In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Unfortunately, the military lawyers in the Cabrera case did not do what we would have done. In Cabrera, the military defense counsel properly objected to the second trial but then allowed the second trial to continue without taking any further action to protect his constitutional right to be protected from double jeopardy. They should have filed a Writ and Motion for a Stay of Proceedings pending the resolution of the Writ Petition. That’s what we did in Murillo. Cabrera was convicted and sentenced to confinement. It was on appeal, years later, that the issue of Double Jeopardy was decided in his favor and the charges dismissed. While that decision was being made, Cabrera was in confinement for several years. The case is United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020). (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

NOTE: The Double Jeopardy Clause does NOT prohibit the state and the military from prosecuting you for the same offense(s). This concept comes from the Dual Sovereign Doctrine.

Should you be facing court-martial and the charges are dismissed during the trial, please contact us to discuss your options if there is a potential that the prosecution will make a second attempt to prosecute you on the same charges.

mljucmj@court-martial.com for related appellate issues nathan.freeburg@freeburglitigation.com for representation in a second trial

This case is before the court on defendant’s motion to dismiss (no. 6). At issue is whether the United States government, consistent with the constitutional requirement of due process, may prosecute a military servicemember in a civilian court for a crime committed on a military installation when the servicemember (a) has already received “non-judicial punishment” pursuant to Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815 (“Article 15”); (b) has thereby waived his right to trial by court martial; (c) has not been told that he would be prosecuted in a civilian court anyway; and (d) could have foreclosed both non-judicial punishment and the civilian prosecution by asserting his right to a court-martial. While defendant argues several grounds for dismissal, the court grants the motion on the ground that under the circumstances presented here, this civilian prosecution violates defendant’s right to due process of law under the Fifth Amendment to the Constitution.

Anticipate some change in procedures at Quantico.

The parties stipulated at oral argument that Marine Corps Base Quantico is the only Corps installation on the East Coast, including all Marine Corps installations within the Fourth Circuit, at which servicemembers who are subjected to non-judicial punishment for minor offenses are subsequently prosecuted in federal district court. It does appear, however, that the practice is not unique to this military installation. See United States v. Trogden, 476 F.Supp. 2d 564 (E.D. Va. 2007) (servicemember who accepted non-judicial punishment for driving under the influence of alcohol on the grounds of a Virginia Army base was subsequently prosecuted in civilian court).

The court does not address United States v Pierce, 27 M.J. 367 (C.M.A. 1989). Part of the issue under Pierce would be whether the DUI is a “minor” enough offense.

If the servicemember has elected to receive disciplinary punishment rather than a trial by court-martial for the minor offense, the military may not prosecute the servicemember by court-martial. 2008 MCM Rule 907(b)(2)(D)(iv). This either-or condition of disciplinary punishment or trial by court-martial gives rise to the term “non-judicial punishment” to describe the former.

As to the Pierce issue, Article 15(f) states:

The imposition and enforcement of disciplinary punishment under this article for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this article; but the fact that a disciplinary punishment has been enforced may be shown by the accuse upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

This case conflicts with a decision in United States v. Burns, 29 F. Supp. 2d 318 (E.D.Va. 1998). Burns does cite to Pierce.

While this Court ultimately reaches the same conclusion as the parties, that prior NJP imposed on a defendant for an offense does not subsequently bar prosecution for the same offense by the United States based on double jeopardy grounds, the Court does so after an examination of more recent case law pertaining to the issue, as discussed below. In deciding this case, the Court looks at the analysis in a recent military case, United States v. Gammons, 48 M.J. 762 (1998), where the U.S. Coast Guard Court of Criminal Appeals had before it a case similar to the instant case. There, the defendant had received prior NJP for offenses and was later convicted by special court-martial of the same offenses. The Gammons court ultimately followed the holding in Pierce, and held that “prior nonjudicial punishment of a serious offense does not bar subsequent court-martial for the same offense on double jeopardy grounds.” Id. However, that court expressed in its opinion that it believed there might be changes in military case law required as a result of recent Supreme Court decisions, and that their holding was a result of having to “follow the military rulings until they are modified by [a] higher court.” Id. at 764.

The court finds that NJP is not a “criminal” punishment, and the Burns decision would seem to be more consistent with United States v. McKeel, 63 M.J. 81 (C.A.A.F. 2006).

An airman shot during a disagreement with a fellow airman appeared indecisive about what actually happened in a Rapid City apartment last September. Piland recalled fighting with Santana and holding him in a choke hold, but did not remember statements he made to civilian investigators. He also had no recollection of portions of his testimony before a Pennington County grand jury. Santana initially faced charges in Pennington County for shooting Piland three times. Those charges were dropped and he was turned over to military authorities for prosecution in October.

Rapid City Journal. Referral to court-martial expected soon.

There is no double jeopardy issue – no state prosecution, and even if there was this would be the federal sovereign and state sovereign’s acting independently. The fact that the state decided not to prosecute is not a bar to prosecution at court-martial under the UCMJ. Legally, the Air Force could prosecute even if there’s been an acquittal.