United States v. Stoltz

• Citation: 720 F.3d 1127
• Decision Date: 27 June 2013
• Docket Number: No. 11–30297.,11–30297.
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Christopher Carl STOLTZ, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

720 F.3d 1127

UNITED STATES of America, Plaintiff–Appellant,

v.Christopher Carl STOLTZ, Defendant–Appellee.

No. 11–30297.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 2013.

Filed June 27, 2013.

Karen L. Loeffler, United States Attorney, District of Alaska, Kyle G. French (argued), Assistant United States Attorney, District of Alaska, Anchorage, AK, for Plaintiff–Appellant.

Eric P. Lampel (argued) and Frances E. Clarke, The Lampel Firm, P.C., Irvine, CA, for Defendant–Appellee.

Appeal from the United States District Court for the District of Alaska, H. Russel Holland, Senior District Judge, Presiding. D.C. No. 3:11–cr–00035–HRH–1.

Before: RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ, Circuit Judges.

OPINION

FISHER, Circuit Judge:

It is well settled that, consistent with the Double Jeopardy Clause, the government may prosecute a member of the armed forces in a civilian criminal court even though he has previously received nonjudicial punishment for the same offense under Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815. See United States v. Reveles, 660 F.3d 1138, 1146 (9th Cir.2011). It is also well settled that a general or special court-martial precludes a subsequent civilian criminal prosecution for the same offense. See Grafton v. United States, 206 U.S. 333, 345–48, 27 S.Ct. 749, 51 L.Ed. 1084 (1907).

Here we must decide whether the Double Jeopardy Clause prohibits civilian criminal prosecution of a servicemember who previously received nonjudicial punishment without being informed of or waiving his statutory right to reject such punishment and demand a court-martial instead. See10 U.S.C. § 815(a). The district court, concluding that such a scenario would raise double jeopardy concerns, dismissed the indictment charging defendant Christopher Carl Stoltz with possession of child pornography. We conclude that this was error. Regardless of any alleged statutory procedural violation, Stoltz has never previously been criminally charged with possession of child pornography either in civilian court or by court-martial. The inquiry for the Double Jeopardy Clause is whether the defendant actually was previously placed in jeopardy, not whether he might have been placed in jeopardy if other procedures had been followed. We therefore hold that this prosecution does not violate the Double Jeopardy Clause. We also reject Stoltz's alternative argument that due process considerations require dismissal of the indictment. Accordingly, we reverse and remand for further proceedings.

I. MILITARY AND CIVILIAN JUSTICE

A brief overview of the interplay between military and civilian justice is necessary before turning to the facts of this case. The Uniform Code of Military Justice (UCMJ) provides that commanding officers can punish servicemembers through either courts-martial (either general, special or summary courts-martial) or nonjudicial punishment (NJP) proceedings. See10 U.S.C. § 815 (nonjudicial punishment); id. § 816 (courts-martial). In the United States Coast Guard, NJP proceedings are called a “Captain's Mast.” See Reveles, 660 F.3d at 1141.

“General and special courts-martial resemble judicial proceedings,” Middendorf v. Henry, 425 U.S. 25, 31, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), with punishments ranging up to and including capital punishment. See10 U.S.C. §§ 816, 825a, 831, 838. NJP, by contrast, is solely a disciplinary measure, is not criminal in nature and is intended for “minor offenses.” Id. § 815; see also Middendorf, 425 U.S. at 31–32, 96 S.Ct. 1281 (characterizing NJP as “an administrative method of dealing with the most minor offenses”). Possible punishments under NJP include arrest in quarters or correctional custody for not more than 30 days, forfeiture of not more than half a month's pay per month for two months, reduction in rank and extra duties. See10 U.S.C. § 815; see also Middendorf, 425 U.S. at 32 n. 9, 96 S.Ct. 1281.

If a servicemember is tried by general or special courtmartial, the Double Jeopardy Clause of the Fifth Amendment bars a subsequent civilian prosecution for the same offense. See Grafton, 206 U.S. at 345–48, 27 S.Ct. 749. But NJP is not considered a criminal proceeding, so imposition and enforcement of NJP bars neither a subsequent court-martial nor a subsequent civilian prosecution for the same offense. See10 U.S.C. § 815(f); Reveles, 660 F.3d at 1142–43, 1146.

Under the standard rule, servicemembers facing NJP can opt to reject the NJP and demand trial by court-martial in lieu of the NJP. “[E]xcept in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment.” 10 U.S.C. § 815(a). In truth, the servicemember cannot technically “demand” a court-martial, because the accused does not have the authority to bring charges to initiate a court-martial. See10 U.S.C. §§ 822, 823. Thus, despite the statutory language, it is more accurate to say that servicemembers generally have the right to reject the NJP in favor of a court-martial; if the servicemember invokes this right and rejects NJP, then the decision of whether to proceed with a court-martial rests with the proper convening authorities.

The right to reject NJP in favor of a court-martial is subject to an exception arguably pertinent to this case, known as the “vessel exception.” If the servicemember is “attached to or embarked in a vessel,” he does not have the right to reject NJP. 10 U.S.C. § 815(a).¹ But if the vessel exception does not apply, the servicemember faced with NJP must be informed of his right to reject NJP in favor of a court-martial, and NJP cannot be imposed unless the servicemember voluntarily, knowingly and intelligently waives that right in writing. See Fairchild v. Lehman, 814 F.2d 1555, 1559 (Fed.Cir.1987) (quoting United States v. Booker, 5 M.J. 238, 243 n. 20 (C.M.A.1977)).

II. FACTUAL BACKGROUND

Beginning in June 2002, Stoltz was an active duty enlisted member of the United States Coast Guard. In January 2007, the Coast Guard assigned him to the Coast Guard cutter Alex Haley as Electrician's Mate Third Class.² On October 7, 2008, while the Alex Haley was moored at Nome, Alaska, for a routine port call, a shipmate observed Stoltz aboard the cutter viewing on his laptop movies of children performing sexual acts. The next morning, the shipmate reported what he had seen to his superiors. During the Alex Haley's next routine port call, Stoltz met with a Coast Guard Investigative Service Special Agent, waived his right against self-incrimination and admitted possessing child pornography both aboard the Alex Haley and at his home in Kodiak, Alaska.³

To avoid precluding civilian criminal charges, the Alex Haley's commanding officer, Commander Kevin Jones, and executive officer, Lieutenant Commander Anthony Williams, opted not to court-martial Stoltz. But when seven months passed and no civilian criminal charges had been filed, Williams decided to impose NJP on Stoltz so that the crew could see that Stoltz had not escaped punishment for his offense and so that Stoltz would not receive an honorable discharge. Jones held a Captain's Mast on May 6, 2009. At the Captain's Mast, Jones charged Stoltz with viewing illicit material aboard the ship, in violation of UCMJ Article 134, 10 U.S.C. § 934, and Stoltz admitted the charge. Jones imposed punishment of a one-step reduction in Stoltz's rank, 45 days' extra duty, 45 days' restriction to the Alex Haley and an $1,800 fine. The Coast Guard did not offer to renew Stoltz's service commitment and separated him with General Under Honorable Conditions in June 2009.

At no point between October 2008 and May 2009 was Stoltz informed that he could reject NJP and demand a courtmartial instead. Nor did he ever waive his right under § 815 to demand a court-martial in lieu of NJP proceedings.

In April 2011, a federal grand jury in Alaska indicted Stoltz, charging him with one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(b), (b)(2). Stoltz moved to dismiss the indictment on double jeopardy grounds.⁴ The district court granted the motion, concluding that the vessel exception did not apply and Stoltz therefore should have been given the opportunity to reject NJP and demand a court-martial. The court further concluded that because Stoltz had not been made aware of his right to demand a court-martial, the United States could not charge him for the same crime in civilian court consistent with the Double Jeopardy Clause. The United States appealed. On appeal, Stoltz argues that we should affirm the dismissal of his indictment on either double jeopardy or due process grounds.

III. STANDARD OF REVIEW

We review de novo the district court's dismissal of an indictment based on violations of constitutional rights. See United States v. Ziskin, 360 F.3d 934, 943 (9th Cir.2003) (double jeopardy); United States v. Reveles–Espinoza, 522 F.3d 1044, 1047 (9th Cir.2008) (due process).

IV. VESSEL EXCEPTION

The parties dispute whether the vessel exception applied to the Coast Guard's imposition of NJP against Stoltz. We need not resolve this debate, however, because even assuming Stoltz is correct that the vessel exception did not apply here, dismissal of the indictment is not warranted. Thus, we assume without deciding that the vessel exception did not apply and therefore that the Coast Guard inappropriately imposed NJP on Stoltz without informing him of his right to reject NJP in favor of a court-martial or obtaining a written waiver of that right.

V. DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Double jeopardy bars Stoltz's prosecution only if he was...