2023 (October Term)
United States v. Driskill, 84 M.J. 248 (three prohibitions against double jeopardy apply to courts-martial; the Double Jeopardy Clause of the Fifth Amendment provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb; Article 44(a), UCMJ, provides that no person may, without his consent, be tried a second time for the same offense; and RCM 907(b)(2)(C) requires dismissal of a charge or specification if the accused has previously been tried by court-martial or federal civilian court for the same offense).
(one step in applying the three double jeopardy prohibitions is determining whether the accused has been twice put in jeopardy or, stated differently, tried twice; answering this question is sometimes complicated because not every court-martial proceeding counts as a trial for purposes of the Fifth Amendment, Article 44, UCMJ, and RCM 907(b)(2)(C)).
(pursuant to Article 44(a), UCMJ, in the case of a trial by military judge alone, jeopardy attaches on the presentation of evidence; in the case of a trial by member panel, jeopardy attaches when the members have been impaneled; once jeopardy has attached, an accused may not be retried for the same offense).
(under RCM 907(b)(2)(C)(i)(I) and U.S. v. Easton, 71 MJ 168 (CAAF 2012), jeopardy attaches to an offense when the government introduces evidence on the general issue of guilt).
(RCM 907(b)(2)(C)(iv) provides that jeopardy cannot attach if the court-martial lacks jurisdiction).
(another step in applying the prohibitions against double jeopardy in courts-martial is determining whether the accused is truly being tried twice for the same offense; when specifications allege offenses under different statutory provisions, this step requires courts to look closely at the elements of each of the alleged offenses).
(the point in time at which jeopardy attaches is not when a military judge sitting as a court-martial makes a ruling based on the sufficiency of the evidence; instead, jeopardy attaches when the government introduces evidence on the general issue of guilt).
(in this case, jeopardy attached in appellant's first court-martial for violating clause 3 of Article 134, UCMJ, by possessing obscene cartoons in violation a federal criminal statute when the government introduced evidence on the general issue of guilt, and as such, double jeopardy barred him from being tried twice for the same offense in a second court-martial; although the military judge in the first court-martial dismissed the specification for lack of jurisdiction on the ground that the federal criminal statute did not apply extraterritorially to his offense committed overseas, the court-martial did have personal and subject matter jurisdiction to try appellant for that offense because he was a member of the regular component of the armed forces and Article 134 applied in all places).
(in this case, the specifications in appellant's first and second courts-martial concerning obscene cartoons were for the same offense where appellant was first charged under clause 3 of Article 134, UCMJ, with conduct violating a federal criminal statute that included a jurisdictional element and was then later charged with the same conduct under clause 2 of Article 134, UCMJ; because the jurisdictional element of the federal criminal statute must be disregarded where it was not jurisdictional in the sense that it affected the court's subject matter jurisdiction, the two offenses were the same and the Double Jeopardy Clause barred the second prosecution).
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).
2002
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).
2001
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).
2000
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).
1999