In a published opinion in United States v. Fowler, 74 M.J. 689, No. 20121079 (A. Ct. Crim. App. Apr. 30, 2015) (link to slip op.), a three-judge panel of the Army CCA tackles a claim of a double jeopardy violation in a military judge’s premature announcement of findings.

Writing for the panel, Judge Krauss explains that:

Charged with desertion, appellant pled guilty to the lesser-included offense of absence without leave (AWOL) in violation of Article 86, UCMJ. The judge advised appellant that his “plea of guilty to a lesser included offense may also be used to establish certain elements of the charged offense if the government decides to proceed on the charged offense.” The judge did not ask and the trial counsel did not declare whether the government intended to proceed on the greater charge.

Upon acceptance of that plea, the judge announced findings: “To the Specification of The Charge: Guilty, except the words, ‘and with the intent to remain away therefrom permanently’ and ‘in desertion.’ Of the Charge: Not Guilty, but guilty of a violation of . . . Article 86.”

Slip op. at 2. The trial counsel then noted that the Government was still pursuing the greater offense of desertion in violation of Article 85, and it introduced evidence that proved that the appellant had the requisite intent for desertion. The military judge then convicted the appellant of desertion.

On appeal, the appellant claimed that this amounts to a violation of the prohibition against double jeopardy. Rejecting this challenge and affirming the conviction, Judge Krauss writes:

An announced finding of “not guilty” amounts to an acquittal if it effects a “ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” Evans v. Michigan, 133 S. Ct. 1069, 1074-75 (2013). An acquittal is “a finding that the [government]’s evidence cannot support a conviction.” Martinez v. Illinois, 134 S. Ct. 2070, 2076 (2014).

Of course, the objective of a court -martial is a fair trial. Our adversarial system, by its very nature, requires that each party enjoy an opportunity to present its respective case to the factfinder. A military judge possesses no authority to prevent the United States from attempting to prove the charge it has otherwise properly referred to trial by court-martial by peremptorily announcing a finding of not guilty. [citations omitted -zds]

Any such declaration of not guilty is ineffective. This is true whether the judge makes such announcement on purpose or by mistake. See United States v. Downs, 4 U.S.C.M.A. 8, 11-12, 15 C.M.R. 8, 11-12 (1954); Greening, 54 M.J. at 832; see also United States v. Boswell, 8 U.S.C.M.A. 145, 149, 23 C.M.R. 369, 373 (1957) (when announcement of not guilty is a “slip of the tongue” it c an be corrected); R.C.M. 922(d); R.C.M. 1102(c)(2).

Here the military judge erroneously announced a finding of not guilty to the charged desertion before the government was given an opportunity to prove that charge. It appears that the judge, in the moment, did indeed intend to make that announcement; however, it is also quite plain from the record that the judge did not intend to prevent the government from proceeding. In any event, under circumstances such as these, it matters not whether the judge intended to announce a finding of not guilty. A finding of not guilty announced before the government enjoys a proper opportunity to prove its case does not constitute an acquittal. See Martinez, 134 S. Ct. at 2076-77.

Slip op. at 3-4.

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