This Stars and Stripes article discusses the case of Petty Officer 3rd Class Austin Greening, who is facing a court-martial for a homicide that was already adjudicated in state court. The reported rationale for the successive prosecution is that the sentence adjudged by the civilian court is too light:

During a the military equivalent of a preliminary hearing Friday, Lt. Adam Partridge said another trial is needed “in the interest of justice.” He also said the victim’s parents were “extraordinarily displeased” with the result of the civilian court process.

The prosecution arises out of a 2013 shooting that was prosecuted by Virginia authorities in 2014, leading to convictions of second degree murder and use of a firearm in commission of a felony (link to news report). However, the judge granted a post-trial motion for a new trial based on issues with the autopsy report (link to news report). The accused and the Commonwealth of Virginia then reached a plea agreement, with the accused pleading guilty to involuntary manslaughter and receiving a sentence of three years imprisonment with all but six months suspended (link to news report).

The case highlights the military’s non-adherence to the DOJ policy generally prohibiting successive federal prosecutions, known as the “Petite Policy.” The Petite Policy comes from the case of United States v. Petite, 361 U.S. 529 (1960), in which an individual was subjected to successive federal prosecutions in different Districts for offenses arising out of a single criminal transaction. At the Supreme Court, the Solicitor General stated:

it is the general policy of the Federal Government ‘that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.’

Petite v. United States, 361 U.S. at 530-531. Current DOJ policy is very specific on this point:

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

United States Attorneys’ Manual (USAM), Chapter 9-2.031 (“Dual and Successive Prosecution Policy”).

31 Responses to “The Navy pursues a successive prosecution”

  1. Anonymous says:

     
    Is it really “non-adherence” to the Petite Policy when the Navy’s position seems to be that the three perquisites are met?
     
    More fundamentally, I think the applicable reference is paragraph 0124 of the JAGMAN, not the USAM. The JAGMAN’s policy and procedure for successive prosecution is similar but not identical to that in the USAM.
     

  2. Zachary D Spilman says:

    JAGMAN section 0124 states:

    b. Criteria. Referral for trial or the imposition of nonjudicial punishment within the terms of this policy shall be limited to cases that meet one or more of the following criteria:

    (1) Cases in which punishment by civil authorities consists solely of probation, and local practice, or the actual terms of probation, do not provide rigid supervision of probationers, or the military duties of the probationer make supervision impractical.

    (2) Cases in which civilian proceedings concluded without conviction for any reason other than acquittal after trial on the merits.

    (3) Other cases in which the interests of justice and discipline are considered to require further action under the UCMJ (e.g., where conduct leading to trial before a State or foreign court has reflected adversely upon the Naval service or when a particular and unique military interest was not or could not be adequately vindicated in the civilian tribunal).

    The only criteria implicated in this case is that “the interests of justice and discipline are considered to require further action under the UCMJ.” I think that far more permissive than the requirement of a substantial federal interest that is demonstrably unvindicated coupled with the approval of an assistant attorney general. 

  3. Jack Chin says:

    Hard to see the justification for a successive prosecution for what the news reports describe as an off-duty, off-base accident.

  4. Mike Millios says:

    I understand that the Supreme Court created the dual sovereignty exception to the prohibition against double jeopardy but the current practices, in my opinion, offend the basic principles of the 5th Amendment. (Unfortunately, the courts disagree with me.) We have trial counsel and leadership sitting in on state trials waiting to try the Soldier if they don’t like the result.  Take a look at US v. LeMasters, the TC and company commander sat in the state trial and put the Soldier in PTC after the acquittal so he could be tried by the Army. 

  5. k fischer says:

    Mike Millios,
     
    That’s nothing.  Those dirty TC’s in US v. SSG David Tillery were using the verbatim transcripts from his acquittal in North Carolina to question their witnesses at the subsequent Court-martial for murder.

  6. stewie says:

    Without having a chance to research this question, can/should the defense raise the fact that he was already convicted in state court and served time?
     
    I assume this will end up being a guilty plea of some sort, so I would think the MJ will know everything anyways.  Hard to see him getting a much more significant sentence based on the Stars and Stripes article, but then again there could be a ton more to this case the article doesn’t cover.

  7. k fischer says:

    Stewie,
     
    Therefore, we hold that a soldier tried by court-martial must be given sentence credit for time spent in pretrial custody by local civilian authorities in connection with the offense or acts solely for which a sentence to confinement by a court-martial is ultimately imposed. Consequently, appellant is entitled to 24–days credit against his sentence to confinement
    U.S. v. Dave, 31 M.J. 940, 942 (A.C.M.R. 1990)

     
    Of course, Dave involved a situation where the civilians arrested him for child molestation, held him for 24 days in pretrial, then turned him over to the military who preferred charges for child molestation.  That’s different than a sentence that is served for a civilian conviction of a sex offense that was not undertaken at the Military’s behest.
     

  8. RY says:

    I never liked this idea, especially when it’s Monday morning quarterbacking.  Pick the jurisdiction to handle the case and live with it.  I say this even having sat in the prosecution office when a Captain in AF killed an ANG member in a DUI years ago in my first assignment.  It was egregious in the sense the host had a plan, took all the keys from participants, and set up place for everyone to sleep.  The Captain wanted to go out anyway, waited for everyone to go to sleep and then snuck and got his keys and drove, crossed the median and hit the 19-yr old ANG member who was supposed to deploy to Iraq the next month.  The state prosecutor asked us (AF) to take the case because the state had a zero or 25 year sentence (no range).  With this being first-time offense or former academy grad and deceased’s family being very forgiving, he knew best he would get is a suspended sentence.  AF said we don’t want it.  We then learned he’d get deal for deferred judgment with suspended sentence…if he behaved for 5 years, he served no jail and case dismissed.  AF still did not want case.  We could have still gone after him under this same Petite standard but we didn’t.  I think it should really be an extraordinary case that overrides this policy and this does not seem like the extraordinary case.

  9. stewie says:

    kf,
     
    I guess I was thinking more of the idea of what if the defense contests all the way. Can/should the panel know prior to conviction that he was already convicted of something similar in state court? I can see reasons why the defense might want the panel to know, but then again might not want the panel to know.

  10. k fischer says:

    RY,
     
    I agree, but what do you do when you have a judge who sentences a spoiled rotten piece of white trash to no jail time after he drinks and drives and kills four people?  (Yes, I’m drawing facts from the Affluenza case down in Texas)  Let’s say he was SPC Affluenza and a boss in the Spec4 Mafia.  I don’t have a big case of the behind about that oxygen thief going to jail for quite some time, even though the civilians did not think of those four dead people enough to put him in jail.  So, if there is some kind of exception to double jeopardy, then in the right case, I think you should take it.
     
    US v. Tillery was an extraordinary case.  The civilian judge took it out of the jury’s hands and acquitted the Army accused who was convicted at court-martial of hogtying and shooting his lover’s husband, an Air Force NCO, in the back of the head with three .32 rounds.  That felt pretty good to be sitting second chair to the best attorney in the Army who won a well-deserved conviction. 

  11. former TC says:

    stewie: that scenario played out in another Navy case: US v. Williams, in Norfolk back in 2011.  Civilian murder case, followed by a court-martial after the Navy was unhappy with the initial verdict.

  12. Lieber says:

    It’s beginning to happen in 120’s…..

  13. Lieber says:

    With that said, the Commonwealth of Virginia is not a federal jurisdiction so maybe I’m stupid, but I don’t know what this case has to do with Petite.

  14. Anonymous says:

    Zach,
    I think there’s a colorable argument that criterion 2 is implicated as well: With respect to the murder charge, this case “concluded without conviction” for a reason other than acquittal. Strained, perhaps.
     

  15. k fischer says:

    Stewie,
     
    Hmmmmmmm……..instinctively, I am thinking that I wouldn’t want the panel to know about the guilty plea, but……..if the Government is going to try to prove up the murder charge, then maybe I do want the panel to hear about the guilty plea.  Makes my client sound like a halfway decent chap who takes accountability of his actions.  One thing’s for sure, Greening has good representation; I hold Greg McCormack in the highest regard.  I had a TDS client that hired him on a rape charge, and Greg was a bulldog.  Charges were dismissed after the 32.  I took a lot of notes and never used a 32 as “an opportunity for discovery” ever again, but instead came out swinging.
     
    With regards to the effect a previous civilian trial has on a court-martial, Tillery got life with the possibility of parole because, in my opinion, he told the panel in his unsworn statement that he was acquitted in North Carolina of the murder charge.  So, a previous prosecution can have a mitigating effect at sentencing and make the TC’s look like a bunch of prosecution hungry individuals. 
     
    You would need a really good sentencing case for Greening, which Greg is certainly more than capable of arranging.
     
    Also, I noticed the emphasis on what the parent’s want and how the military is bending over backwards to appease them.  The cynic in me thinks that it is no big deal since the military bends over backwards to appease witnesses who complain of sexual assault on the most absurd allegations.  But, the humane person realizes that I would probably feel the same way, too, if I were these parents.  Tough case.

  16. Zachary D Spilman says:

    Anonymous says:

    I think there’s a colorable argument that criterion 2 is implicated as well: With respect to the murder charge, this case “concluded without conviction” for a reason other than acquittal. Strained, perhaps.

    That’s more than strained.

    I don’t think it even remotely reasonable to read the second criteria (“cases in which civilian proceedings concluded without conviction”) to include a case that ended with a conviction.

  17. Anonymous says:

    Well when you put it like that…

  18. ZeroEl Student says:

    Is a successive prosecution more palatable when there are more procedural protections in place? Compare for example the Coast Guard’s requirement in CIM 4810.1(e), where any successive prosecution must be approved by TJAG (3.B.4), vs. JAGMAN 0124 which requires only the concurrence of the first GCMCA.

  19. Former DC says:

    Because this is in Virginia, there is another twist.  The Commonwealth has a statute that says that if at any time the feds proceed in the same subject matter, the state is barred by its own definition of double jeopardy from proceeding any further with the case.  Even if the feds later drop it, too bad, so sad, its over for the state.  So – if the state case is not 100% final, and I recall that means all habeas proceedings too, then this stupidity is endangering the state conviction.  If the TCs performs to standard (that is, substandard), then the accused could walk from both sides.
    This one has got to be the stupidest idea I have heard since Salyer.

  20. Tami a/k/a Princess Leia says:

    Woolverton got prosecuted by both state and feds, though I don’t recall in which order.  Hennis was a state acquittal (NC) followed by court-martial….

  21. k fischer says:

    Former DC,
     
    If that’s true, then it might be the stupidest decision since the Ft. Bragg GCMCA denied Martinez’s offer to plea for LWOP, and the case wound up an acquittal.  The parents will be about as happy as Esposito’s wife, if Greener walks and his civilian conviction is undone. 

  22. Advocaat says:

    McCormack said Klubert’s parents agreed to the plea deal that could’ve resulted in a maximum sentence of three years in prison for involuntary manslaughter.

    The Navy shouldn’t be in the business of correcting degrees of disappointment.

  23. Former DC says:

    § 19.2-294Offense against two or more statutes or ordinances.

    If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others. Furthermore, if the same act be a violation of both a state and a federal statute, aprosecution under the federal statute shall be a bar to a prosecution under the state statute.

  24. Saul Goodman says:

    Me thinks the fact that he shot and killed another Petty Officer may give the Navy an interest?  In addition to the human loss, the Navy lost its sizable investment in a Sailor.  Even though off base, off duty, still a very strong nexus to the Navy.

  25. Zachary D Spilman says:

    still a very strong nexus to the Navy.

    So strong that the Navy waited ~3 years to prefer a charge.

  26. Dew_Process says:

    Some years ago when I (very) briefly worked on the Hennis case involving this issue, I did some research on the origins of the “dual sovereign” concept.  While obviously entrenched now, how it originated is not based on a very strong foundation.  There is of course, some argument that dual sovereignty is inconsistent with the premises of the Tenth Amendment, although in my limited research I did not find any cases adopting that argument.
     
    The origin appears in US v. Lanza, 260 U.S. 377 (1922), one of the early “Prohibition” cases reaching SCOTUS, which held:
     

    We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government, in determining what shall be an offense against its peace and dignity, is exercising its own sovereignty, not that of the other.
    It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both, and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government . . . .”
     

    The problem (and issue) is that the Lanza approach predates the constitutional doctrine of incorporation, which has incorporated the “double jeopardy” provision of the Fifth Amendment as applicable to the States.  There is an interesting analysis of all of this HERE. 

  27. stewie says:

    Well Zach that certainly mitigates against taking the case or one of the three prongs, but I think there’s still enough of a nexus to take the case, this is more a question of should you than can you IMO.

  28. Zachary D Spilman says:

    And yet there’s only one (toothless) prong under the Navy policy.

  29. Lieber says:

    For the Army, AR 27-10, ch.4 is pretty permissive when it comes to successive prosecutions.

  30. AF Capt says:

    Air Force requires SECAF approval.  Haven’t seen it yet, myself.

  31. Concerned Defender says:

    The similar case of SGT Brian Burke has troubled me.  After four (4) yes FOUR civilian mistrials for murder in Kentucky, the state dropped the case.  Fort Campbell and the Army picked it up, prosecuted him, and got a life sentence. http://www.wdrb.com/story/18242215/attorney-brent-burke-turned-down-much-better-plea-deal
    http://www.wave3.com/story/18184922/military-panel-reaches-finding-in-court-martial-of-double-murder-suspect-brent-burke 
    http://www.wave3.com/story/18184922/military-panel-reaches-finding-in-court-martial-of-double-murder-suspect-brent-burke
    Here’s the problem.  The only witnesses were very young kids, and there is compelling evidence they were coached over the several years of trials.  Their 5th trial testimony apparently deviated significantly from their original statements and testimonies.  For instance, the child who identified the attacker was vague in 2007, but was able to positively ID the accused 4-5 years later?  
    THE 911 CALLKSP Dispatcher: KSP 911Child: Last night I was afraid to call, they shot two people, my grandma and mom.KSP Dispatcher: In what county?Child: Rineyville, Kentucky.KSP Dispatcher: What’s going on right now?Child: I was afraid to call last night.KSP Dispatcher: Did the KSP come out last night?Child: No.KSP Dispatcher: They didn’t?Child: NoKSP Dispatcher: Who was shot last night?Child: My mom and my grandma.KSP Dispatcher: Your mom and your grandma?Child: Yes, and one of my grandma’s dogs. The only people here are me, my sister and my brother.KSP Dispatcher: How old are your sister and your brother?Child: My sister is a few months old, my brother is only 4.KSP Dispatcher: How old are you?Child: I’m 9.

    Officials discovered the bodies after one of the children called police.Investigators said they were going to treat the deaths as a double-murder.Officials believe the women were shot on Monday, even though they were called on Tuesday.Police said after hearing gunfire, the children became too scared to call for help until Tuesday.
    Double Murder in RineyvillePolice in Kentucky say they have no leads in the murders of a mother and grandmother.It happened Monday night in Rineyville, that’s south of Louisville. Three young children were in the home when the two women were shot. Police found the victims after the nine-year old called 911 the next morning.

    Troopers said there was no sign of domestic violence or forced entry at the killing scene. Court documents obtained by a Louisville television station show Burke died shortly before finalizing a rocky divorce. Her hearing was set for Friday morning.Police have not named Brent Burke as a suspect. They said they are questioning him and that he has cooperated with the investigation so far.Investigators said Burke’s first ex-husband, a soldier based in Ft. Lewis, Wash. has been cleared of suspicion in the killings. 
    Sure seems a LOT different than the kids immediately identifying that it was their father, since the child said on the 911 call “THEY” shot … and the policy had NO leads.  If the child said, “My dad shot…” then the police would have an immediate lead.  Instead, he wasn’t even initially named as a suspect.  “No signs of a break-in” is a lot different than finding forensic evidence of a break-in on SGT Burke’s clothing and using that to convict him and charge him of B&E also.  
    Also note that someone else in the area actually confessed to the murder but recanted.  
    From another article: 
    “Burke’s defense argued the timeline of the shootings would have made it impossible for the Fort Campbell soldier to be in Rineyville. They claim the shooter was a local teenager who confessed to killing the women but later recanted the story. Shaughnessy says police failed to pursue other suspects.
    Shaughnessy referred to “the testimony of Det. Walker who testified that even after no physical evidence matching Sgt. Burke was found, he was the only suspect.”
    A lot of other evidence did add up and he had a good alibi the night of the murder.  He was in confinement for years, faced 4 trials from 2007-2011, and his enlistment ended while he was in custody (yes, I know it can be extended).  
    I think that overlapping jurisdictions should be left for only the most heinous of crimes with clear evidence of wrongdoing.  I believe that SGT Burke was wrongly convicted.  Curious to see how it plays out on appeal.