Colonel Rice was arrested for possession and distribution of CP. He was convicted in federal court and at court-martial. That is why we have a CAAF decision in United States v. Rice, __ M.J. ___ (C.A.A.F. May 21, 2020).
I think part of the takeaway here is that the Government can’t charge under Clause (1) or (2) of Article 134 where, if charged under Clause (3) would raise a double jeopardy dismissal. There’s more complexity to the case than that, but . . .
All agree, and we cannot ignore, that double jeopardy would prohibit the successive prosecution of the military charges if the Government had charged these offenses under clause 3 of Article 134, UCMJ, alleging a violation of 18 U.S.C. § 2252A.
Slip op. at 8.
[CAAF] 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.
[After federal court conviction 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 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[.]
There is more to come from this case because while CAAF set aside the possession conviction the court remanded the distribution conviction to ACCA for further review.
Of further note was CAAF’s expression of how they view prosecutions under Article 134 which may be helpful in other cases.
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, see William Winthrop, Military Law and Precedents 720–26 (2d ed., Government Printing Office 1920) (1895) (discussing the history, development, and construction of the General Article), it “requires a finding that (1) the accused did or failed to do certain acts,” and (2), proof that Appellant’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.” Manual for Courts-Martial, United States pt. IV, para. 60.b (2008 ed.); see also Anderson, 68 M.J. at 385. The General Article can thus be used to vindicate particular military interests—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 this Court’s duty to constrain it. Cf. United States v. Gleason, 78 M.J. 473, 476 (C.A.A.F. 2019) (recognizing that the Supreme Court expects military appellate courts to act “as checks against [Article 134’s] potentially over-expansive use” (citing Parker v. Levy, 417 U.S. 733, 752 (1974)); see also Parker, 417 U.S. at 754 (noting that the way this Court’s predecessor construed the General Article and Article 133, UCMJ, “narrowed the very broad reach of the literal language of th[ose] articles”).
I can say from personal experience an example of narrowing was the adoption in 1998 of the nonexclusive list of considerations for the prosecution of adultery. Some of us at the time referred to this as the “Ralston Amendment.” See Pentagon Battles with Adultery Controversy, LA Times, 6 June 1997.