CAAF will hear the first oral argument of the October 2019 Term in United States v. Rice, No. 19-0178/AR (CAAFlog case page), on Wednesday, October 16, 2019, at noon, at the J. Reuben Clark Law School at Brigham Young University in Provo, Utah. The court will review the Army CCA’s published decision that found a double jeopardy violation but did not give any remedy, with a single granted issue:

Whether the double jeopardy clause of the Fifth Amendment requires dismissal of Appellant’s convictions.

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. He was eventually prosecuted in both federal court and at a court-martial for reasons that remain unexplained but that the Army CCA described as a “debacle which we are now compelled to review.” United States v. Rice, 78 M.J. 649, 651 (A. Ct. Crim. App. Dec. 18, 2018).

Rice’s misconduct was discovered in 2013. In 2014, he was indicted by a grand jury on two counts of violating 18 U.S.C. § 2252A, one alleging possession of child pornography and the other alleging receipt or distribution of child pornography. In 2015 – while the federal charges were proceeding to trial – charges based on the same misconduct were referred for trial by general court-martial, including three specifications of service discrediting conduct in violation of Article 134 (clause 2) for possessing and distributing child pornography.

After a jury trial, Rice was convicted of both civil offenses on May 6, 2016, but sentencing was deferred. Rice then moved to dismiss the court-martial charges on the basis of double jeopardy, arguing that they were a successive prosecution of one of the two civil offenses. The military judge denied the motion, and Rice entered conditional pleas of guilty (preserving his double jeopardy objection) on October 24, 2016, and was sentenced to confinement for five years and a dismissal. Rice then returned to District Court for sentencing on the federal civil offenses, where he also made a double jeopardy claim. The District Court agreed that the double jeopardy clause was violated and it dismissed the possession conviction on that basis. It did not dismiss the receipt/distribution conviction, and for that offense Rice was sentenced to imprisonment for 142 months (11 years, 10 months).

Rice renewed his double jeopardy objection to the court-martial prosecution on appeal, and the Army CCA agreed that a double jeopardy violation occurred. Specifically, the CCA concluded that Rice’s possession conviction in the District Court was legally duplicative of his court-martial convictions because his possession conviction under 18 U.S.C. § 2252A “necessarily proved every element of being a crime not capital under clause three of Article 134, UCMJ.” 78 M.J. at 654. Yet that conclusion turned on the CCA’s interpretation of the three separate clauses of Article 134 as constituting a single (and singularly broad) offense:

the government may not obtain two convictions at the same court-martial on two specifications that are identical save for what clause of Article 134 is alleged. An accused may be convicted only once for possessing child pornography under clauses one, two, or three for the same conduct. . . .

Clause three of Article 134 incorporates the entire federal criminal code. The three clauses of Article 134 are disjunctive, and therefore it does not matter for Blockburger purposes which terminal elements are alleged because all three may be alleged and only one need be proven in any given specification. See Williams, 78 M.J. at 546-47. Thus, under the unique circumstances of appellant’s two prosecutions, the elements of his District Court conviction for possession of child pornography were duplicated in each of his court-martial convictions for possession of child pornography. The government placed appellant in jeopardy twice.

78 M.J. at 654. Nevertheless, despite finding a double jeopardy violation the CCA granted Rice no relief on the basis that doing so would be an undeserved windfall:

appellant sought and received dismissal of the District Court possession count that caused a double jeopardy violation. Appellant’s motion to the District Court was predicated on the court’s inability to render a lawful sentence. Appellant, however, went beyond asking merely that no sentence be imposed, and sought dismissal of the possession count entirely. 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 (citations omitted).

Rice’s brief to CAAF restates his argument that his convictions violate the double jeopardy clause, explaining that his case actually presents “three textbook successive-prosecution violations of the Double Jeopardy Clause.” App. Br. at 7. Unfortunately, only two of those violations are clearly identified. First, Rice asserts that the court-martial was an unconstitutional successive prosecution for the same possession offense of which he was convicted in District Court. App. Br. at 9. Second, Rice asserts that because he was sentenced by the court-martial on the possession offense, the District Court avoided a second double jeopardy violation (in the form of double punishment) by dismissing that conviction. App. Br. at 10.

Rice’s brief argues that “the only appropriate remedy for a successive prosecution in violation of the Double Jeopardy Clause is the dismissal of the successive prosecution.” Slip op. at 21. Furthermore, Rice’s brief claims that it is the Government that gets a windfall from the Army CCA’s decision:

under the Army Court’s analysis, the Double Jeopardy Clause does not prohibit the government from trying a defendant in civilian court first, then before a court-martial on the same offense, deciding which result it prefers, and, if both proceedings return guilty verdicts, picking the forum in which it would prefer the defendant to be sentenced or the result it prefers to defend on appeal. Not only would that approach fail to prevent what happened in this case from recurring, but it would also incentivize the exact government behavior it denounced. . .

App. Br. at 10.

The Government Division’s response does not concede that the double jeopardy clause was violated, asserting that the different clauses of Article 134 constitute different offenses:

This Court should find the Army Court erred when it analyzed Appellant’s convictions under clause 3, Article 134, UCMJ, because the government actually charged Appellant under clause 2 of that statute. Article 134, UCMJ, prohibits three kinds of offenses: (1) “all disorders and neglects to the prejudice of good order and discipline in the armed forces;” (2) “all conduct of a nature to bring discredit upon the armed forces; and (3) “crimes and offenses not capital.” Article 134, UCMJ. A charge under Article 134, UCMJ, fails to state an offense if it does not allege one of these terminal elements. Because the three clauses of Article 134, UCMJ, state separate offenses, the violation of one clause does not necessarily lead to a conviction under the other clauses.

Gov’t Div. Br. at 10-11 (citations omitted) (emphasis added). With that distinction, the Government Division argues that Rice’s civil convictions (before dismissal of the possession offense) and court-martial convictions involve distinct elements:

While Article 134, UCMJ, requires that the government prove the service discrediting nature of Appellant’s conduct, 18 U.S.C. § 2252A requires the government to show that the prohibited materials traveled in interstate or foreign commerce. Thus, applying the “strict elements” test of Blockburger, the military and federal offenses each contain an element the other does not. Accordingly, the government did not violate Appellant’s right against double jeopardy when it prosecuted him under two different statutes criminalizing the possession of child pornography.

Gov’t Div. Br. at 16-17. Assuming, however, that there was a double jeopardy violation, the Government Division asserts that Rice chose his remedy:

Further, even if Appellant’s Army prosecution violated the Double Jeopardy Clause, he elected his remedy when he pursued dismissal of his conviction for possession in the district court. When the military judge denied Appellant’s double jeopardy motion, he had the option to pursue interlocutory relief and prevent the Army from proceeding with prosecution. (JA 61); see Abney, 431 U.S. at 661-62 (finding that an appellant may vindicate his right against successive prosecution via interlocutory appeal). Appellant declined to do so. Instead, Appellant entered a conditional guilty plea that preserved his ability to raise the double jeopardy error on appeal. (JA 42-43). Had Appellant pleaded guilty and simply raised the double jeopardy error to the Army Court, it may have granted his requested relief. Appellant elected not to challenge this alleged constitutional error in the court best-suited to address it; instead, he challenged his conviction and sentence for possession of child pornography under Count One of the federal indictment. (JA 71). He prevailed and the district court vacated Appellant’s conviction for possession of child pornography. (JA 88). In so doing, Appellant vindicated his right against double jeopardy by eliminating the allegedly duplicative convictions; legally, it is as though the district court prosecution for possession of child pornography never occurred. To the extent that Appellant argues that he deserves relief for being twice “put in jeopardy” for the same offense, the district court’s remedy reduces double jeopardy to single jeopardy and eliminates any error. In short, logic and policy dictate that the remedy for double jeopardy should not be no jeopardy at all.

Given the procedural posture of this case, Appellant now stands convicted of one distribution offense and three possession offenses in violation of the UCMJ. (JA 21-22). He also stands convicted of one distribution offense in the Middle District of Pennsylvania. (JA 63-64). None of these offenses overlap and Appellant never received multiple punishments for the same offense.

Gov’t Div. Br. at 23-24.

Rice’s reply brief excoriates the Government Division for engaging in “an exercise in deflection and misdirection” with “an eye-opening number of misstatements of both fact and law.” Reply Br. at 2. It also claims that the Government Division is precluded from challenging the Army CCA’s finding of a double jeopardy violation because the Judge Advocate General of the Army did not cross-certify that issue. Reply Br. at 9-11. CAAF changed its rules back in 2006 (discussed here) to allow a cross-certification, which is a certification after a grant. Article 67(a)(2) gives each JAG the power to send (certify) a case to CAAF, and such action is basically (but not exclusively) a Government Division appeal (because sometimes issues are certified for the defense, if not in the Air Force)). Since that 2006 rules change, CAAF has sometimes considered the failure to certify as a form of concession of the underlying issue. See, for example, United States v. Evans, 75 M.J. 302, 304 n.4 (C.A.A.F. 2016) (CAAFlog case page) (“Because the Government did not certify whether the CCA correctly found an Article 31(b), UCMJ, violation, this conclusion remains the law of the case.”). But only sometimes. In United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017) (CAAFlog case page), for example, a unanimous CAAF refused to answer the granted issue (involving the Army CCA’s first-impression interpretation of Mil. R. Evid. 304(a)(2)) because it accepted the Government Division’s waiver argument that was raised for the first time in its brief to CAAF (noted here).

On the issue of a double jeopardy violation, however, Rice’s reply distinguishes between the substantive elements and the jurisdictional elements of his Article 134 and § 2252A convictions:

[T]here are two separate substantive problems with its argument. First, it conflates jurisdictional elements and substantive elements for purposes of Blockburger—and fails to grapple with the “settled practice of distinguishing between substantive and jurisdictional elements of federal criminal laws.” Luna Torres v. Lynch, 136 S. Ct. 1619, 1630 (2016).

It is well established that “interstate commerce” provisos in federal statutes like 18 U.S.C. § 2252A(a)(5) are “jurisdictional elements,” as distinct from “substantive elements,” which “primarily define[] the behavior that the statute calls a ‘violation’ of federal law.” Scheidler v. Nat’l Org. for Women, Inc., 547 U.S. 9, 18 (2006). As the Supreme Court recently reiterated, “[t]he jurisdictional element, by contrast, ties the substantive offense . . . to one of Congress’s constitutional powers . . . , thus spelling out the warrant for Congress to legislate.” Luna Torres, 136 S. Ct. at 1624–25 . . .

Second, and relatedly, the government also suggests that Article 134 includes an element that 18 U.S.C. § 2252A(a)(5) does not, because unlike the latter, the former “requires the government to prove the service discrediting nature of Appellant’s conduct.” Gov’t Br. at 17. Again, however, the government simply assumes that all elements are created equal—and ignores the substantial case law to the contrary. For instance, this Court has expressly held, for purposes of sentencing, that 18 U.S.C. § 2252A(a)(5) is “essentially the same offense[]” as possession of child pornography under “clause 2” of Article 134. Finch, 73 M.J. at 148 (quoting Leonard, 64 M.J. at 384 (emphasis added)). And the government has even argued in prior cases that possession of child pornography is inherently service-discrediting—such that there is no need to adduce additional evidence for that element at trial. See Brisbane, 63 M.J. at 117 n.11. . . .

In other words, because Appellant could not be convicted of the same offenses under both “clause 2” and “clause 3,” and because he could not be convicted of the same offenses under both 18 U.S.C. § 2252A(a)(5) and “clause 3,” it followed that he could not be convicted of the same offenses under both 18 U.S.C. § 2252A(a)(5) and “clause 2.”

Reply Br. at 14-19. The reply brief also suggests that it’s a violation of the double jeopardy clause for “the government [to] separately prosecut[e] the same servicemember for the same offense under each of the terminal elements of Article 134.” Reply Br. at 20. That, however, seems contrary to CAAF’s decision in United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (discussed here), which held that violations of clauses 1 and 2 of Article 134 are not necessarily lesser-included offenses of a violation of clause 3.

As for the Government Division’s choice-of-remedies argument, Rice’s reply brief argues that:

As the opening brief documented, however, the Supreme Court has made abundantly clear that the right against double jeopardy is not merely a right against the existence of duplicative convictions; it is a right against successive prosecutions, regardless of the result. See, e.g., Abney, 431 U.S. at 661 (“The guarantee against double jeopardy . . . protects interests wholly unrelated to the propriety of any subsequent conviction.”). Indeed, the Double Jeopardy Clause is the archetype of a constitutional “right not to be tried,” as distinct from “a right not to be convicted.” Class v. United States, 138 S. Ct. 798, 811–12 (2018). Thus, the question the Supreme Court has interpreted the Double Jeopardy Clause to ask is not how many convictions remain on the books when all is said and done; it is whether jeopardy had attached to a prior proceeding when the successive prosecution began, regardless of what happens thereafter. On this point, the government has no response.

Reply. Br. at 25.

Case Links:
ACCA opinion (78 M.J. 649)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

2 Responses to “Argument Preview: Considering the remedy for (and maybe the existence of) a double jeopardy violation caused by concurrent federal and court-martial prosecutions, in United States v. Rice, No. 19-0178/AR”

  1. Vulture says:

    A sterile and inert question that is academic in pertinence.  It is being argued by an academic, albeit compelling.  It is being argued in an academic environment.  Such is the nature of trying to attract new minds.  CAAF has allowed itself to become a recruiting tool for the industry it is supposed to regulate.
    Look around for the alum in the crowd.  This didn’t happen in a vacuum.  
    It’s been a while but the words come to mind, “Yon Casius has a lean and hungry look.  Such men are dangerous.”
    Even I’m disgusted with eating your young.

  2. Vulture says:

    …, albeit intriguing.