U.S. v. Driskill, 84 M.J. 248

First Principles: Jurisdiction: Generally

1. federal statutory elements requiring that conduct occur in the territory of the United States, or affect interstate or foreign commerce, are typically called "jurisdictional elements"; this phrase, however, is a term of art; the phrase refers to elements that link a statute to a constitutional power of Congress to legislate, not to the jurisdiction of a court
2. a jurisdictional element of a federal criminal statute is jurisdictional only in the shorthand sense that without that nexus, there can be no federal crime; the absence of a required element is not jurisdictional in the sense that it affects a court's subject matter jurisdiction, i.e., a court's constitutional or statutory power to adjudicate a case

First Principles: Constitutional Matters: Double Jeopardy

1. three prohibitions against double jeopardy apply to courts-martial; the Double Jeopardy Clause of the Fifth Amendment provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb; Article 44(a), UCMJ, provides that no person may, without his consent, be tried a second time for the same offense; and RCM 907(b)(2)(C) requires dismissal of a charge or specification if the accused has previously been tried by court-martial or federal civilian court for the same offense
2. one step in applying the three double jeopardy prohibitions is determining whether the accused has been twice put in jeopardy or, stated differently, tried twice; answering this question is sometimes complicated because not every court-martial proceeding counts as a trial for purposes of the Fifth Amendment, Article 44, UCMJ, and RCM 907(b)(2)(C)
3. pursuant to Article 44(a), UCMJ, in the case of a trial by military judge alone, jeopardy attaches on the presentation of evidence; in the case of a trial by member panel, jeopardy attaches when the members have been impaneled; once jeopardy has attached, an accused may not be retried for the same offense
4. under RCM 907(b)(2)(C)(i)(I) and U.S. v. Easton, 71 MJ 168 (CAAF 2012), jeopardy attaches to an offense when the government introduces evidence on the general issue of guilt
5. RCM 907(b)(2)(C)(iv) provides that jeopardy cannot attach if the court-martial lacks jurisdiction
6. another step in applying the prohibitions against double jeopardy in courts-martial is determining whether the accused is truly being tried twice for the same offense; when specifications allege offenses under different statutory provisions, this step requires courts to look closely at the elements of each of the alleged offenses
7. the point in time at which jeopardy attaches is not when a military judge sitting as a court-martial makes a ruling based on the sufficiency of the evidence; instead, jeopardy attaches when the government introduces evidence on the general issue of guilt
8. in this case, jeopardy attached in appellant's first court-martial for violating clause 3 of Article 134, UCMJ, by possessing obscene cartoons in violation a federal criminal statute when the government introduced evidence on the general issue of guilt, and as such, double jeopardy barred him from being tried twice for the same offense in a second court-martial; although the military judge in the first court-martial dismissed the specification for lack of jurisdiction on the ground that the federal criminal statute did not apply extraterritorially to his offense committed overseas, the court-martial did have personal and subject matter jurisdiction to try appellant for that offense because he was a member of the regular component of the armed forces and Article 134 applied in all places
9. in this case, the specifications in appellant's first and second courts-martial concerning obscene cartoons were for the same offense where appellant was first charged under clause 3 of Article 134, UCMJ, with conduct violating a federal criminal statute that included a jurisdictional element and was then later charged with the same conduct under clause 2 of Article 134, UCMJ; because the jurisdictional element of the federal criminal statute must be disregarded where it was not jurisdictional in the sense that it affected the court's subject matter jurisdiction, the two offenses were the same and the Double Jeopardy Clause barred the second prosecution

Core Criminal Law Subjects: Defenses: Former Jeopardy

1. three prohibitions against double jeopardy apply to courts-martial; the Double Jeopardy Clause of the Fifth Amendment provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb; Article 44(a), UCMJ, provides that no person may, without his consent, be tried a second time for the same offense; and RCM 907(b)(2)(C) requires dismissal of a charge or specification if the accused has previously been tried by court-martial or federal civilian court for the same offense
2. one step in applying the three double jeopardy prohibitions is determining whether the accused has been twice put in jeopardy or, stated differently, tried twice; answering this question is sometimes complicated because not every court-martial proceeding counts as a trial for purposes of the Fifth Amendment, Article 44, UCMJ, and RCM 907(b)(2)(C)
3. pursuant to Article 44(a), UCMJ, in the case of a trial by military judge alone, jeopardy attaches on the presentation of evidence; in the case of a trial by member panel, jeopardy attaches when the members have been impaneled; once jeopardy has attached, an accused may not be retried for the same offense
4. under RCM 907(b)(2)(C)(i)(I) and U.S. v. Easton, 71 MJ 168 (CAAF 2012), jeopardy attaches to an offense when the government introduces evidence on the general issue of guilt
5. RCM 907(b)(2)(C)(iv) provides that jeopardy cannot attach if the court-martial lacks jurisdiction
6. another step in applying the prohibitions against double jeopardy in courts-martial is determining whether the accused is truly being tried twice for the same offense; when specifications allege offenses under different statutory provisions, this step requires courts to look closely at the elements of each of the alleged offenses
7. the point in time at which jeopardy attaches is not when a military judge sitting as a court-martial makes a ruling based on the sufficiency of the evidence; instead, jeopardy attaches when the government introduces evidence on the general issue of guilt
8. in this case, jeopardy attached in appellant's first court-martial for violating clause 3 of Article 134, UCMJ, by possessing obscene cartoons in violation a federal criminal statute when the government introduced evidence on the general issue of guilt, and as such, double jeopardy barred him from being tried twice for the same offense in a second court-martial; although the military judge in the first court-martial dismissed the specification for lack of jurisdiction on the ground that the federal criminal statute did not apply extraterritorially to his offense committed overseas, the court-martial did have personal and subject matter jurisdiction to try appellant for that offense because he was a member of the regular component of the armed forces and Article 134 applied in all places
9. in this case, the specifications in appellant's first and second courts-martial concerning obscene cartoons were for the same offense where appellant was first charged under clause 3 of Article 134, UCMJ, with conduct violating a federal criminal statute that included a jurisdictional element and was then later charged with the same conduct under clause 2 of Article 134, UCMJ; because the jurisdictional element of the federal criminal statute must be disregarded where it was not jurisdictional in the sense that it affected the court's subject matter jurisdiction, the two offenses were the same and the Double Jeopardy Clause barred the second prosecution

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

1. a granted double jeopardy issue is a question of law that an appellate court must answer de novo