FIRST PRINCIPLESConstitutional Matters: Double Jeopardy

2013 (September Term)

United States v. Elespuru, 73 M.J. 326 (the prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against double jeopardy). 

2011 (September Term)

United States v. Easton, 71 M.J. 168 (the protection against double jeopardy under the Fifth Amendment applies in courts-martial). 

(in both the military and civilian contexts, once jeopardy has attached, an accused may not be retried for the same offense without consent once jeopardy has terminated). 

(once double jeopardy has attached, it precludes retrial under a variety of scenarios including an acquittal, discharge of the jury in the absence of manifest necessity, or dismissal of the charges in the absence of manifest necessity; it does not preclude subsequent proceedings, inter alia, where there is manifest necessity for declaring a mistrial or otherwise discharging the jury). 

(a high degree of necessity is required to meet the manifest necessity standard for withdrawing charges after a panel of members is sworn and assembled while permitting retrial without violating the prohibition against double jeopardy). 

(a convening authority’s decision to withdraw charges against appellant after the members had been sworn and assembled was not justified by manifest necessity for double jeopardy purposes where a technical failure rendered the deposition video tapes of two essential government witnesses unusable; the trial counsel knew that the video tapes were unusable but still proceeded to trial; and there is no indication in the record that the convening authority withdrew the charges based on manifest necessity; here, the government was responsible for taking and providing the depositions, and it failed to successfully complete this task; failing to provide operable video tapes is not a military exigency; even if military necessity required the taking of depositions in Iraq, it did not compel the transport of the tapes back to the United States in unusable condition). 

(in the civilian context, jeopardy attaches when a jury is empaneled and sworn in both federal and state jury trials).

(in the military context under Article 44(c), UCMJ, jeopardy attaches when evidence is introduced; in regards to members trials, Article 44(c), UCMJ, is constitutional on its face and as applied to appellant; while this is different than the Supreme Court’s holding as to when double jeopardy attaches in the civilian world, in the military context, the accused does not have the same protected interest in retaining the panel of his choosing, and therefore jeopardy does not attach in a court-martial until evidence is introduced; the structure and purpose of the UCMJ and the MCM also indicate a different intent on the part of Congress and the President, respectively; Congress appropriately exercised its Article I power, which authorizes it to make rules for the government and regulation of the land and naval forces, when it enacted Article 44(c), UCMJ). 

(judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress).   

(under RCM 604(b), if the convening authority withdraws charges for an improper reason, they cannot be re-referred for trial; charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity). 

United States v. Stewart, 71 M.J. 38 (among other protections, the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal; this principle prohibits a reviewing court from rehearing any incidents for which the accused was found not guilty; consistent with this double jeopardy principle, the CCA may not conduct a factual sufficiency review when the findings are ambiguous because such action creates the possibility that the court would affirm a finding of guilt based on an incident of which the appellant had been acquitted by the factfinder at trial). 

(in this case, the government initially charged appellant with one specification of aggravated sexual assault for engaging in a sexual act with a person “who was substantially incapacitated or substantially incapable of declining participation in the sexual act” in violation of Article 120(c)(2), UCMJ; the military judge severed the sole specification into two separate specifications which were identical except that Specification 1 alleged that the victim was “substantially incapacitated” and Specification 2 alleged that the victim was “substantially incapable of declining participation in the sexual act;” before deliberations, the military judge instructed the members as to the elements of each offense and the definitions of the terms applicable to each offense; when he defined the terms “substantially incapacitated” and “substantially incapable,” the military judge defined them in exactly the same manner; hence, the members were confronted with two offenses that, as instructed, alleged exactly the same offense; as a result, the military judge created the framework for a potential double jeopardy violation; this potential was further crystallized by the procedural instructions that the military judge subsequently provided the members to assist them in reaching their findings when he told them to reach findings on Specification 1 before considering Specification 2; as a result, appellant was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense; even if the members did not first make a decision on Specification 1 before considering Specification 2, as a result of the military judge’s instructions, they were placed in the untenable position of finding appellant both guilty and not guilty of the same offense; under the unique circumstances of this case, the principles underpinning the Double Jeopardy Clause made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found appellant not guilty of in Specification 1; the CCA’s holding to the contrary was error). 

2009 (September Term)


United States v. Anderson, 68 M.J. 378 (if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct, the court violates the double jeopardy clause of the Constitution).

2008 (September Term)

United States v. Wilson, 67 M.J. 423 (double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty).


United States v. Delarosa, 67 M.J. 318 (constitutional and statutory limitations on former jeopardy are not at issue when, as in the present case, charges are pursued in a federal proceeding - a court-martial - after dismissal in state court). 


2006

 

United States v. Roderick, 62 M.J. 425 (if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct, the court violates the Double Jeopardy Clause of the Constitution).


2005


United States v. Leak
, 61 M.J. 234 (considering the principles behind the Double Jeopardy Clause and precedent, a finding of factual insufficiency by a court of criminal appeals is not the legal equivalent of an acquittal by the trier of fact at the court-martial level).  


(Congress intended a court of criminal appeals to act as factfinder in an appellate-review capacity and not in the first instance as a trial court; a court of criminal appeals is more akin to a district court entering its judgment of acquittal pursuant to Fed. R. Crim. P. 29 than it is to a trial jury; in such a case, under the double jeopardy clause the government may appeal the granting of a motion for judgment of acquittal only if there would be no necessity for another trial, i.e., only where the jury has returned a verdict of guilty; in the military justice system, at the time a court of criminal appeals makes a determination of factual insufficiency, a guilty finding will necessarily have been returned by a court-martial).


(a finding of factual insufficiency by a court of criminal appeals is not the legal equivalent of an acquittal by the trier of fact at the court-martial level for purposes of the Double Jeopardy Clause; neither Article 67 nor double jeopardy considerations preclude this Court from reviewing questions of law raised by the government by certification where the members at trial have returned a finding of guilty but that finding has been set aside by the court of criminal appeals for factual insufficiency). 


2004

 

United States v. Hudson, 59 MJ 357 (the Fifth Amendment protection against double jeopardy provides that an accused cannot be convicted of both an offense and a lesser-included offense).

 

2003

United States v. Josey, 58 M.J. 105 (service members are protected with respect to each of the three components of the constitutional prohibition against double jeopardy: (1) trial for the same offense after acquittal; (2) trial for the same offense after conviction; and (3) multiple punishments for the same offense).

(the issue of multiple punishments presents a unique situation in the military justice system because the court-martial process serves disciplinary as well as criminal law functions; a critical element of the disciplinary process involves the authority to include in the sentence certain elements that affect military personnel administration, such as forfeiture of pay, restriction to specified limits, reprimands, reduction in grade, and punitive discharges).

2000

United States v. Rosendahl, 53 MJ 344 (the constitutional protection against double jeopardy applies to three circumstances:  (1) trial for the same offense after acquittal; (2) trial for the same offense after conviction; and (3) multiple punishments for the same offense).

(the current structure of the former-jeopardy provisions in the Code and Manual provides each of the three components of the constitutional prohibition against former jeopardy:  (1) prohibition against trial for the same offense after acquittal; (2) prohibition against trial for the same offense after conviction; and (3) prohibition against multiple punishments for the same offense.  See Articles 44, 63, and 75(a), UCMJ; RCMs 810(d)(1), 1002, and 1107(f)(5)(A)).

1999

United States v. Savage, 50 MJ 244 (a lesser-included offense is legally the same as the greater offense for purposes of the Double Jeopardy Clause).

United States v. Gammons, 51 MJ 169 (the defense of former jeopardy in military law, as established in Article 44, UCMJ, does not extend to cases in which there has been prior nonjudicial punishment for the same act or omission; similarly, Article 15(f), UCMJ, provides that nonjudicial punishment is not a bar to trial by court-martial for a serious offense or crime growing out of the same act or omission).

(the complimentary goals of enhancing military discipline while reducing the adverse impact of convictions on servicemembers provide a rational, non-criminal justification for nonjudicial punishment, and the relatively modest penalties available under nonjudicial punishment are not so excessive as to transform nonjudicial punishment into a criminal proceedings under the Double Jeopardy Clause).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site