CORE CRIMINAL LAW SUBJECTS: Defenses: Former Jeopardy

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. 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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