CAAF grants review of double jeopardy issue based on concurrent federal civil and court-martial prosecutions
On Wednesday CAAF granted review in this Army case:
No. 19-0178/AR. U.S. v. Robert J. Rice. CCA 20160695. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT REQUIRES DISMISSAL OF APPELLANT’S CONVICTIONS.
Briefs will be filed under C.A.A.F. R. 25.
The Army CCA issued a published opinion available here and at 78 M.J. 649.
Colonel (O-6) Rice wrongfully possessed and distributed child pornography. The evidence of his crimes was strong; his wife discovered the materials and reported them to the police. But, “for unknown reasons, the government elected to divide various child pornography charges between military prosecutors and prosecutors with the U.S. Attorney’s Office for the Middle District of Pennsylvania. Thus ensued the debacle which we are now compelled to review.” 78 M.J. at 651. And debacle it was, with the CCA remarking that “what happened in this case should not happen again.” 78 M.J. at 652.
Rice was convicted in District Court, by a jury, of various offenses including wrongful possession of child pornography. Then – prior to being sentenced in the District Court – Rice conditionally pleaded guilty (preserving a double jeopardy objection) to wrongful possession of child pornography at a general court-martial. Returning to District Court for sentencing, Rice sought (and won) dismissal of his civil conviction for wrongful possession based on double jeopardy. Then, during appellate review of his court-martial, he sought dismissal of the court-martial conviction too (for the same reason).
The Army court agreed that Rice’s convictions violate the prohibition against double jeopardy, holding that “the government placed [Rice] in jeopardy twice” because his “conviction at the District Court of possessing child pornography necessarily proved every element of being a crime not capital under clause three of Article 134, UCMJ,” and because “an accused may be convicted only once for possessing child pornography under clauses one, two, or three for the same conduct.” 78 M.J. at 654. But that did not win Rice reversal of his court-martial conviction because:
Once appellant secured dismissal of the possession count on grounds unrelated to his factual guilt or innocence, the United States was free to pursue other charges based on the same course of conduct.
Thus, while we agree appellant was subjected to jeopardy twice, we conclude he has already received his remedy and is not entitled to what the Supreme Court has described as an unjustified windfall.
78 M.J. at 656 (marks and citations omitted).