An alert reader called out attention to a fascinating case being argued before the Ninth Circuit it Seattle on Friday.  United States v. Stoltz, No. 11-30297.  I’m under the gun tonight, so I don’t have time to summarize the case, which deals with the right to refuse nonjudicial punishment and the exception to that right for those attached to or embarked on vessels.  But here’s the United States’ opening brief, here’s the appellee’s answer, and here’s the United States’ reply.

6 Responses to “Fascinating vessel exception case before the 9th Circuit”

  1. Phil Cave says:

    Quite interesting.
    From after the CGIS “confession,” too late as usual, Stoltz was represented by counsel- moi.

  2. Atticus says:

    After reading only a few pages of the G’s brief, one has to ask what the CG was thinking by imposing NJP on someone who had allegedly received child pornography.  A felony offense under Title 18 that comes with a hefty sentence guideline and they dispose of it via mast? Wow. They made their bed …… 

  3. Darrin K. Johns says:

    I find the Government making an interesting argument in this case that a military member convicted by court-martial for possession of child pornography under Article 134 could still be tried in Federal civilian court for the same act of possession because under Blockburger and Jones, the elements of the CPPA and Article 134 are different so there is no double jeopardy.

  4. Dwight Sullivan says:

    The Supreme Court has rejected reliance on differences in elements of statutes that could be applied to the same act to permit prosecution by both federal civilian and military courts.

    As we previously noted, “For court-martial/U.S. district court double jeopardy purposes, the Supreme Court looks at whether the prosecutions arise from the ‘same acts’ rather than whether the prosecutions are for the ‘same offence’:  ‘the same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government.’  Grafton v. United States, 206 U.S. 333, 352 (1907).”

    http://www.caaflog.com/2010/04/10/hennis-and-double-jeopardy/

  5. WaLegal says:

    Just as an addition, here’s the link to the oral arguments from February 8th in Seattle, WA.
    http://www.ca9.uscourts.gov/media/view.php?pk_id=0000010335

  6. Tereza Ohley says:

    Since I am in Seattle, I had the opportunity to attend this argument. I prepared this quick summary of the case and arguments. 
      
    FACTS:
    In 2008, while Mr. Stoltz was attached to the USCGC ALEX HALEY, he was caught viewing child pornography aboard the ship.  The Coast Guard investigated, and eventually coordinated with the USAO to have the case disposed of in Federal Court.  Right before Mr. Stoltz was to be discharged from the CG in 2009, the HALEY CO decided to take him to NJP for violation of Art 134 (possessing child pornography).  At the time of the NJP, Mr. Stoltz was temporarily assigned (TAD) to a shore command, where he performed duties for the HALEY along with other duties; and the HALEY was undergoing maintenance.
     
    Mr. Stoltz was subsequently indicted on charges of possession of CP in the District of Alaska.  On Stoltz’s motion to dismiss the indictment, the lower court made a finding that the vessel exception did NOT apply in the case (therefore the CG erred in not allowing Mr. Stoltz the right to demand Court Martial before taking him to NJP.)  The court dismissed the indictment, citing double jeopardy and due process concerns.
     
    GENERAL SUMMARY:  Although the lower court grounded its ruling in the factual finding that the vessel exception did not apply in this case due to Mr. Stoltz’s TAD status and the condition of the HALEY at the time of NJP, the 9th Circuit Court seemed most interested in exploring why dismissal of the criminal indictment would be the appropriate remedy, even if Mr. Stoltz had been erroneously denied the right to demand court martial because the vessel exception did not apply. 
     
    UNITED STATES The government’s position was that the vessel exception DID apply, therefore, there was no requirement to allow Mr. Stoltz to demand NJP; further, there are no due process or double jeopardy issues which require dismissal of the indictment as a remedy.  The Coast Guard did not act in bad faith, and even if they had taken Mr. Stoltz to court martial, there would be no double jeopardy because CP charged under Article 134, Clauses 1 & 2 differs from the Federal CP statute under the Blockburger test.
     
    STOLZ The court asked counsel to explain why dismissal was the appropriate remedy, and to expound on the double jeopardy issue.  Counsel supported the due process argument by asserting that members have a statutory right to court-martial.  He further cited a double jeopardy problem in that the appellant was awarded NJP based on not only Clause 1 and 2, but Clause 3 of Article 134, which would necessarily include all the elements of the same Federal statute which was subject of the indictment.
     
    REBUTTAL
    On rebuttal, the government distinguished a member’s right to choose the forum of punishment from the right to have a court martial; the member is not entitled to a court martial; if he demands one, the CG could have chosen not to punish the accused at any forum; in which case the member would have received only the punishment awarded in Federal court.  There is no practical difference in this case just because the member was awarded NJP, due to the non-judicial nature of the punishment.
     
    One thought is that the court’s decision could have a much broader impact than just on the seagoing services that employ the vessel exception.  If the court bases its findings on a double-jeopardy theory, it could affect the practice of many large military bases of dealing with issues such as DUI through both Federal prosecution (through a SAUSA) and NJP.