Here’s a link to an absolutely fascinating opinion by United States Magistrate Judge Thomas Rawles Jones, Jr., of the Eastern District of Virginia holding that it would be a due process violation for a federal court to convict a Marine of a drunk driving offense for which he had already received NJP. United States v. Espinosa, No. 1:10mj453 (E.D. Va. Dec. 2, 2010).

41 Responses to “Fascinating Eastern District of Virginia ruling that NJP precludes subsequent federal prosecution for drunk driving”

  1. Phil Cave says:

    The court does not seem to have addressed Pierce, 27 M.J. 367 (C.M.A. 1989).

  2. Phil Cave says:

    And check out: United States v. Burns, 29 F. Supp. 2d 318 (E.D.Va. 1998), which does cite to Pierce. [Sorry my blue booking’s off — as usual.]

  3. Tami says:

    Pierce was not a “minor offense” case, and Burns was limited to the Double Jeopardy issue, so I think this case can be distinguished from those cases. The judge is correct in saying that prosecution is barred for a minor offense which was the subject of NJP under R.C.M. 907(b)(2)(D)(iv). Also I think the differences in the punishment available at a civilian court (which can’t order reduction in grade, extra duty, or restriction) and NJP would give any civilian court pause; it’s a pain to do the conversion.

  4. Hack says:

    I am as much of hack as the next guy, but why did the SAUSA seek a Federal case? Boredom, spite, aggravating factors not known at the time of the NJP? If the Big G wanted a federal conviction, they could have gone right to a c-m. Although I disagree with the law in this case, the fact specific outcome seems to be a righteous smackdown on what – without more info – seems to be straight up G overreaching.

  5. Gene Fidell says:

    According to PACER, Espinosa was represented by William Todd Wilson of the Federal Public Defender’s Office in Alexandria.

  6. Phil Cave says:

    Tami, agreed. But isn’t a DUI a serious offense when discussing the “minor” or serious offense issue. Wasn’t there a case just recently that discussed the minor/serious issue in light of the RCM provision? Sorry, having a Mario Moment on that.

  7. Michael Lowrey says:

    Phil, from the opinion in this case: “The parties here agree that the offenses at issue are “‘minor offenses.’” (Bottom of page 3 of the opinion.)

  8. W says:

    I think the mere fact that the case went to NJP prohibits the government from arguing that this DUI was a serious offense. Article 15(f) clearly states that serious offenses are not properly punishable under Article 15 – and the government would be faced with arguing both that the offense was minor enough for NJP to be reasonable, and too serious to be considered minor under RCM 907.
    Sounds like a losing argument to me…

    The real issue in these cases is the absolute lack of a clear reporting mechanism that would get a DUI conviction on someone’s record. The judge is correct that the military could easily report the convictions to the licensing authority – but what guidance is out there on how to do that? Seriously, I’d like to know…

    I’m fearful instead that the ugly truth is that most court-martial convictions never get properly entered in NCIC, ever.

  9. Friend says:

    W- NJP is not a conviction – merely an administrative punishment (although it feels like a conviction I am sure to those receiving it)! Another strange anomoly in parlance/syntax…in the naval service, such punishment is awarded…like its a good thing…Actually, if I am not mistaken, such ruling by the fine judge in Espinosa would be in accord with California state law regarding former punishments.

  10. ms says:

    W,
    The truth isn’t that ugly. Don’t know what guidance is out there, but, at least in the AF, reporting is commonplace.

  11. W says:

    That is true, Friend. I see how my imprecise use of languge reads as if I meant conviction at NJP. I shifted lines of thought without saying so and actually meant the rest of my commments to reflect what I perceive to be a disconnect between court-martial convictions and entry of that conviction into an indiviuals criminal record (or notification of a state drivier licensing authority).

    I am also amused by the notion that punishment is “awarded.”

  12. Anonymous says:

    The AUSA’s actions seem to call into question the role of the judge advocate as advice giver vs. decision maker. The commander was presumably given advice and then made the command decision to handle the matter via NJP. Would love to learn more facts to know if legal tried to out-manuever a commander or if the commander second-guessed his own NJP offer and supported the prosecution, or if something else entirely occurred.

  13. Friend says:

    Oh boy – the chance to speculate has arisen! I suspect that the commander whom imposed NJP had zero/nada/zippo to do with a decision to prosecute in an Article III court. I will bet a Dunkin Donut that a hyped up SAUSA pushed this one through for their own self-aggrandizement. Gosh – I hope I spelled that correctly. I am guessing that the young SAUSA believed that the paucity of punishment at NJP did not fit the offense charged.

  14. WaLegal says:

    A similar case is up in Western District of Washington for the issue of NJP followed by Federal Court. Magistrate and District Judges ruled it was not Double Jeopardy and case is at the 9th Circuit now. Interesting docs on PACER to review:

    WAWD
    Magistrate: CR09-5883JRC
    District: 3:09cr5883JBL
    9th: 10-30313

  15. Phil Cave says:

    WL: PACER doesn’t like your numbers?

  16. Phil Cave says:

    United States v. Reveles, 3:09-cr-05883-RBL-1

  17. FormerTC says:

    Hack,
    Check out footnote 2. It appears this may have been common practice at MCB Quantico.

  18. JWS says:

    Will someone enlighten an Old Corps fogey as to why on earth this happens at all? Whatever happened to unity of command? Why does the local USA get to second-guess the CO?

  19. Anonymous says:

    As a DC, if this were the practice in my jurisdiction I would advise PERSREPs that they might be better served refusing NJP. Then the Marines can choose between Court Martial or Article III. Probably piss off the MOJO something fierce.

  20. Michael Lowrey says:

    JWS, I’m going to go out on a limb here: Footnote 2 suggests that the military bases in the Eastern District of Virginia may have some sort of standing arrangement with the local U.S. Attorney about how to handle (at minimum) on base DUIs. So it may well not be a case of the USA second-guess the CO but rather the CO offering NJP knowing that the local USA will press charges (and likely with a military lawyer even acting as SAUSA).

  21. Phil Cave says:

    And what’s the betting that the SJA, SAUSA are both located in the same building, with the defense counsels in the basement, such as Lejeune Hall.

  22. Charles Gittins says:

    I think ret BG Mike Rich works at EDVA. Maybe he is pulling the strings?

  23. JWS says:

    OK, why do I think this stinks? I am a lawyer for 33 yrs, but never in military courts. I am, however, a former SNCO & can see this from the troop’s point of view. Just what is going to happen to unit cohesion if the brass play this game? The troop screws up, agrees to Mast, & takes his lumps from the CO. And he — and all the troops in his battalion — find out he was conned by his CO? This is Marine Corps leadership these days?
    And when some officer says “follow me” in to Hell, … ?

  24. John O'Connor says:

    When I was in, you had to get CG approval to NJP any offense that was being handled in civilian court. Here, it looks like that provision (assuming it still exists) got avoided by doing the NJP first.

  25. Bridget says:

    Hmm. Well, I guess this concern about civilian prosecution might encourage defense counsel giving Article 15 advice to expand their discussion.

  26. MM says:

    This issue isn’t new in that court. Having served as a part-time SAUSA in Norfolk, I can tell you the two decisions – command decision to NJP and SAUSA decision to prosecute – are entirely separate. There is no conspiracy to dupe the svm and get him/her twice. Each decision process is uneducated about the other until the svm comes into his DUI trial and tells the judge he was already NJP’d. I’m not necessarily saying that’s right or that the USG shouldn’t maybe be required to communicate among itself better, but that’s the reality of it in practice. SAUSA sits downtown segregated from Navy, and all the SAUSA has is a case file on a DUI arrest which looks appropriate to prosecute, esp given the benefits of a conviction wrt driving record and deterrent effect on future DUI offenses. Let’s not forget that the guidance to commanders pursuant to JAGMAN is that they need only seek permission to NJP AFTER civilian conviction (in a state court). Back in ’06 I recall Fleet Forces had put out a message specifically reminding CO’s that they were not prohibited from imposing NJP prior to civilian conviction. Interestingly, JAGMAN specifically prohibits NJP following federal conviction (but doesn’t specifically address the reverse situation of federal conviction following NJP). Nothing seems to prohibit an AUSA from prosecuting post-NJP and nothing requires him/her to even consider the NJP, except the Constitution I guess according to Judge Jones.

  27. MM says:

    My mistake – same district, different court. In Norfolk, this issue was addressed by one of the judges in approx ’07 with same result as WaLegal above.

  28. Tami says:

    But double jeopardy is a separate issue from due process. Double jeopardy prohibits being prosecuted for the same crime twice (NJP is not a prosecution) as well as double punishment, which is why the SM must get credit for NJP served when prosecuted for the same offense (Pierce). This due process issue addresses whether it’s fair to tell SM he avoids prosecution for a minor offense if he takes NJP–the court’s position is no, that’s not fair.

  29. JAG_1 says:

    Why are DUI/DWIs ending up in federal court? Instead of pointing the finger at some hungry SAUSA and SJA, perhaps (crazy thought) it has to do with the fact that the MPs are issuing 1805s to all DUI/DWIs?…

    Why? Perhaps because the base CO believes that these are serious offenses for which all, military and civilian, officers and enlisted, should face the same consequences from a single source instead of letting each unit CO on base decide what the proper level is?

    How is that not, in the end, a fair and even handed result?? In fact, how is letting a base traffic court deal with administrative sanction and then the CO with NJP or higher a fair result, when a dependent or DoD employee would end up in District court for the same set of facts?

    Discuss.

  30. Another JA says:

    Mr. Cave: you do in fact know that the SAUSA prosecutes cases, and works out of, the US Attorney’s office in Alexandria.
    Also, you do know that the authority (indeed, the discretion) to issue 1408 v. 1805 citations (and hence whether one ends up in federal court) stems from both MCO 5110.1D and 5580.2B. The installation commander issues guidance to PMO on what citations to issue. Additionally, the LEGADMINMAN specifically encourages NJP before civilian conviction due to the delay games, but requires approval for NJP AFTER cilian adjudication. Surely you have read these references before?!

    Why issue 1408 to active duty military, with the relatively lenient outcome, and 1805 to everyone else? I say issue 1805 to all DUI/DWI, and end up with a fair, consistent and level result for all. 1408 should be reserved for simple non-moving and some minor moving violations.

  31. JWS says:

    Wow!! After all these months Another JA wades in.

    … the LEGADMINMAN specifically encourages NJP before civilian conviction due to the delay games, …

    I see, so all that talk about the presumption of innocence is just so much talk. Heaven forfend that a troop should be treated fairly. Great leadership concept, that.

  32. Phil Cave says:

    So, LEGADMINMAN punishes a Marine who is in all probability going to exercise his rights in civilian court? What the prosecution may see as “delay games (your words),” an accused and his lawyer might see as a legitimate exercise of his/her rights? Para. 4001.3., seems to presume that officers delay —

    In such cases, commanders should consider the option of immediate nonjudicial punishment proceedings. This technique can speed the ultimate resolution of a drunk driving offense for Marine Corps purposes, as well as having a salutary effect on the disposition of the civilian court (the LEGADMINMAN words), case by removing the very reason for postponement.

    I take it there is some evidence for this rather broad statement? Could we see it please.

    And, the threat of which is interfering in the civilian court process, because it is intended to pressure an accused in federal court to forgo a legitimate right? This may be worse than it seems? Para. 4001.3 is an admission of intending to affect the outcome of the civilian court proceedings, is it not? Is that a valid and ethical use of the NJP power? I think your point raises more questions than you intend it to answer.

    Also, another point of interest. The policy you refer to appears only in the officer misconduct chapter of the Manual. Is the policy also reflected in the enlisted chapter (that’s in Chapter 3)(or did I miss something)? And for the cases dealt with in the FedMagOp., were the accused’s all enlisted people or all officers, or a mix?

    If it included enlisted? Why are you applying an officer provision on policy to enlisted personnel? And I apologize if I failed to read the regulation completely and accurately and missed how it specifically applies the same policy to enlisted personnel, but what’s the reason for unequal treatment of officers, again assuming I didn’t gloss over application of the policy to enlisted personnel? I assume that the drafters would have said it covers officers and enlisted, or officers and enlisted in the paygrade E-7 and above, if that’s what they intended.

    If the commands have been applying the policy incorrectly to enlisted personnel, what steps have been or will be taken to educate the commands to the proper application of policy. Can’t we read the manual to require commands to wait and not do an NJP if it is an enlisted person?

  33. Another JA says:

    JWS: Defense counsel will use tactics as appropriate to ensure the best result for the client. Sometimes a delay will help ensure that the state trooper or county deputy is not in court. That says nothing about the client’s presumption of innocence. If the client wishes to refuse NJP, he has the same chances at a court-martial as he does out in town. So then, why do they often accept NJP?

    Mr. Cave: commanders apply the officer guidance to all because they can, and nothing in Ch 2 says they can’t. While Ch 3 is specific to officers, the general philosophy is just as applicable to enlisted: quick disposition of cases to reinforce the message “drunk driving is not tolerated and will result in swift consequences”. The manual is guidance (“commanders should consider the option…” and not “commanders must exercise the option” of NJP) to stress the importance of dealing with officer cases quickly, for officers are meant to be an example to follow. By quickly dealing with officer misconduct, the command sends the signal to all members that those held to a higher standard are in fact dealt with at that higher standard. Again, if the officer feels his innocence is beyond question, that officer can refuse NJP. So no, NJPing enlisted personnel in that fashion is not due to commands applying the policy incorrectly.

    It’s funny actually that you should ask why the double standard against officers, when normally it’s enlisted complaining that officers are given the benefit of rank. Policies like Ch 3 are intended to address that perception of “Rank has its privileges”.

  34. JWS says:

    Another JA: you miss my point. If the CO offers NJP & the troop takes it — that’s a deal. For the troop to later find himself a defendant in the US Dt Ct means the troop was betrayed by his CO. THAT is dishonorable — both as an officer & as a lawyer. It is also rotten and stupid leadership.

    I am old enough to recall when a large portion of the JAG officers in WestPac found themselves leading platoons and companies in combat. You treat the troops like this and then expect them leap in to Hell when you say “Follow me?”

    I am reminded of Patton’s famous aphorism about loyalty.

  35. Another JA says:

    JWS: I didn’t miss the point, I just disagree with you. My point is, the lower level CO has no control over whether a Marine gets an 1805, but (s)he knows that discipline is best served in the unit by swift action.

    Defense counsel must concentrate of each individual defendant and not worry about anything else, essentially; that’s normal. COs must look at the overal picture. Appreciate the lesson on leadership, though Patton was clearly not always the one to give lessons. Patton’s quote talks about loyalty from the top down, yes, but that is not to say that a CO must be loyal to each individual to the detriment of his other troops; he also has a greater duty of loyalty to his overall command, and that duty may be best served by offering NJP.

    Don’t worry, because defendants that were also NJP’ed receive credit if found guilty in district court, and they also will be counseled about the fact that the 1805 does not go away if they accept NJP (in fact, I thought they were already).

  36. JWS says:

    Methinks you do miss my point. I am not talking about discipline — I am am talking about unit cohesion. You mistake the means for the ends. Treating the troops unfairly undermines cohesion & is rotten discipline, by the way.

    So, the skipper can impose NJP & then the base commander gets another bite? This is fair? The base commander thinks this is good leadership? The company commander knows the base CO will refer to the US Dt Ct, but does NJP anyway? And (s)he thinks the troops will not see this for what it is?

    If the general officers think DUI is too important to leave with the company commander, then just issue a base order reserving the issue to the base CO.

    Frankly, I am surprised that all you officer-types think this is honorable.

  37. Another JA says:

    I started typing a response but realize that this is going nowhere. I guess we “officer-types” lack honor and are obtuse as well. Best,

  38. JWS says:

    Well, OK, be that way. I wasn’t calling y’all any names. I was asking, rhetorically, why this policy is considered honorable. Because, in my view, it is not. And dealing dishonorably with the troops seriously erodes unit cohesion.

    I am not an officer & never have been. But I was a SNCO, spent a fair number of years in the fire service and 33 years as a lawyer. If a firefighter was double-dealt this way, public sector labor law would have rapidly set things aside — and the leaders who double-dealed the troop would be subject to sanction. It would cost the fire district a lot of money, including tidy fees for several lawyers.

    As lawyer, it is my view this policy is dishonorable. Indeed, a major reason why people hate lawyers is the perception (not wholly unfounded) that lawyers use sophistry to justify this sort of thing.

    Just because a policy is, or may be, lawful does not mean the policy is wise, good leadership, or honorable. The mission is war and the first thing to accomplishing the mission is unit cohesion.

  39. Another JA says:

    It so happens that one of my SNCOs got a DUI in 2007/2008. As luck would have it, we are now again stationed together. I just pulled him into my office, and we went over your arguments. He doesn’t buy them anymore than I do. He particularly does not see your arugment about unit cohesion.

    Why? Absent an NJP, the rest of the command would be oblivious about the DUI charge out in town (federal or state court makes no difference). Next, even if the commander imposes NJP while the trial is pending, the only person that would be sore about it is the defendant, and perhaps his buddies may feel some sympathy; the rest of the command is more likely to want to smack the defendant on the side of the head (figuratively) and say “don’t you know better?”, rather than feel the command is disloyal to them. And, at the risk of sounding like a broken record, our good defendant can always refuse NJP; this may sound like a detail to you, but it is the best argument the defendant can make to protect his rights. With advice from counsel and having an 1805 in hand (i.e. on notice that there will be a district court appearance) the defendant is in the best position to decide whether the NJP will be unfair or not.

    To use an example my SNCO came up with: change the charge from DUI/DWI to drug possession. Do you still think the CO should do nothing, or wait until after the trial out in town? Meanwhile, our presumed innocent PFC Schmuckatelli is up to his antics without consequences, while the rest of the command wonders why. Worse, someone just might get the idea that there are no consequences.

    Since NJP is no bar to court-martial, I can’t imagine what your reaction would be if the case out in town is thrown out and the CO decides to impose SpCM… OK, I’m just fishing for a reaction now!

    Point is, we will have to agree to disagree about the leadership value of a pre-trial NJP.

  40. SgtDad says:

    Well, my first concern is that you, your SNCO, & the hypothetical CO are all just assuming guilt from the get-go. Office hours, federal prosecution, SpCM, etc. are just bureaucratic nonsense to be manipulated to get the guy. Great leadership, that.

    I willingly defer to your SNCO’s better knowledge of his troops. But unit cohesion is a process and only rarely is it impaired by one error. I can say that the troops in the units I served in would not have seen it that way — though I admit that was many years ago. That said, I also have access to Marines with recent experience — including JAG types. They think this stinks, too.

    Just so’s I understand: you assert the Corps may:
    1. Offer the troop Office Hours;
    2. Allow the troop to accept & take his lumps; THEN
    3. Refer the troop to the US Atty for prosecution;
    4. US Atty prosecutes & case is dismissed for whatever reason; AND THEN
    5. Base CO/CA refers for SpCM?

    If so, please advise:
    1. Why this is fair to anyone imbued with common law doctrine;
    2. Why the troops would not view such a persecution for what it is and conclude “due process of law” is a farce;
    3. Why this is good leadership — or why the troops should respond favorably to the officers involved when the say “follow me;”
    4. How this sort of decision making comports with basic principles of military honor;
    5. Why any lawyer participating in this farce would think this honorable practice for a lawyer.

    Additional question: Why are the actions of the CO & Base commander not “disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes?”

  41. Another JA says:

    My last post, since this is getting absurd.

    1- About everyone assuming guilt: How many people here think COs like to waste their time? No one. Good. So, please explain to me why a CO would NJP Marine unless he thought the Marine was in fact guilty? Do you really think the CO is on a fact finding mission at NJP?! No, he already received the reports from the first supervisor on up, and has already determined that the offense has been committed; if he didn’t, he would not try to NJP the Marine. What the CO does through NJP is afford the Marine the chance to present his case directly to him, and absent the Marine having an ace up his sleeve, CO will normally find the Marine guilty. What’s more, all Marines know this (and I presume this goes for other branches). So Marines accept NJP when they know they are guilty and opt to go for a lesser forum with known cap on punishment and no conviction. When the Marine is not guilty, or believes he can’t be found guilty at trial, he will refuse NJP. Now the ball is in the CO’s court.

    2- You have the timeline all wrong. It’s:
    a- Marine is pulled over weaving or some such; fails sobriety test; blows 0.08 BAC or greater. If on base, he is issued an 1805. At this point, Marine already knows he’s going to Alexandria. Or, if off base, Marine gets his license suspended, and he also knows he’s off to state court.
    b- CO gets wind of either the 1805 or the state arrest. Decision is made to offer NJP to the Marine after preliminary review of the evidence. Marine has the choice to refuse. Beforehand, Marine is afforded the opportunity to discuss his options with a JA.
    c- If the case out in town is dismissed, CO again has a choice of determining why the case was dismissed (want of prosecution, such as when the trooper is unable to come to court is one thing; because the evidence was dorked up and the case is just no good is another) and decide whether to let it go. If he chooses to not let it go, CO has to ask permission from higher to prosecute. If the case was in fact tried, CO would have to ask for permission to go further, and I don’t think that happens much at all.

    Why is this fair? Since I’m the slow one in the bunch, apparently, you educate me. But I would say that a case that is dismissed due to a scheduling conflict, because a trooper can’t make a hearing is quite different from a case where the evidence just isn’t there. If a CO feels the Marine has effectively gotten away with it, it’s his call to make.

    Due process will mean different things to different people. Some people are offended that double jeopardy does not apply to concurrent state and federal prosecution. Others aren’t. But just throwing “due process” around doesn’t prove the lack of due process. Analyze that claim a little further, perhaps. But if this truly offends everyone’s (except mine apparently) notion of due process, then why is this state of affair allowed to go on in the MCM? In fact, Art 15 is specifically forbidden when trial at the federal has taken place, and when state trial has taken place it requires authorization under regulation. Considering that if found guilty at trial the judge takes into consideration the punishment at NJP, it’s not as if the individual is punished twice; of course, if the punishment allowed in court is greater than that at NJP, and the judge ends up maxing the defendant out when you add the NJP punishment to the court sentence, the result is no more or less unfair than a defendant that gets maxed at in court without the NJP.

    The leadership argument is getting tiresome by now. Kindly spare me that one, I have nothing further to say that I haven’t said before, and apparently neither do you have anything fresh to say.