United States v. Rice, 19-0178
| Decision Date | 21 May 2020 |
| Docket Number | Crim. App. 20160695,19-0178 |
| Court | United States Court of Appeals, Armed Forces |
| Parties | UNITED STATES Appellee v. Robert J. RICE, Colonel United States Army, Appellant |
Argued October 16, 2019
Military Judges: Tyesha L. Smith and Andrew J. Glass
For Appellant: Stephen I. Vladeck, Esq. (argued); Lieutenant Colonel Christopher Daniel Carrier and Captain Zachary Gray (on brief).
For Appellee: Major Catharine M. Parnell (argued); Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Williams, and Captain Allison L. Rowley (on brief).
Judge MAGGS filed a separate dissenting opinion.
OPINION [1]
Appellant possessed and distributed child pornography. The U.S Attorney's Office for the Middle District of Pennsylvania thus prosecuted Appellant for violating 18 U.S.C. § 2252A (2006 & Supp. II 2008). A military convening authority subsequently prosecuted Appellant in the military justice system for this same conduct under Article 134 Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). This case thus presents the following issues: First can the federal sovereign use 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? Second, what is the remedy for a successive prosecution? We conclude that the Double Jeopardy Clause bars such prosecutorial practices, Grafton v. United States, 206 U.S. 333 (1907), and that the remedy here is dismissal of the two possession specifications that were tried at the successive prosecution. We then remand the single distribution specification for further review by the lower court.
In February 2013, Appellant's wife contacted local civilian law enforcement to report that she believed her husband was viewing and distributing child pornography. The subsequent investigation uncovered 10, 000 images and videos of child pornography from several of Appellant's electronic devices, including a Hewlett-Packard (HP) laptop and an external hard drive. A digital forensic examination of these devices revealed that Appellant electronically shared some of these images with other internet users via Yahoo! Messenger.
The investigation led to two parallel prosecutions-one civilian and one military. On May 14, 2014, Appellant was indicted in the United States District Court for the Middle District of Pennsylvania for violations of 18 U.S.C. § 2252A(a)(2), (5). Count One of the federal indictment alleged that Appellant possessed material containing child pornography between August 2010 and January 29, 2013, [2] and Count Two alleged that Appellant received and distributed child pornography between January 23, 2013, and January 28, 2013.[3]
On September 17, 2015, the military convening authority referred, inter alia, the following charges and specifications to a general court-martial as violations of clause 2 of Article 134, UCMJ: (1) that Appellant distributed six images of child pornography on the HP laptop between November 30, 2010 and December 6, 2010 (Charge II, Specification 2); (2) that Appellant possessed forty-five images of child pornography on the same HP laptop between November 25, 2010 and January 11, 2012 (Charge II, Specification 3); and (3) that Appellant possessed six videos of child pornography on his external hard drive on November 14, 2010 (Charge II, Specification 4).[4]These specifications referenced the definition of child pornography set forth in 18 U.S.C. § 2256 (2006).
In May 2016, Appellant was convicted in the district court on both counts-possession of child pornography and receipt and distribution of the same in violation of 18 U.S.C. §§ 2252A(a)(2), (5). The Government used both the HP laptop and external hard drive to prove that Appellant possessed "material that contains" child pornography.
These same materials were the basis for Appellant's military charges. Moreover, the dates alleged in the military specifications were wholly subsumed within the time frame charged at the district court: The civilian possession charge covered conduct spanning from August of 2010 to January 29, 2013, while the military specifications targeted Appellant's conduct on November 14, 2010, from November 30, 2010 to December 6, 2010, and from November 25, 2010 to January 11, 2012.[5]
Consequently, on June 20, 2016, Appellant moved to dismiss the military specifications as barred by double jeopardy. The military judge denied the motion. Appellant then entered a guilty plea conditioned on the ability to appeal the military judge's denial of the motion. On October 24, 2016, the military judge, sitting as a general court-martial, convicted Appellant, pursuant to his pleas, of one specification of distribution of child pornography and two specifications of possession of child pornography, all in violation of Article 134, UCMJ. The military judge sentenced Appellant to confinement for five years and a dismissal. The convening authority approved the dismissal and four years of confinement.
Appellant returned to the district court for sentencing on November 10, 2016, [6] where he moved to dismiss the possession charge (Count One), contending it was barred by double jeopardy as a successive punishment due to his sentence for the possession specifications at his court-martial. The Government did not oppose this motion. The district court dismissed Count One and sentenced Appellant to 142 months of imprisonment on the civilian distribution count (Count Two).
Appellant appealed the military judge's ruling on the double jeopardy issue to the United States Army Court of Criminal Appeals (ACCA). United States v. Rice, 78 M.J. 649 (A. Ct. Crim. App. 2018). The ACCA held that the possession specifications violated double jeopardy. Id. at 653-54. The conduct underlying Count One at the district court was possession of child pornography on the HP laptop and the external hard drive spanning the period of August 2010 to January 2013; the conduct underlying the military charges concerned the same materials and fell squarely within that time frame. Id. at 653. The ACCA reasoned that because double jeopardy would bar the Government from charging this conduct under clause 3 of Article 134, UCMJ, it would also prevent the Government from doing so under clause 2 of the same. Id. at 653- 54. The ACCA nevertheless concluded that Appellant received his remedy for this violation when the district court dismissed the possession count prior to sentencing. Id. at 655-56.[7]
We granted Appellant's petition to review the following issue: "Whether the Double Jeopardy Clause of the Fifth Amendment requires dismissal of Appellant's convictions." As to the specifications under the charge alleging possession, we hold that it does.
The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." [8]US Const amend V The prohibition against double jeopardy not only protects against multiple punishments for the "same offence," United States v Dixon, 509 U.S. 688, 696 (1993) (internal quotation marks omitted) (citation omitted), but "shield[s] individuals from the harassment of multiple prosecutions for the same misconduct," Puerto Rico v Sanchez Valle, 136 S.Ct. 1863, 1877 (2016) (Ginsburg, J, with whom Thomas, J, joined, concurring). It also "forbids successive prosecution and cumulative punishment for a greater and lesser included offense." Brown v. Ohio, 432 U.S. 161, 169 (1977). Whether a prosecution violates double jeopardy is a question of law that this Court reviews de novo. See United States v. Hutchins, 78 M.J. 437, 444 (C.A.A.F. 2019).
The double jeopardy prohibition applies only where "the same act or transaction" is involved. Blockburger v. United States, 284 U.S. 299, 304 (1932); see also Ex parte Lange, 85 U.S. (18 Wall.) 163, 168 (1873); United States v. Coleman, 79 M.J. 100, 103 (C.A.A.F. 2019) (). In examining whether two statutory crimes are the "same offence" for purposes of the Fifth Amendment, courts apply the test articulated in Blockburger: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied . . . is whether each provision requires proof of a fact which the other does not."[9] 284 U.S. at 304; see United States v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010) (). Under Blockburger, if two offenses have the same elements, those offenses are the "same offence" and "double jeopardy bars . . . successive prosecution." Dixon, 509 U.S. at 696 (internal quotation marks omitted) (citation omitted). Courts determine whether two offenses are the same through a "strict facial comparison of the elements." Coleman, 79 M.J. at 103.
The Government does not argue that the charges in the district court and military court-martial were based on different conduct. Rather, it argues that because 18 U.S.C. § 2252A contains a jurisdictional element and Article 134 UCMJ, as charged, contains not that element, but the element that the conduct is "service discrediting," the charged offenses are not the "same offence" for purposes of the Fifth Amendment's prohibition on double jeopardy. While a strict application of Blockburger would support the Government's position, we reject the mechanical application of Blockburger to permit successive prosecutions by two distinct criminal apparatuses of the same federal sovereign under the circumstances...
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