U.S. v. Espinosa
| Decision Date | 25 April 2011 |
| Docket Number | 1:10mj457,1:10mj455,1:10mj645.,Case Nos. 1:10mj453,1:10mj480 |
| Citation | 789 F.Supp.2d 681 |
| Parties | UNITED STATES of Americav.Jose ESPINOSA, Defendant.United States of Americav.Donovan Crank, Defendant.United States of Americav.Matthew A. Gipson, Defendant.United States of Americav.Belvin D. Ware, Defendant.United States of Americav.Patrick M. Bates, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
OPINION TEXT STARTS HERE
John J. Radacsy, IV, United States Attorney Office, Alexandria, VA, for United States of America.Brian Lee Mizer, William Todd Watson, Office of the Federal Public Defender, Alexandria, VA, for Defendant.
These cases are before the court on defendants' motions to dismiss. Motions to dismiss were previously granted in the Espinosa and Crank cases after an evidentiary hearing, and the Government moved for reconsideration. In response, the court vacated those dismissals and conducted an additional evidentiary hearing. Defendants Gipson, Ware, and Bates were also before the court at that time and had also filed motions to dismiss. The court took evidence respecting all five defendants at the second evidentiary hearing, and then obtained additional briefing. The court now grants the motions to dismiss in each of these five cases.
At issue is whether the United States government may prosecute these military servicemembers in a civilian court for crimes committed on a military installation after they have waived their right to trial by court-martial and instead received “non-judicial punishment” pursuant to Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815 (“Article 15”). While defendants argue several grounds for dismissal, the court grants the motions on the ground that defendants did not make voluntary, knowing, and intelligent waivers of their statutory right to trial by court-martial.
Article 15 permits a commanding officer to impose disciplinary, or “non-judicial,” punishment upon a servicemember under the officer's command for “minor offenses” if the servicemember waives his statutory right to a court-martial. 10 U.S.C. § 815(b). The Manual for Courts–Martial, promulgated by the President pursuant to the authority granted by 10 U.S.C. § 836, defines a “minor offense” as “[o]rdinarily ... an offense which the maximum sentence imposable would not include a dishonorable discharge or confinement for longer than 1 year if tried by general court-martial.” 2008 MCM Part V ¶ 1e. The parties here agree that the offenses at issue are “minor offenses.” 1
Under Article 15, a servicemember has the right to demand trial by court-martial instead of accepting disciplinary punishment. 10 U.S.C. § 815(a). If the servicemember has elected to receive disciplinary punishment rather than a trial by court-martial for the minor offense, the military may not prosecute the servicemember by court-martial. 2008 MCM Rule 907(b)(2)(D)(iv). This either-or condition of disciplinary punishment or trial by court-martial gives rise to the term “non-judicial punishment” to describe the former.
Congress made the last major changes to Article 15 in 1962, when it increased the authority of commanding officers to impose non-judicial punishment. The Senate Report accompanying the bill making those changes stated that the purpose of the bill was to “enable [commanding officers] to deal with minor disciplinary problems and offenses without resort to trial by court-martial.” S.Rep. No. 87–1911, at 1–2, reprinted in 1962 U.S.C.C.A.N. 2379, 2380. The report went into further detail:
The bill, by providing increased authority for nonjudicial punishment, will enable commanders to deal promptly and efficiently with problems of discipline. At the same time, the increased nonjudicial authority should permit the services to reduce substantially the number of court-martials [sic] for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.
S. Rep. No. 87–1911, at 1–3, reprinted in 1962 U.S.C.C.A.N. 2379, 2381–82. Thus, the objective of Article 15 is, in short, to increase the use of non-judicial punishment and, correspondingly, to reduce the number of courts-martial for minor offenses.
The Manual of the Judge Advocate General (the “JAG Manual”) is promulgated pursuant to the Manual for Courts–Martial and governs the conduct of military prosecutions in the Department of the Navy, including the United States Marine Corps. JAG Manual § 101a, Prefatory Note 3. It states that non-judicial punishment “is designed for minor misconduct in a nonjudicial forum, without the permanent stigma of a record of ‘Federal conviction.’ ” JAG Manual § 0110b. The JAG Manual also flatly prohibits the imposition of non-judicial punishment for “minor offense” conduct for which servicemembers have already been tried in United States District Courts. JAG Manual § 0124d. The clear intention of this provision is to prevent punishing servicemembers twice for the same conduct.
The penalties available at non-judicial punishment are delineated at 10 U.S.C. § 815(b). As the cases before the court demonstrate, those penalties include reduction in rank, forfeiture of pay, movement restrictions, and extra duties.
Under a separate set of regulations, the military may pursue administrative separation of a servicemember based upon civilian offenses such as those at issue here. The Naval Military Personnel Manual, issued pursuant to Navy Regulations and which applies to defendants, provides that a servicemember may be separated by reason of misconduct based upon commission or conviction of a civilian offense. Naval Military Pers. Manual 1910–142, –144.
It is also important to note that if a servicemember faced with the choice between non-judicial punishment and trial by court-martial demands and receives a trial by court-martial, the government may not then prosecute the servicemember in civilian court, pursuant to principles of double jeopardy. See Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 123, 12 L.Ed. 618 (1849) () (internal citations omitted); see also Kepner v. United States, 195 U.S. 100, 128, 24 S.Ct. 797, 49 L.Ed. 114 (1904) () (citing Coleman v. Tenn., 97 U.S. (7 Otto) 509, 24 L.Ed. 1118 (1878)). 2 It has been held in this district, though, that the Double Jeopardy Clause does not bar criminal prosecution after non-judicial punishment. United States v. Trogden, 476 F.Supp.2d 564, 571 (E.D.Va.2007).
Defendants in these cases are members of the United States Marine Corps who allegedly operated motor vehicles while under the influence of alcohol within the boundaries of the Marine Corps Base at Quantico, Virginia. Defendants were therefore subject to, and had the right to, be tried by court-martial.
Pursuant to the procedures authorized under Article 15, defendants were taken before a superior officer and offered non-judicial punishment instead of a court-martial. Defendants were also advised of their right to seek counsel. Defendants Espinosa, Gipson, and Ware attempted to exercise that right by speaking with a JAG officer provided to servicemembers for consultations on base.3 Defendants Crank and Bates did not speak with a military attorney.4 All five defendants waived their right to demand trial by court-martial and received non-judicial punishment in exchange for their waiver.5 Defendants' agreements were memorialized in writing in Unit Punishment Book entries, which are pre-printed forms on which the details of defendants' offenses were entered and defendants indicated their decisions to accept non-judicial punishment in exchange for waiving their right to a court-martial.
Thereafter, the government, through a Special Assistant United States Attorney who is also a United States Marine Corps Captain, filed the pending criminal informations in this court against defendants.6
When a servicemember is faced with the decision whether to waive his right to trial by court-martial and instead accept non-judicial punishment, his waiver must be voluntary, knowing, and intelligent. Fairchild v. Lehman, 814 F.2d 1555, 1558–59 (Fed.Cir.1987) (internal citations omitted), aff'g 609 F.Supp. 287 (E.D.Va.1985) (Williams, J.). To comply with that standard, the servicemember must have “sufficient awareness of the relevant circumstances and likely consequences[ ]” of his decision. Id. (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)) (internal quotation marks omitted). In these cases, it is clear that defendants did not possess “the requisite quantum of information necessary for an informed decision[.]” Id. (quoting United States v. Booker, 5 M.J. 238, 243 (C.M.A.1977)).
There is little discussion in the precedents of what does and does not constitute “the requisite quantum of information necessary for an informed decision,” but Booker and Fairchild provide adequate guidance in the present cases.
Booker stands for the simple but important proposition that a servicemember is entitled to the assistance of counsel in deciding whether to demand trial by court-martial or waive his right to trial and accept non-judicial punishment. 5 M.J. at 243.7 Finding that “[t]he consequences of a decision to accept ... an Article 15 ... involve due process considerations[,]” the court held that “only a legally trained person can supply the requisite quantum of information necessary for an informed decision[.]” Id. The court thus also required that an individual facing the decision whether to accept non-judicial punishment be informed of his right to consult with independent counsel. Id.
In Fairchild, a Marine servicemember was charged...
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