720 F.3d 1127 (9th Cir. 2013), 11-30297, United States v. Stoltz

Docket Nº:11-30297.
Citation:720 F.3d 1127
Opinion Judge:FISHER, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Christopher Carl STOLTZ, Defendant-Appellee.
Attorney: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.
Judge Panel:Before: RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ, Circuit Judges.
Case Date:June 27, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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720 F.3d 1127 (9th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellant,

v.

Christopher Carl STOLTZ, Defendant-Appellee.

No. 11-30297.

United States Court of Appeals, Ninth Circuit.

June 27, 2013

Argued and Submitted Feb. 8, 2013.

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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).

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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. See 10 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. See 10 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. See 10 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. See 10 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. See 10 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

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the accused does not have the authority to bring charges to initiate a court-martial. See 10 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...

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