FIRST PRINCIPLESConstitutional Matters: Double Jeopardy

2020 (October Term)

United States v. Cardenas, 80 M.J. 420 (multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense; therefore, the Fifth Amendment protection against double jeopardy provides that an accused cannot be convicted of both an offense and a lesser-included offense). 

2019 (October Term)

United States v. Rice, 80 M.J. 36 (the Double Jeopardy Clause bars a federal sovereign from using two court systems, civilian and military, to bring successive prosecutions for precisely the same conduct, where the only element the federal civilian statute includes that the military statute does not is jurisdictional, and the remedy for a successive prosecution is dismissal). 

(the Fifth Amendment provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb; the general bar on successive prosecutions is made particular in the military through Article 44, UCMJ, RCM 907(b)(2)(C)). 

(the prohibition against double jeopardy not only protects against multiple punishments for the same offense, but shields individuals from the harassment of multiple prosecutions for the same misconduct; it also forbids successive prosecution and cumulative punishment for a greater and lesser included offense). 

(the double jeopardy prohibition applies only where the same act or transaction is involved; and in examining whether two statutory crimes are the same offense for purposes of the Fifth Amendment, the test for whether the same act or transaction constitutes a violation of two distinct statutory provisions is whether each provision requires proof of a fact which the other does not; this test is also used to determine whether one offense is a lesser included offense of another and therefore barred by double jeopardy; if two offenses have the same elements, those offenses are the same offense and double jeopardy bars successive prosecution; and whether two offenses are the same is determined through a strict facial comparison of the elements). 

(where the conduct and mens rea charged under Article 134, UCMJ, are proscribed by directly analogous federal criminal statutes, the jurisdictional element of the Title 18 offense is not considered for purposes of determining whether it is the same offense as, or a lesser included offense of, the Article 134, UCMJ, offense). 

(there is a distinction between substantive elements and jurisdictional elements; and those differences are valid ones when determining what constitutes the same offense for purposes of a double jeopardy analysis involving Article 134, UCMJ).

(a single sovereign cannot escape double jeopardy’s confines by successively prosecuting an accused for the same or a lesser included offense in two different judicial systems that draw their authority from the same source). 

(the same misconduct can be the basis for prosecution under separate statutory provisions of different sovereigns because the same act, by transgressing the laws of two sovereigns, creates a duality of harm).

(the same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government). 

(in this case, the civilian possession offense of child pornography under 18 USC § 2252A was a lesser included offense of the offense of child pornography charged under Article 134, UMCJ; the Article 134, UCMJ, offense as charged wholly encompassed the civilian possession offense and required the government to additionally prove the conduct was service discrediting, thus making it the greater offense; accordingly, the military possession specifications were thus barred by both Article 44, UCMJ, and the Fifth Amendment’s Double Jeopardy Clause). 

(in this case, where (1) appellant was convicted in federal court for possessing child pornography in violation of 18 USC § 2252A, (2) appellant subsequently pleaded guilty in a court-martial to possession of the same child pornography in violation of Article 134, UCMJ, and (3) the federal court later dismissed the possession offense as a double jeopardy violation, this remedy was insufficient; regardless of the federal court’s action, appellant’s court-martial was a successive prosecution barred by double jeopardy and the possession offense had to be dismissed). 

(the Double Jeopardy Clause is a guarantee against being twice put to trial for the same offense; a successive prosecution is a distinct wrong because it forces an accused to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense; where the State makes repeated attempts to convict an individual for an alleged offense, the only available remedy is the traditional double jeopardy bar against the retrial of the same offense). 

United States v. Turner, 79 M.J. 401 (the Sixth Amendment provides that an accused shall be informed of the nature and cause of the accusation against him; further, the Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law, and no person shall be subject for the same offense to be twice put in jeopardy). 

(when an accused servicemember is charged with an offense at court-martial, each specification will be found constitutionally sufficient only if it alleges, either expressly or by necessary implication, every element of the offense, so as to give the accused notice of the charge against which he must defend and protect him against double jeopardy). 

2018 (October Term)

United States v. Coleman, 79 M.J. 100 (the Fifth Amendment’s Double Jeopardy Clause precludes a court, contrary to the intent of Congress, from imposing multiple convictions and punishments under different statutes for the same act or course of conduct). 

United States v. Hutchins, 78 M.J. 437 (the Double Jeopardy Clause of the Fifth Amendment states that no person shall be subject for the same offence to be twice put in jeopardy of life or limb; this clause embodies the extremely important principle of issue preclusion). 

(the term collateral estoppel in modern usage is now referred to as issue preclusion).

(issue preclusion means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit).

(issue preclusion is recognized under RCM 905(g); the issue preclusion rule in RCM 905(g) is the same as the issue preclusion rule of the Fifth Amendment).

(an issue of ultimate fact for issue preclusion purposes is an issue that was necessary to the initial judgment; a determination ranks as necessary only when the final outcome hinged on it).

(the doctrine of issue preclusion forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial; thus, an appellant can prevail under the doctrine of issue preclusion only if he can satisfy both prongs of the following test: (1) the appellant first must demonstrate from evidence in the record that the panel’s acquittal at the first court-martial necessarily determined an issue of ultimate fact in his favor; and (2) the appellant then must demonstrate that in order to obtain a conviction at the second court-martial, the government was required to prove beyond a reasonable doubt the existence of that same issue of ultimate fact).

(the issue preclusion test is a demanding one; the test does not extend to exclude in all circumstances relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted). 

(a military judge may admit otherwise admissible evidence even though it was previously introduced on charges of which an accused has been acquitted as long as the evidence is relevant and the probative value of the proffered evidence is not outweighed by its prejudicial effect). 

(an acquittal in a criminal case does not preclude the government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof such as in an MRE 404(b) context; the fact of the prior acquittal may diminish the probative value of the evidence, however, and should be considered by the military judge when conducting the MRE 403 analysis).

(issue preclusion is concerned with issues of ultimate fact, not impressions, generalizations, or a narrative of the underlying crime which is drawn from those facts). 

(in this case, appellant’s acquittals at his prior court-martial regarding the obstruction of justice specifications did not determine any issue of ultimate fact where the military judge instructed the members that they were required to acquit appellant of these offenses if they convicted him of the conspiracy involving obstruction of justice; thus, because appellant was convicted of the conspiracy, no issue of ultimate fact could be deduced from these acquittals because the panel members were compelled to comply with the military judge’s legal instructions). 

(in this case, appellant’s acquittal at his prior court-martial for assault did not determine any issue of ultimate fact where there was an inconsistency between the members’ not guilty finding for this substantive offense and the members’ guilty finding for the conspiracy offense that involved overt acts that formed the basis for this same substantive offense; where the verdicts were rationally irreconcilable, the acquittal gained no preclusive effect). 

(in this case, even assuming arguendo that appellant’s acquittal at his prior court-martial of making a false official statement resulted in a determination of some ultimate fact in his favor, appellant has failed to demonstrate any nexus between an issue of ultimate fact resulting from his acquittal on that offense at his first trial and any charges at the second court-martial). 

(in this case, although appellant asserts that the fact that he was not involved in a conspiracy to murder a random Iraqi man was resolved in his favor at his prior court-martial, this did not preclude the government from proving at the second court-martial the conspiracy, unpremeditated murder, and larceny offenses where appellant was convicted of these three offenses at the first trial, thereby demonstrating that the government’s success at the second trial did not hinge on the purported ultimate fact now cited by appellant; moreover, this purported ultimate fact did not prevent the government from obtaining convictions on the conspiracy, unpremeditated murder, and larceny offenses at the second trial because no element of the offenses of conviction at the second trial hinged on appellant’s involvement in a conspiracy to kill a random Iraqi male; in any event, at the first trial, the conspiracy to commit murder charge did not specify the identity of the victim, and therefore, appellant was not necessarily charged with a conspiracy to murder any random Iraqi male at the first trial, and no issue of ultimate fact can be discerned under these circumstance).

(in this case, acquittals in appellant’s first court-martial for housebreaking, kidnapping, and conspiracy to commit housebreaking and kidnapping did not preclude the government from presenting any conduct related to these offenses at his second court-martial where these particular offenses were not charged at the second trial, and where the government could prove all of the elements of the offenses of which appellant was convicted at his second trial without having to prove beyond a reasonable doubt that appellant committed any of the conduct related to those offenses of which appellant was acquitted at his first trial). 

(in this case, acquittal in appellant’s first court-martial for premeditated murder of an unknown Iraqi man did not preclude the government from proving unpremeditated murder of an unknown Iraqi man at the second trial where appellant was actually convicted of unpremeditated murder of an unknown Iraqi man at the first trial; the acquittal for premeditated murder of an unknown Iraqi man at the first trial at most established that appellant did not act with premeditation in killing the unknown Iraqi man; this fact was not necessary for proving the charged conspiracy to murder at the second trial because appellant’s agreement to murder the unknown man, and the overt acts in furtherance of this agreement, would suffice to establish the conspiracy). 

2016 (October Term)

United States v. Forrester, 76 M.J. 479 (the concept of multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense; the Double Jeopardy Clause prohibits multiplicitous prosecutions, that is, when the government charges a defendant twice for what is essentially a single crime).

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (in this case, the panel’s reconsideration of its sentence during deliberations did not violate the Fifth Amendment double jeopardy clause; although under the double jeopardy clause, a defendant cannot be sentenced to death at a retrial if he was sentenced to life imprisonment following a trial-like capital sentencing proceeding at his first trial, here the same panel reconsidered its own sentence during its one and only deliberation session). 

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