a result of the “two-sovereignty principle”); Heath v. Alabama, 474 U.S. 82, 89 (1985) (“The States are no less sovereign with respect to each other than they are with respect to the Federal Government.”).Show More as are Native American tribes.5 5.United States v. Lara, 541 U.S. 193, 210 (2004) (holding that because the “inherent tribal authority[] to prosecute nonmember Indians” does “not amount to an exercise of federal power,” tribes are acting as “separate sovereign[s]” for Fifth Amendment purposes during such prosecutions).Show More Territories such as Puerto Rico, however, are not.6 6.Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (holding that “[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government . . . the Commonwealth and the United States are not separate sovereigns” for Fifth Amendment purposes).Show More A hypothetical defendant could thus be subject to all criminal jurisdictions within the United States, assuming that a jurisdictional hook connects the defendant’s conduct and each of the respective sovereigns. The possibility of these concurrent or subsequent prosecutions militates against a common-sense understanding of what the Double Jeopardy Clause would seem to require. Nevertheless, the Supreme Court has repeatedly upheld the constitutionality of the dual sovereignty doctrine, and it has done so most recently in the 2019 case of Gamble v. United States.7 7.139 S. Ct. 1960, 1979–80 (2019).Show More

This Note argues that the dual sovereignty doctrine, in its current formulation as expressed in Gamble, unconstitutionally infringes upon defendants’ due process rights. First, this Note argues that a close reading of the case law upon which the Gamble Court relies implies a more flexible construction of the dual sovereignty doctrine and that the doctrine should only come into play when separate prosecutions vindicate distinct sovereign interests. Moreover, the doctrine should be reinterpreted following both the ratification of the Fourteenth Amendment and the 1969 Benton decision incorporating the Double Jeopardy Clause through the Due Process Clause—something for which the Court has not properly accounted. Second, this Note examines an argument by the majority relating to prosecutions by international foreign sovereigns to demonstrate that the majority misunderstands the concept of sovereignty. The majority’s reinterpretation of the dual sovereignty doctrine should not ipso facto alter the effect that foreign criminal proceedings may have on domestic ones. Finally, this Note proposes a “primary-purposes” balancing test, which would protect defendants’ due process rights against double jeopardy while simultaneously carving out a constitutionally permissible space for instances where subsequent prosecution by another sovereign may remain legitimate and desirable. This Note conducts a substantial-interest analysis8 8.This term may be familiar from choice-of-law theory, as it describes an analytical method “in which courts identify those states with interests in a particular issue before the court and then determine which of the competing states should have its law applied to the issue. The court makes that determination by identifying the state with the greatest interest in the matter.” John Bernard Corr, Interest Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983 Utah L. Rev. 651, 653 n.10. This Note advances a somewhat analogous argument in the Double Jeopardy context, namely: when two or more separate domestic sovereigns have jurisdiction over a matter, the sovereign whose interest is primarily at stake should proceed with the prosecution, and only when that sovereign, in its own proceeding, cannot substantially vindicate the interest of the other(s), should subsequent or concurrent prosecutions proceed without running afoul of the Double Jeopardy and Due Process Clauses. Otherwise, any resemblance between this Note’s use of this term here and its use in a choice-of-law context is only coincidental.Show More with respect to the dual sovereignty doctrine and proposes a test that would resolve the applicability of the doctrine with respect to both domestic and foreign sovereigns.9 9.The Ohio Northern University Law Review published a short piece on Gamble that briefly suggested the applicability of an interest-analysis and the possible use of a balancing test in resolving the constitutional problems associated with the dual sovereignty doctrine. Alexander S. Prillaman, Student Case Notes, Gamble v. United States, 46 Ohio N.U. L. Rev. 181, 192–93 (2020). This Note, however, analyzes in significantly greater detail the prior case law upon which Gamble relies, discusses the consequences of the incorporation of the Double Jeopardy Clause, and examines the effects of a possible modification of the dual sovereignty doctrine vis-à-vis foreign (international) sovereign proceedings both to flesh out the possibility of a balancing test and to ground the suggestion more firmly in the broader jurisprudential principles and normative desirability of such a test.Show More

  1.  U.S. Const. amend. V. ↑
  2.  395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”). ↑
  3.  302 U.S. 319, 325 (1937). ↑
  4.  See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132–34 (1959) (finding no double jeopardy bar to successive state and federal prosecutions as a result of the “two-sovereignty principle”); Heath v. Alabama, 474 U.S. 82, 89 (1985) (“The States are no less sovereign with respect to each other than they are with respect to the Federal Government.”). ↑
  5.  United States v. Lara, 541 U.S. 193, 210 (2004) (holding that because the “inherent tribal authority[] to prosecute nonmember Indians” does “not amount to an exercise of federal power,” tribes are acting as “separate sovereign[s]” for Fifth Amendment purposes during such prosecutions). ↑
  6.  Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (holding that “[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government . . . the Commonwealth and the United States are not separate sovereigns” for Fifth Amendment purposes). ↑
  7.  139 S. Ct. 1960, 1979–80 (2019). ↑
  8.  This term may be familiar from choice-of-law theory, as it describes an analytical method “in which courts identify those states with interests in a particular issue before the court and then determine which of the competing states should have its law applied to the issue. The court makes that determination by identifying the state with the greatest interest in the matter.” John Bernard Corr, Interest Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983 Utah L. Rev. 651, 653 n.10. This Note advances a somewhat analogous argument in the Double Jeopardy context, namely: when two or more separate domestic sovereigns have jurisdiction over a matter, the sovereign whose interest is primarily at stake should proceed with the prosecution, and only when that sovereign, in its own proceeding, cannot substantially vindicate the interest of the other(s), should subsequent or concurrent prosecutions proceed without running afoul of the Double Jeopardy and Due Process Clauses. Otherwise, any resemblance between this Note’s use of this term here and its use in a choice-of-law context is only coincidental. ↑

  9.  The Ohio Northern University Law Review published a short piece on Gamble that briefly suggested the applicability of an interest-analysis and the possible use of a balancing test in resolving the constitutional problems associated with the dual sovereignty doctrine. Alexander S. Prillaman, Student Case Notes, Gamble v. United States, 46 Ohio N.U. L. Rev. 181, 192–93 (2020). This Note, however, analyzes in significantly greater detail the prior case law upon which Gamble relies, discusses the consequences of the incorporation of the Double Jeopardy Clause, and examines the effects of a possible modification of the dual sovereignty doctrine vis-à-vis foreign (international) sovereign proceedings both to flesh out the possibility of a balancing test and to ground the suggestion more firmly in the broader jurisprudential principles and normative desirability of such a test. ↑

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