U.S. v. Trogden

• Citation: 476 F.Supp.2d 564
• Decision Date: 01 March 2007
• Docket Number: Criminal No. 4:06cr132.
• Parties: UNITED STATES of America, Appellant, v. Tyler W. TROGDEN, Appellee.
• Court: U.S. District Court — Eastern District of Virginia

476 F.Supp.2d 564

UNITED STATES of America, Appellant, v. Tyler W. TROGDEN, Appellee.

Criminal No. 4:06cr132.

United States District Court, E.D. Virginia, Newport News Division.

March 1, 2007.

Tyler W. Trogden, Pro se.

David Whitman, Office of the Post Judge Advocate Headquarters, Fort Monroe, Fort Monroe, VA, for Appellant.

OPINION AND REMAND ORDER

REBECCA BEACH SMITH, District Judge.

This case is before the court on the government's appeal of a magistrate judge's dismissal of a criminal information, which charged defendant with the misdemeanor of driving under the influence of alcohol.¹ For the reasons stated below, the magistrate judge's decision is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

On August 26, 2006, at approximately 5:15 p.m., defendant Tyler E. Trogden, an enlisted member of the United States Navy, was cited by military police for the misdemeanor of driving under the influence of alcohol at Fort Monroe, Virginia. Two days later, on August 28, 2006, defendant received nonjudicial punishment ("NJP"), pursuant to Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815, from his commanding officer aboard the U.S.S. HARRY S. TRUMAN. Defendant received the following NJP:(1) reduction in rank of one grade from E-4 to E-3; (2) forfeiture of one-half of his monthly pay for two months; (3) restriction to his unit for 45 days; and (4) extra duties for 45 days.

On September 6, 2006, the government filed a criminal information, which charged defendant with "knowingly and unlawfully operat[ing] a motor vehicle while under the influence of alcohol," in violation of 18 U.S.C. §§ 7, 13 (assimilating VA.CODE ANN. § 18.2-266). On October 11, 2006, defendant appeared pro se before a magistrate judge, where he consented to having his case heard and waived his right to a jury trial. Defendant entered a plea of guilty, and the government made its proffer of evidence to the court.² After this proffer the government presented defendant's NJP to the court, as it had agreed to recommend a minimum sentence. It was at this time that the court, on its own initiative, dismissed the criminal information against defendant. In doing so, the magistrate judge stated

[t]here goes the case, counsel.... [I]t's real simple.... [N]onjudicial punishment hurts just like judicial punishment for a young man who's in the Navy who's suffered — who has been charged with driving under the influence and has had the Navy administer that kind of punishment, why should we be imposing on him double the penalty that the person gets imposed on him? I think it is extraordinarily bad policy.... I'm simply not willing to penalize the young man twice for exactly the same offense, because he has no control over the Article 15. I have control over this.... [I]n fairness, I'm not going to convict him of this offense.... [H]aving had an Article 15, you have had imposed upon you significant punishment and I'm not going to have another form of punishment imposed upon you.

Tr. at 9-12.³ The magistrate judge thus concluded, without citing any authority, that the Double Jeopardy Clause prevented the government from criminally prosecuting defendant for driving under the influence of alcohol after he had received NJP for the same offense.

On October 18, 2006, the government timely filed its notice of appeal pursuant to Rule 58(g)(2)(A).⁴ On November 22, 2006, the government filed its memorandum in support of its appeal. The government argues that the imposition of NJP does not bar a subsequent criminal prosecution for the same offense. Defendant, who is still proceeding pro se, did not file a memorandum in response to the government's appeal. Having reviewed the full transcript and record of the proceeding before the magistrate judge and the government's submission on appeal, the court will now resolve the legal question before it.⁵

II. ANALYSIS

The sole issue on appeal is whether the imposition of NJP under Article 15 amounts to criminal punishment, triggering the protections of the Double Jeopardy Clause of the Fifth Amendment. Rule 58(g)(2)(D) provides that "[t]he scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." FED.R.CRIM.P. 58(g)(2)(D). Accordingly, issues of law are reviewed de novo. United States v. Bursey, 416 F.3d 301, 305-06 (4th Cir.2005); United States v. Imngren, 98 F.3d 811, 813 (4th Cir.1996).

The Double Jeopardy Clause 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. As applicable in this case, the clause prohibits multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Supreme Court, however, has "long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, `in common parlance,' be described as punishment." Hudson v. United States, 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 87 L.Ed. 443 (1943)). Instead, "[t]he Clause protects only against the imposition of multiple criminal punishments for the same offense." Id. at 99, 118 S.Ct. 488 (citing Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938)); see Hess, 317 U.S. at 549, 63 S.Ct. 379 (stating that only criminal punishment "subject[s] the defendant to `jeopardy' within the constitutional meaning"). Thus, rather than making the existence of mere punishment determinative, the Supreme Court in Hudson focused on distilling the criminal or civil nature of the punishment in deciding whether the protections of the Double Jeopardy Clause are invoked. See Brewer v. Kimel, 256 F.3d 222, 225 (4th Cir.2001) (citing Hudson, 522 U.S. at 100, 118 S.Ct. 488).

Recognizing that civil remedies occasionally rise to the level of criminal punishment, the Supreme Court has set forth a two-part test to guide lower courts in making this determination. See Nivens v. Gilchrist, 319 F.3d 151, 158 n. 10 (4th Cir.2003); Brewer, 256 F.3d at 225-26. First, as a matter of statutory construction, courts must examine whether Congress "`in establishing the penalizing mechanism, indicated either expressly or impliedly a preference'" for the sanction to be criminal or civil. Hudson, 522 U.S. at 99, 118 S.Ct. 488 (quoting United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). In order to determine the criminal or civil character of a particular sanction, the court must begin by analyzing the statute's text and legislative history. Seling v. Young, 531 U.S. 250, 262, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001). Second, even in cases where Congress has indicated an intention to establish only a civil penalty, the court must inquire further as to "whether the statutory scheme was so punitive either in purpose or effect, as to transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Hudson, 522 U.S. at 99, 118 S.Ct. 488 (internal quotation marks and citations omitted). To aid in making this determination, the Supreme Court used the seven-factor test announced in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Hudson, 522 U.S. at 99-100, 118 S.Ct. 488. This seven-factor test, which is not exhaustive and should be applied flexibly, requires that this court consider

(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence"; "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned."

Id. The Supreme Court stated that "[i]t is important to note, however, that these factors must be considered in relation to the statute on its face and only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. at 100, 118 S.Ct. 488 (internal quotation marks and citations omitted). Accordingly, this court will first consider Congress's intent in enacting Article 15 and then apply the seven factors of Hudson.⁶

A. Congress Did Not Intend for NJP to be Criminal in Nature

The first part of the Hudson test — the assessment of congressional intent — requires that the court examine the text and legislative history of Article 15, as well as its discussion in Supreme Court, other federal court, and state court case law. Although by no means dispositive, the title of Article 15, "Commanding officer's nonjudicial punishment," facially labels punishment under this statute as "non-judicial" and thus noncriminal. See 10 U.S.C. § 815; Cochran v. United States, 1 Cl.Ct. 759, 764 (1983). Courts have noted that this title reflects the legislative intent of Congress to distinguish NJP from the military's criminal system. See, e.g., United States v. Gammons, 51 M.J. 169, 177 (U.S. Armed Forces 1999). Furthermore, the text of Article 15 provides that "any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial." 10 U.S.C. § 815(b) (emphasis added). This language also indicates that Congress considered NJP to be disciplinary, not criminal, in nature.

In addition to the statute itself, Part V of the Manual for Courts-Martial, which implements the provisions of Article 15 by Executive Order, "describes NJP as a `disciplinary...