U.S. v. Rice, 80 M.J. 36

First Principles: Jurisdiction: Generally

1. in addition to state criminal systems, military members are subject to the concurrent jurisdiction of the federal civilian criminal system and the military justice system
2. while the federal criminal system charges offenses under Title 18 of the US Code, which offenses must be connected to one of Congress’s constitutionally enumerated powers to confer jurisdiction, the military justice system charges offenses under Title 10, which depends only upon the status of the accused for jurisdiction
3. based on principles of federalism and comity towards state governments, federal jurisdiction over criminal offenses requires a federal nexus as an element of the offense, known as the jurisdictional element; jurisdictional elements tie the substantive offense to one of Congress’s constitutional powers, thus spelling out the warrant for Congress to legislate
4. jurisdictional elements, like any other, need to be pleaded and proven, and Congress can and does criminalize the same conduct under different states based on different harms

First Principles: Constitutional Matters: Double Jeopardy

1. the Double Jeopardy Clause bars a federal sovereign from using 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, and the remedy for a successive prosecution is dismissal
2. the Fifth Amendment provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb; the general bar on successive prosecutions is made particular in the military through Article 44, UCMJ, RCM 907(b)(2)(C)
3. the prohibition against double jeopardy not only protects against multiple punishments for the same offense, but shields individuals from the harassment of multiple prosecutions for the same misconduct; it also forbids successive prosecution and cumulative punishment for a greater and lesser included offense
4. the double jeopardy prohibition applies only where the same act or transaction is involved; and in examining whether two statutory crimes are the same offense for purposes of the Fifth Amendment, the test for whether the same act or transaction constitutes a violation of two distinct statutory provisions is whether each provision requires proof of a fact which the other does not; this test is also used to determine whether one offense is a lesser included offense of another and therefore barred by double jeopardy; if two offenses have the same elements, those offenses are the same offense and double jeopardy bars successive prosecution; and whether two offenses are the same is determined through a strict facial comparison of the elements
5. where the conduct and mens rea charged under Article 134, UCMJ, are proscribed by directly analogous federal criminal statutes, the jurisdictional element of the Title 18 offense is not considered for purposes of determining whether it is the same offense as, or a lesser included offense of, the Article 134, UCMJ, offense
6. there is a distinction between substantive elements and jurisdictional elements; and those differences are valid ones when determining what constitutes the same offense for purposes of a double jeopardy analysis involving Article 134, UCMJ
7. a single sovereign cannot escape double jeopardy’s confines by successively prosecuting an accused for the same or a lesser included offense in two different judicial systems that draw their authority from the same source
8. the same misconduct can be the basis for prosecution under separate statutory provisions of different sovereigns because the same act, by transgressing the laws of two sovereigns, creates a duality of harm
9. the same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government
10. in this case, the civilian possession offense of child pornography under 18 USC § 2252A was a lesser included offense of the offense of child pornography charged under Article 134, UMCJ; the Article 134, UCMJ, offense as charged wholly encompassed the civilian possession offense and required the government to additionally prove the conduct was service discrediting, thus making it the greater offense; accordingly, the military possession specifications were thus barred by both Article 44, UCMJ, and the Fifth Amendment’s Double Jeopardy Clause
11. in this case, where (1) appellant was convicted in federal court for possessing child pornography in violation of 18 USC § 2252A, (2) appellant subsequently pleaded guilty in a court-martial to possession of the same child pornography in violation of Article 134, UCMJ, and (3) the federal court later dismissed the possession offense as a double jeopardy violation, this remedy was insufficient; regardless of the federal court’s action, appellant’s court-martial was a successive prosecution barred by double jeopardy and the possession offense had to be dismissed
12. the Double Jeopardy Clause is a guarantee against being twice put to trial for the same offense; a successive prosecution is a distinct wrong because it forces an accused to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense; where the State makes repeated attempts to convict an individual for an alleged offense, the only available remedy is the traditional double jeopardy bar against the retrial of the same offense

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. where the conduct and mens rea charged under Article 134, UCMJ, are proscribed by directly analogous federal criminal statutes, the jurisdictional element of the Title 18 offense is not considered for purposes of determining whether it is the same offense as, or a lesser included offense of, the Article 134, UCMJ, offense
2. Article 134, UCMJ, the General Article, is an expansive, flexible, and amorphous prosecutorial tool within the military justice system with no analog in Title 18; intended to serve as a means for a military commander to meet and enforce the exigencies of military discipline, it requires a finding that (1) the accused did or failed to do certain acts, and (2), proof that the accused’s conduct was to the prejudice of good order and discipline in the armed forces, of a nature to bring discredit upon the armed forces, or a crime or offense not capital; the General Article can thus be used to vindicate particular military interests either via the first two terminal elements or to assimilate wholesale any Title 18 offense not capital into the military justice system using the third terminal element; the exceptionally broad statutory language and potential for abuse is balanced, in large part, by an appellate court’s duty to constrain it
3. there is a distinction between substantive elements and jurisdictional elements; and those differences are valid ones when determining what constitutes the same offense for purposes of a double jeopardy analysis involving Article 134, UCMJ

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. there is no evidence that Congress intended Article 134, UCMJ, to serve as a vehicle for the military to reprosecute Title 18 offenses tried in a federal civilian court simply by removing a jurisdictional element and charging it as a violation of clause 1 or 2
2. in this case, the civilian possession offense of child pornography under 18 USC § 2252A was a lesser included offense of the offense of child pornography charged under Article 134, UMCJ; the Article 134, UCMJ, offense as charged wholly encompassed the civilian possession offense and required the government to additionally prove the conduct was service discrediting, thus making it the greater offense; as such. the military possession specifications were thus barred by both Article 44, UCMJ, and the Fifth Amendment’s Double Jeopardy Clause

Core Criminal Law Subjects: Defenses: Former Jeopardy

1. the Double Jeopardy Clause bars a federal sovereign from using 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, and the remedy for a successive prosecution is dismissal
2. the Fifth Amendment provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb; the general bar on successive prosecutions is made particular in the military through Article 44, UCMJ, RCM 907(b)(2)(C)
3. the prohibition against double jeopardy not only protects against multiple punishments for the same offense, but shields individuals from the harassment of multiple prosecutions for the same misconduct; it also forbids successive prosecution and cumulative punishment for a greater and lesser included offense
4. the double jeopardy prohibition applies only where the same act or transaction is involved; and in examining whether two statutory crimes are the same offense for purposes of the Fifth Amendment, the test for whether the same act or transaction constitutes a violation of two distinct statutory provisions is whether each provision requires proof of a fact which the other does not; this test is also used to determine whether one offense is a lesser included offense of another and therefore barred by double jeopardy; if two offenses have the same elements, those offenses are the same offense and double jeopardy bars successive prosecution; and whether two offenses are the same is determined through a strict facial comparison of the elements
5. where the conduct and mens rea charged under Article 134, UCMJ, are proscribed by directly analogous federal criminal statutes, the jurisdictional element of the Title 18 offense is not considered for purposes of determining whether it is the same offense as, or a lesser included offense of, the Article 134, UCMJ, offense
6. there is a distinction between substantive elements and jurisdictional elements; and those differences are valid ones when determining what constitutes the same offense for purposes of a double jeopardy analysis involving Article 134, UCMJ
7. a single sovereign cannot escape double jeopardy’s confines by successively prosecuting an accused for the same or a lesser included offense in two different judicial systems that draw their authority from the same source
8. the same misconduct can be the basis for prosecution under separate statutory provisions of different sovereigns because the same act, by transgressing the laws of two sovereigns, creates a duality of harm
9. the same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government
10. in this case, the civilian possession offense of child pornography under 18 USC § 2252A was a lesser included offense of the offense of child pornography charged under Article 134, UMCJ; the Article 134, UCMJ, offense as charged wholly encompassed the civilian possession offense and required the government to additionally prove the conduct was service discrediting, thus making it the greater offense; accordingly, the military possession specifications were thus barred by both Article 44, UCMJ, and the Fifth Amendment’s Double Jeopardy Clause
11. in this case, where (1) appellant was convicted in federal court for possessing child pornography in violation of 18 USC § 2252A, (2) appellant subsequently pleaded guilty in a court-martial to possession of the same child pornography in violation of Article 134, UCMJ, and (3) the federal court later dismissed the possession offense as a double jeopardy violation, this remedy was insufficient; regardless of the federal court’s action, appellant’s court-martial was a successive prosecution barred by double jeopardy and the possession offense had to be dismissed
12. the Double Jeopardy Clause is a guarantee against being twice put to trial for the same offense; a successive prosecution is a distinct wrong because it forces an accused to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense; where the State makes repeated attempts to convict an individual for an alleged offense, the only available remedy is the traditional double jeopardy bar against the retrial of the same offense

Trial Stages: Appeals: Remedies › Generally

1. the Double Jeopardy Clause bars a federal sovereign from using 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, and the remedy for a successive prosecution is dismissal
2. in this case, where (1) appellant was convicted in federal court for possessing child pornography in violation of 18 USC § 2252A, (2) subsequently pleaded guilty in a court-martial to possession of the same child pornography in violation of Article 134, UCMJ, and (3) the federal court later dismissed the possession offense as a double jeopardy violation, this remedy was insufficient; regardless of the federal court’s action, appellant’s court-martial was a successive prosecution barred by double jeopardy and the possession offense had to be dismissed

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a prosecution violates double jeopardy is a question of law that an appellate court reviews de novo

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. the prohibition against double jeopardy not only protects against multiple punishments for the same offense, but shields individuals from the harassment of multiple prosecutions for the same misconduct; it also forbids successive prosecution and cumulative punishment for a greater and lesser included offense
2. in this case, the civilian possession offense of child pornography under 18 USC § 2252A was a lesser included offense of the offense of child pornography charged under Article 134, UMCJ; the Article 134, UCMJ, offense as charged wholly encompassed the civilian possession offense and required the government to additionally prove the conduct was service discrediting, thus making it the greater offense; accordingly, the military possession specifications were thus barred by both Article 44, UCMJ, and the Fifth Amendment’s Double Jeopardy Clause

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

1. the doctrine against unreasonable multiplication of charges is one bulwark against prosecutorial overreach within the military justice system, but it does nothing to guard against successive prosecutions by two arms of the same sovereign for the same conduct, separated by nothing more than a jurisdictional element that simply tethers the offense to one of Congress’s enumerated powers