Below is a synopsis of the Stoltz v. United States argument in the 9th Circuit written by Tereza Ohley. And another alert reader provided us with this link to the oral argument.
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.
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.