Here is a link to the government’s notice of appeal of the Magistrate’s decision in US v Espinosa.  As we reported, here, Magistrate Judge Thomas Rawles Jones, Jr. from the EDVA dismissed a series of federal DUI cases after the accuseds in the cases were previously taken to NJP and provided deficient NJP advice, in Magistrate Jones’ opinion, regarding the election to accept NJP. 

Our astute readers will know that the Espinosa case has now been twice dumped by Magistrate Jones, see prior opinion here.  Judge Jones apparently gave the government a second chance and set aside his Dec. 2010 decision after the government asked for reconsideration and put at issue the advice provided the accuseds, see government reconsideration motion here.   Here is a link to the defense motion to dismiss after reconsideration.  It will be interesting to see what the District Judge in the case does with the decision.   

Though CAAFlog contributor Brian Mizer is counsel for Espinosa, I got the notice from our fearless leader.  So we’d appreciate any inside info others could provide on Judge Jones and who will be assigned the case.

14 Responses to “Government Appeals Espinosa Magistrate Decision Criticizing DoN’s NJP Counseling Policy”

  1. John O'Connor says:

    Rawles Jones is a well-respected magistrate judge. He’s not a bomb-thrower, so I suspect his opinions are probably viewed within the courthouse as presumably well-reasoned.

    I could be wrong, but I think the appeal could go to any district judge in the Alexandria courthouse.

  2. Random TC says:

    None of this answers the basic underlying question-why do you double dip on someone? Is this really the position the Govt wants to be in? If you want a federal prosecution, the command should take them to SPCM right from the start, not like they can refuse that one. If you take them to NJP, then it should be either over with counseling post-NJP or to an admin board. Just because you can doesn’t mean you should. The Govt has probably spent more time on these cases already that it bargained for. Maybe there is something drastic I am missing, if so, someone feel free to clue me in.

  3. SgtDad says:

    “Just because you can doesn’t mean you should.”

    Well, truly, & righteously said. Good advice to teenagers, as well.

    Again, I wonder: is anyone thinking about the effect on unit cohesion this has? If the troops get the notion that command will double-tap them and defense counsel will mis-advise them, just what kind of outfit are you going to get?

  4. Ed White says:

    I haven’t had a chance to read the Magistrate’s opinion on reconsideration, but his first effort was not that persuasive. He spent a lot of time talking about what were essentially extraneous facts — and getting a good number of those points wrong — and then announced he was dismissing the charges, without ever really explaining on what authority he was doing so. If the District Judge takes the time to understand the context, I would think the Government has a decent shot at reversal. Seems to me that the right answer is — federal prosecution after NJP is not barred by double jeopardy, so there is no basis there to dismiss the charges, but the accused get credit against any sentence for the punishment imposed at NJP. Why isn’t that the proper resolution here?

  5. Random TC says:

    Captain White, while I agree on no double jeopardy, I am not sure that the NJP could be credited against any sentence in Fed Dst Ct. Federal guidelines on the actual administrative application of a sentence are a myriad of statutes and FBP instructions on sentence computation. A quick review by me, with the caveat that I have little experience with them, didn’t reveal any method of applying NJP punishment to a federal sentence. Maybe you could argue forfeiture of pay be credited against a fine but not sure how reduction in rank or restriction translates to a federal sentence.

  6. Peter Orlowicz says:

    With respect to crediting the NJP punishment against any sentence handed down in federal court, how would you handle any military-specific NJP? Sentence credit works fine if you’re just substituting a month of confinement for a month of jail time, but how would a federal district judge compensate for reduction in pay grade, or forfeiture of pay if the amount of forfeiture is greater than the fine allowable under the federal statute?

  7. Ed White says:

    Good points on the sentence credit. I have no expertise in how the federal sentencing guidelines work, but my understanding is that they are only guidelines, so the judges are free to depart from them where justified. I grant that it is not easy to figure out what restriction, or some other military-unique punishment, is “worth” in terms of credit, but I suppose federal judges are up to the task of assessing how much more punishment is warranted on any particular set of facts, and tailoring their sentences to achieve justice.

  8. Rob M says:

    Judges can depart from federal sentencing guidelines if the departure is justified by the factors listed in 18 USC 3553(a). The judge is required to state, on the record, that he has considered all the 3553(a) factors and explain any justification for departing from the guideline range.

    Among those considerations that might allow for consideration of punishment imposed in NJP are “the nature and circumstances of the offense and the history and characteristics of the defendant,” 3553(a)(1), and “the need to avoid unwanted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 3553(a)(6). Additionally, the judge can deviate from the guidelines if there are aggravating or mitigating circumstances “not taken into consideration by the Sentencing Commission in formulating the guidelines,” 3553(b).

    So even though there’s no quantifiable conversion chart for military-to-civilian punishment, I’d agree with Ed that “federal judges are up to the task of…tailoring their sentences to achieve justice” and add that they have the legal authority to do so.

  9. Eric Coulson says:

    The issue as far as I can see it is not that a Federal Court cannot take into account the punihsment imposed by NJP, but this is an underhanded attempt by the government to get two bites at the apple. It also lets the Government create a hybrid punishment not contemplated by the statues. Civilian court will create a DUI record and impose some punishment, but will leave their career only tarnished by the GOMOR they recive. Concersely the UCMJ allows for reduction of rank and additional duties imposed.

    Moreover the defendants were denied all the information needed to make a proper decision. Would they subject themselves to two processes when, given all of the facts they could have subject themselves to only one?

    When I was a chief of justice the wanted DUI’s dealt with by Commanders; though I thought it was better to deal with DUI’s in civil court it certainly never occured to me to do both.

  10. Not me says:

    After re-reading the judge’s decision, I think that the defendants were seeking the wrong relief from the Federal Court. The judge relied heavily on Fairchild in finding that the military attorney’s advice, as required by OJAG, was deficient. But as Captain White said, I don’t see how you get to dismissal from that.

    I disagree with Captain White in that I don’t think the proper remedy is taking the NJP into account in assessing the sentence either. I think the proper action is for the Marines to have their NJP set aside because of the holding in Fairchild that the advice they received was deficient. That, of course, requires the Marines to petition BCNR, have BCNR deny their relief, and then file for relief in Federal Court, which is a long and drawn out process, but it seems that under the caselaw that is what the proper process here is. Such a decision also obviates the Trogden issue that the judge dismisses with one sentence.

  11. John O'Connor says:

    I agree with Not Me. I think the proper relief for inadequate advice, if any such relief is appropriate, would be invalidation of the NJP. That doesn’t mean the double dipping was good policy, and it’s probably those bad facts that led to a decision I think is probably not strictly correct from a legal standpoint.

  12. SgtDad says:

    “… but this is an underhanded attempt by the government to get two bites at the apple.”

    Exactly. This is what my Marine Corps has fallen to?

    This sort of decision by command comports with what principle of good leadership? And the the troops are supposed to listen when you officer-types say “follow me?”

  13. Cap'n Crunch says:

    The case got rolled to Judge Lee; it is set for hearing on 6/15 @ 9:00 am.

  14. Tami says:

    The defense MTD is not attached–I keep getting the gov’t motion for reconsideration.