We’ve been looking at this week’s fascinating United States District Court for the Eastern District of Virginia decision holding that a prior NJP precludes federal prosecution for drunk driving on a military base.  United States v. Espinosa, No. 1:10mj453 (E.D. Va. Dec. 2, 2010).  But as noted in the comments, in October, a U.S. district court in Washington State reached the opposite conclusion.  Here’s a link to the decision in United States v. Reveles, No. CR09-5883 (W.D. Wash. Oct. 20, 2010).

17 Responses to “A different federal district court’s decision that a prior NJP doesn’t bar federal prosecution for drunk driving”

  1. Cheap Seats says:

    Ah…now a circuit split? What a fun backdoor way of getting a military cert petition grant!

  2. John Baker says:

    Interesting that in a Navy case, the District Court cited the Army’s miilitary justice regulation instead of the JAGMAN as the implementing regulation. For what it’s worth, this case was decided on double jeopardy, the other on due process grounds.

  3. Bill C says:

    No matter which side you agree with, I hope all would agree that this stinks. When a CO says if you take NJP you won’t be court-martialed, there is no way that troop would expect to go Federal Court for the same offense. So now the advice from DC is either turn it down or make sure you get immunity from Federal prosecution.

  4. JWS says:

    Bill C is dead right. Whatever the law, this is bad leadership and bad for unit cohesion.

    I know Ron Leighton & he is a good judge. On this, however, he is dead wrong. To say the the penalties the CO can impose are not criminal is a plain denial of reality.

    How long has this been going on? I do not recall this beig an issue when I was on active duty.

  5. Friend says:

    Bill C and JWS – sorry can follow your train of thought here. Seems like you two are mixing equity and criminal law. Is it “right”…is it legal … does it suck? On the suck meter, its probably a 7.2 IMHO. Is it “right”? – I will leave that for confession. Is it legal – I do think so on a strict reading and understanding the difference between the administrative animal and criminal penalties. Perhaps the defense counsel that advised the lad DID tell him what was in the realm of possibility.

    If I were on the receiving end of loss of pay and rank, loss of liberty and a career killer (for officers for sure)-not sure I could tell the difference.

    Whether beaten with a stick or a stick covered with some statute fancy engraving on it – well, it hurts the same but I am confident its legally different.

  6. JWS says:

    Wait a moment. The CO can put a troop in the brig, reduce him in rank, and forfeit his hard-earned pay. And that’s NOT a criminal penalty?

    And no one thinks this is a serious leadership and unit cohesion problem? Some AUSA can overrule a CO’s judgment that the offense is best handled at Mast & everybody is OK with this?

  7. Tami says:

    Friend:

    Not only do the rules prohibit double punishment for the same offense, they also prohibit the gov’t from prosecuting a servicemember for a minor offense for which NJP was accepted. Essentially, the gov’t offers the accused a deal, where if the accused accepts resolution through NJP, the gov’t won’t prosecute him. The accused lived up to his end of the deal, now the gov’t must do the same.

  8. JWS says:

    Tami —
    Isn’t that how things are done elsewhere? Isn’t the gov’t bounds by its deals?

  9. Christopher Mathews says:

    Friend,

    on a strict reading and understanding the difference between the administrative animal and criminal penalties

    On the one hand, I see the distinction: a servicemember who accepts NJP avoids a conviction, and so in that sense one could argue that he is not being subjected to criminal penalties. On the other, though, he is being punished — that’s the “P” in NJP — under a federal criminal code for commission of a criminal offense under that same code. The distinction is not so clear.

    I think Bill C and JWP have the better point: the government has, by offering NJP and by virtue of the member’s acceptance of that offer, made a deal with the offender to avoid the cost, delay, and uncertainty of a trial. For the same government to then turn around and then prosecute him — even if it is under Title 18 rather than Title 10 — seems to me to be fundamentally wrong.

    If the shoe were on the other foot — if a U.S. attorney cut a deal with a member for a deferred prosecution, for example — I wonder how a federal judge would view an O-4 commander’s decision to court-martial the man anyway?

  10. WaLegal says:

    Also, realize that most of the comment arguments have said “accepted NJP”, this Sailor was on a ship and could not refuse his NJP, so there was no deal making going on between the CO and the troop. Which is a large difference between the VA and WA cases.

  11. Anonymous says:

    Used to be that a “race to the courthouse” was prohibited, but LANTFLT changed the guidance a few years back to allow NJP even when civilian charges were in progress. Here’s the LANTFLEET guidance:

    R 151659Z MAR 06 ZYB PSN 429552I27
    FM COMFLTFORCOM NORFOLK VA//N00//
    BT
    UNCLAS //N05350//
    MSGID/GENADMIN/COMUSFLTFORCOM//
    SUBJ/UCMJ ACTION REGARDING DUI AND DWI//
    REF/A/GENADMIN/COMLANTFLT/041929ZFEB2003//
    REF/B/DOC/JAG/15MAR2004//
    REF/C/GENADMIN/SECNAV/062108ZDEC1996//
    REF/D/DOC/OPNAV/01JUN1995//
    NARR/REF A IS COMLANTFLT GENADMIN 041929ZFEB03. REF B IS JAG INST 5800.7D, JAGMAN ART 0124. REF C IS ALNAV 080/96, DWI POLICY. REF D IS OPNAV INST 3100.6G, SPECIAL INCIDENT REPORTING PROCEDURES.//
    POC/MARIE C PARKER/CIV/FFC ADCO/-/TEL:757-836-3573
    /EMAIL:MARIE.PARKER@NAVY.MIL//
    RMKS/1. THIS MESSAGE CANCELS REF A AND CHANGES FFC POLICY REGARDING DISCIPLINARY ACTION FOR DUI/DWI CASES. REFS B AND C PROVIDE ADDITIONAL GUIDANCE. ACTION ADDEES TAKE FORAC WITH SUBORDINATE COMMANDS.
    2. DUI/DWI CONTINUES TO SERIOUSLY DEGRADE FLEET READINESS. THIS IRRESPONSIBLE BEHAVIOR CAN HAVE FATAL CONSEQUENCES TO THOSE INVOLVED AND ALWAYS PLACES ADDITIONAL BURDENS ON SHIPMATES AND LEADERS. IN PURSUING INDIVIDUAL ACCOUNTABILITY AND TO SERVE AS A VISIBLE DETERRENT, THEODORE ROOSEVELT CARRIER STRIKE GROUP DEVELOPED A PILOT INITIATIVE THAT AUTHORIZED COMMANDS TO ADJUDICATE CASES OF DUI/DWI AT NJP OR COURT-MARTIAL PRIOR TO CIVILIAN\ADJUDICATION. THIS PROVIDED COMMANDING OFFICERS WITH AN ADDITIONAL LEADERSHIP OPTION, REPEAT OPTION, IN ADDRESSING ALCOHOL ABUSE. TRCSG OBSERVED A MEASURABLE DECREASE IN DUI/DWI CASES OVER THE SUBSEQUENT 6 MONTH PERIOD PRIOR TO THE CSG DEPLOYMENT.
    3. BASED ON THE PILOT, COMMANDERS, COMMANDING OFFICERS, AND OFFICERS IN CHARGE ARE AUTHORIZED TO PURSUE NJP OR COURT-MARTIAL FOR DUI/DWI CASES PRIOR TO CIVILIAN ADJUDICATION AS AN OPTION IN THE RESOLUTION OF THIS TYPE OF DISCIPLINARY ISSUE. FOR UNITS DEPLOYED OUTSIDE OF CONUS, THEATER GUIDANCE ON FOREIGN CRIMINAL JURISDICTION CASES STILL APPLIES.
    4. REPORTING REQUIREMENTS:
    A. COMMANDS: IN ORDER TO STANDARDIZE REPORTING AND CAPTURE RELEVANT DATA FOR FURTHER ANALYSIS, INCIDENTS OF DUI/DWI ARE TO BE REPORTED VIA UNIT SITREP USING REF D, ADD COMFLTFORCOM NORFOLK VA/N1/N1FA3/ TO THE INFO LINE.
    B. ACTION ADDEES: COLLECT THE FOLLOWING DATA REGARDING DUI/DWI AND FORWARD TO FFC QUARTERLY. FFC WILL COORDINATE AND PROVIDE FLEET WIDE VISIBILITY OF POLICY RESULTS AND EFFECTIVENESS.
    (1) NUMBER OF DUI/DWI INCIDENTS.
    (2) NUMBER OF DUI/DWI INCIDENTS ADJUDICATED AT NJP/COURT-MARTIAL.
    (3) RESULTS OF THOSE ADJUDICATIONS (REDUCTION IN RATE, FORFEITURE OF PAY, ETC.)
    (4) NUMBER OF DUI/DWI INCIDENTS DEFERRED TO CIVILIAN COURT FOR ADJUDICATION.
    (5) NUMBER OF CIVILIAN CONVICTIONS OF DUI/DWI.//
    BT

  12. Friend says:

    Tami – well, you are partially correct. For this case – I think by definition its a minor offense.

    Take a gander at UCMJ Article 15(f). The critical analysis is whether an offense is “minor” vice “major”. Then one must examine the rules regarding major vs minor. Guidance can be found at MCM, Part V, para 1(e). A critical factor is what may be “imposable” – a quick look at the max punishments for a simple no injury kind of DUI is BCD and 6 mos.

    That having been said – if one WERE punished at NJP then court-martialed for the same or similar offense, it is legitimate but the judge/members would be apprised of that prior punishment and given credit accordingly.

    JWS – generally speaking, @ NJP commanders cannot put their troops in the brig. They can restrict them and or assign extra duties. To many it feels like confinement, but it ain’t the same!

  13. Christopher Mathews says:

    It’s interesting that the courts, facing claims that are essentially identical but brought under different clauses of the same amendment (the Due Process Clause in Espinosa and the Double Jeopardy Clause in Reveles), came to such disparate conclusions. I wonder if the judges would have each ruled differently if the arguments had been cast under the other clause?

  14. W says:

    Mr. Matthews,

    “If the shoe were on the other foot — if a U.S. attorney cut a deal with a member for a deferred prosecution, for example — I wonder how a federal judge would view an O-4 commander’s decision to court-martial the man anyway?”

    I suspect the court would have a hard time swallowing the notion that an AUSA could make the final decision as to what is necessary for good order and discipline in a military unit. I think the doctrine of deferring to military authority in that instance would be hard to for an accused to overcome. But where the military authorities waive off on criminal prosecution, the analysis for the court seems much different.

    JWS – I think the law is pretty settled on the difference between administrative and criminal disciplinary measures (see also, e.g. – professional licensing boards, immigration courts, etc.), regardless of the level of pain one individual may feel.

  15. W says:

    But don’t get me wrong – if I was the kids CO, I’d be pretty hot with the USAO on this one.

    And since on installation DUIs are normally preferred by the SAUSA, a JAG of some type, that individual would be standing tall in front of the desk explaining why the case was going forward.

  16. JWS says:

    JWS – I think the law is pretty settled on the difference between administrative and criminal disciplinary measures (see also, e.g. – professional licensing boards, immigration courts, etc.), regardless of the level of pain one individual may feel.

    Well, I have practiced that sort of law for 33+ yrs (professional licensing), so I know whereof you speak. Almost always the process is the other way around. The Board waits out the criminal process & then decides what (if anything) to do. By they way, SCOTUS calls them “quasi-criminal” proceedings — as does our state. The investigations sections are registered as law enforcement agencies and have access to NCIS, etc. The 4th & 5th Amendments apply. I do not think older cases on this are good law, given that licensing agencies have very punitive powers that were not available when this issue was last considered.

    I may have misunderstood the power a CO has at Mast & that may be the cause of my confusion.

    That said, from a leadership and unit cohesion standpoint, this is just plain stupid. That CO just made a deal and the whole company will know the government welshed. “Follow me” will not have the same effect in the future.

  17. Jimbo Elrod says:

    Several years ago a federal magistrate who heard the “Mag Court” docket refused to take any DUI cases if the Servicemembers were getting 15s instead of coming to court. He felt the servicemembers were getting a better deal unfairly than the civilian populace.