CORE CRIMINAL LAW SUBJECTS: Defenses: Former Jeopardy



United States v. Bracey, 56 MJ 387 (the protections for military personnel against double jeopardy under the Fifth Amendment of the Constitution of the United States and Article 44, UCMJ, 10 USC 844, apply only to judicial punishments, not to nonjudicial punishments under Article 15; it is Article 15(f) that prevents the accused from being punished twice for the same offense as a matter of statutory law even though such successive punishment is otherwise permissible as a matter of constitutional law).



United States v. Promin, 54 MJ 467 (nether the Double Jeopardy Clause nor Article 44, UCMJ, prohibits the forfeiture of pay and allowances imposed by operation of Article 58b, UCMJ; cumulative sentences imposed in a single trial do not violate the Double Jeopardy Clause where the punishment prescribed is no greater than the legislature intended).

(automatic forfeiture of pay and allowances under Article 58b, UCMJ, is not an instance of an individual being twice put in jeopardy; rather, there is but one proceeding, as a result of which an accused receives multiple punishments as authorized and intended by Congress).


United States v. Heryford, 52 MJ 265 (double jeopardy claims, including those founded in multiplicity, are waived by failure to make a timely motion to dismiss, unless they rise to the level of plain error).


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).

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