In a published opinion in United States v. Heyward, No. 20120469, 73 M.J. 904 (A. Ct. Crim. App. Sep. 24, 2014) (link to slip op.), a three-judge panel of the Army CCA applies Army Regulation 27-10 to conclude that allied papers separate from DA Form 2627 (“Record of Proceedings Under Article 15, UCMJ”) and DA Form 2627-2 (“Record of Supplementary Action under Article 15, UCMJ”) must have an independent basis for admission during the sentencing phase of a court-martial.

Writing for the panel, Senior Judge Lind explains that Army Regulation 27-10:

authorize[s] admission of records of Article 15 (as recorded on DA Forms 2627 or 2627-2) that are “not otherwise inadmissible” as personnel records in accordance with R.C.M. 1001(b)(2) and require that the Article 15 (as recorded on DA Forms 2627 or 2627-2) and the allied papers be considered to be filed separately when determining the admissibility of the Article 15 forms.

Army Regulation 27-10 does not contain a rule of completeness authorizing admission of allied papers along with the record of punishment under Article 15. Allied papers, which may contain all sorts of inadmissible hearsay and extraneous material, may themselves be admissible in whole or in part separately from the Article 15 as recorded on DA Forms 2627 or 2627-2. However, the allied papers must have an independent basis for admission and pass the Mil. R. Evid. 403 balancing test.

Slip op. at 5-6. The allied documents at issue were the contents of the “Article 15 package” that included:

a two-page military police desk blotter entry and seven pages of sworn statements regarding the assault consummated by a battery against appellant’s spouse, as well as a sixty-page Commander’s Inquiry regarding appellant’s alteration of his [noncommissioned officer evaluation report], to include all of the enclosures to that administrative investigation.

Slip op. at 2. The military judge admitted the records over Defense objection. The CCA finds this to be harmless error.

We first noted the case of United States v. Stoltz back in February in this post, and then covered the oral argument before the Ninth Circuit Court of Appeals in this post.

Stoltz enlisted in the Coast Guard and was on active duty from 2002 to 2009. He was assigned to the Coast Guard Cutter Alex Haley in 2007. In 2008, while the Alex Haley was undergoing a port call in Nome, Alaska, a shipmate observed Stoltz aboard the cutter viewing movies showing children performing sexual acts. The shipmate reported what he saw, and Stoltz eventually confessed to Coast Guard investigators. The commander of the Alex Haley initially took no action (apparently waiting for criminal charges to be filed in the civil justice system), but he eventually imposed nonjudicial punishment in 2009. At no point was Stoltz informed of his right to refuse NJP. He was administratively discharged soon after.

In 2011 Stoltz was indicted by a federal grand jury in Alaska on one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(b), (b)(2). But the indictment was dismissed on double jeopardy grounds after the district court concluded that Stoltz should have been given the opportunity refuse the NJP. The Government appealed, and in an opinion dated June 27, 2013, the 9th Circuit reversed:

Here we must decide whether the Double Jeopardy Clause prohibits civilian criminal prosecution of a servicemember who previously received nonjudicial punishment without being informed of or waiving his statutory right to reject such punishment and demand a court-martial instead. See 10 U.S.C. § 815(a). The district court, concluding that such a scenario would raise double jeopardy concerns, dismissed the indictment charging [Stoltz] with possession of child pornography. We conclude that this was error.

United States v. Stoltz, 720 F.3d 1127, 1129 (9th Cir. 2013) (slip opinion available here).

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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.

Here’s a link to a Reuters article on the U.S. military announcing “administrative” punishments for U.S. servicemembers involved in separate incidents in which copies of the Koran from a prison library in Afghanistan were incinerated and Marines were videotaped urinating on the corpse of a Taliban combatant.

The article reports that “three Marines had pleaded guilty to charges over the video, including one for ‘urinating on the body of a deceased Taliban soldier.’ Another wrongfully posed for a photo with human casualties and the third lied about the incident to investigators.”

The article also reports that “the Army announced that six soldiers received administrative punishments over an incident in which copies of the Koran and other religious material were removed from a prison library and sent to an incinerator to be destroyed. Four of the individuals involved were officers and two of them were non-commissioned officers . . . .”

The United States has filed this motion to dismiss the notice of appeal it filed yesterday in United States v. Crank, No. 1:11-cr-222 (AJT) (E.D. Va. March 16, 2012).

The United States today filed this notice of appeal to seek the Fourth Circuit’s review of the United States District Court for the Eastern District of Virginia’s ruling dismissing a DUI prosecution following imposition of NJP for the same offense.  See United States v. Crank, No. 1:11-cr-222 (AJT) (E.D. Va. March 16, 2012).

We first discussed the matter of federal prosecution of DUI offenses committed by active duty servicemembers at Marine Corps Base Quantico – after they accepted nonjudicial punishment for the same offense – over a year ago. Since then, U.S. District Judge Anthony Trenga issued an order that upheld the decision prohibiting such prosecutions, the AP picked up the story, and it’s been reprinted in the Marine Times and the Washington Post.

But what’s really happening at Quantico and in the Eastern District of Virginia?

Judge Trenga’s order involves fives consolidated cases of Marines apprehended for DUI at Quantico, who faced both disciplinary action under the UCMJ (nonjudicial punishment) and federal criminal prosecution. According to a Quantico spokesman, “The intent at Quantico was to ensure consistency for civilians and Marines charged with DWI aboard Quantico. This process also served to ensure a DWI conviction was also reflected in the Marine’s driving record and criminal history off-base, something an NJP does not do.”

But this is only part of the story. There are at least three hearings in these cases: (1) disciplinary action under the UCMJ (the NJP), (2) administrative action in the Base Traffic Court (see MCBO P5560.2D) suspending base driving privileges, and (3) criminal charges in U.S. District Court. But only the third creates a criminal record and invokes the collateral consequences of a criminal conviction which, according to Quantico’s spokesman (as quoted above), is exactly the point.

This got me thinking about three things: (1) the “Principles of Federal Prosecution,” (2) the Memorandum of Understanding between the DOD and the DOJ, and (3) the right to counsel.

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The Marine Corps Times covers Judge Trenga’s decision upholding a magistrate judge’s ruling barring prosecution of Marines for DWI in U.S. District Court after they previously received NJP for the same offense:

Judge: Quantico DWI policy unconstitutional

A get-tough policy on drunken drivers at Marine Corps Base Quantico has backfired, and a federal judge has tossed out five DWI cases against Marines after ruling that their constitutional rights were violated.

Officials at Quantico said Friday they are changing their policies in light of the judge’s ruling.

Both sides acknowledged that Quantico has been unique among Corps bases across the country in pursuing what the judge called a “dual prosecution” policy. At any other Marine Corps bases, a Marine charged with drunken driving on the installation is prosecuted either through a federal court or through the military justice system, but never both. Military punishments are most often meted out through nonjudicial punishments.

At Quantico, though, the policy was to pursue both military punishment and civilian prosecution whenever possible. That can only occur when a Marine waives the right to a court-martial and agrees to accept nonjudicial punishment. Constitutional protections against double jeopardy bar a court-martial and a civilian prosecution for the same crime, but because nonjudicial punishments are administrative in nature, the double-jeopardy protections don’t apply.

“The intent at Quantico was to ensure consistency for civilians and Marines charged with DWI aboard Quantico. This process also served to ensure a DWI conviction was also reflected in the Marine’s driving record and criminal history off-base, something an NJP does not do,” said Quantico spokesman 1st Lt. Brian Villiard.

Invariably, defense lawyers said, Marines made bad decisions to accept nonjudicial punishment. The Marines then face prosecution in U.S. District Court. A first-time DWI conviction there typically carries fines, requirements to attend alcohol awareness programs and can occasionally carry short jail terms if a defendant had a prior convictions or an especially high blood-alcohol level.

“Only once they were provided with attorneys qualified and certified to advise them on all aspects of their case did [the Marines] learn of their fool’s bargain,” wrote federal public defender Brian Mizer.

In this order, United States District Judge Anthony J. Trenga of the United States District Court for the Eastern District of Virginia upheld a federal magistrate judge’s earlier ruling (United States v. Espinosa, 789 F. Supp. 2d 681 (E.D. Va. 2011), which the No Man  discussed here) that the United States can’t prosecute Marines for DWI in U.S. District Court after they had previously been NJPed for the same offense.  United States v. Crank, No. 1:11-cr-222 (AJT) (E.D. Va. March 16, 2012).  The decision arises from a policy in place at MCB Quantico to first NJP and then prosecute in U.S. District Court a Marine who is charged with DWI aboard MCB Quantico.  Judge Trenga noted that while under a DOJ-DOD MOU, on-base DWIs are “to be resolved within the military justice system and not the civilian courts,” MCB Quantico is one of at most two “Marine Corps installations within the geographical area covered by the Fourth Circuit” that doesn’t adhere to the policy of dealing with on-base DWIs through the military justice system.  Id., slip op. at 1.

Judge Trenga is a highly regarded George W. Bush appointee.

Judge Trenga’s opinion held that under Brady v. United States, 397 U.S. 742 (1970), which deals with waivers of constitutional rights and which both parties and Judge Trenga concluded applied to the validity of “waiving the statutory right to a court-martial,” “in order for the defendants’ court-martial waivers to be valid, these defendants were required to have counsel, or have validly waived counsel, who could advise them on the ‘direct consequences’ of that court-martial waiver.”  Crank, slip op. at 7, 8.  Judge Trenga concluded that the NJP counseling provided at MCB Quantico (which is no different than the NJP counseling provided elsewhere in the Department of the Navy) failed to meet that standard.

Judge Trenga first considered whether prosecution in U.S. District Court was a direct or collateral consequence of the waiver arising from the acceptance of NJP.  He concluded that it was a direct consequence:

[T]he challenged consequence in this case directly, immediately, and automatically resulted from the defendants’ waivers.  Specifically, the court-martial waivers were the sine qua non for the government’s ability to proceed with a civilian prosecution for the same conduct; and while the government’s decision to pursue prosecution in this Court may depend on certain other prosecutorial decisions (although the policy in place at Quantico appears to have already decided any such issues, making the civilian prosecutions “largely automatic”), with the Double Jeopardy Clause out of the way, no other decision or action was necessary to confer on the government the legal ability to proceed in this Court.  For these reasons, the Court concludes taht the elimination of the Double Jeopardy Bar, and the possibility of these civilian prosecutions, were direct, not collateral, consequences of these defendants’ waivers of their right to trial by court-martial.

Id., slip op. at 10-11.

Judge Trenga then explained why he concluded that the defendants didn’t have “sufficient information about [the possibility of a civilian prosecution] to make their waiver ‘voluntary, knowing, and intelligent.'”  Id., slip op. at 11.  He reasoned:

Here, the defendants were told that absent a waiver, both a civilian prosecution and a court-martial could not take place.  The issue is whether that information was enough to obtain a valid court-martial waiver.  Based on the facts and circumstances of this case, the Court concludes that because the military lawyers offered to the defendants could not counsel them, within an attorney-client relationship, about the range of relevant considerations concerning whether to waive a court-martial, their waiver was not “voluntary, intelligent, and knowing” and therefore invalid.

The requirement under Brady that a waiver be voluntary, knowing, and intelligent is premised on a defendant having the benefit of legal counsel with respect to issues that need to be assessed and the decisions that need to be made.  . . .  None of the defendants were appointed counsel in connection with these charges within the military justice system.  Rather, the military authorities told these defendants that they had a right to speak with a lawyer and that if they wanted to speak with a lawyer, a military lawyer would be available to them, free of charge.  Three of these defendants, Espinosa, Gipson, and Ware, met with military lawyers, only to learn that the military lawyers disclaimed any intention or ability to establish an attorney-client relationship and limited the nature and scope of the information and advice they would or could provide.  Further, it is undisputed that the military lawyers made available to the defendants did not provide, and were under instructions not to provide, any advice as to the civilian prosecution other than the date of their appearance and the fact that a waiver of a court-martial would allow it to proceed.

Given the restricted scope of advice made available to these defendants, it is not surprising that there is nothing in the record that establishes that these defendants were even generally aware of the consequences of opening themselves up to a virtually certain civilian prosecution or that they “possess[ed] an understanding of the law in relation to the facts.”  Smith, 640 F.3d at 592 (quoting McCarthy, 394 U.S. at 466).  For example, there is no evidence in the record that the defendants had even the most basic information about the maximum penalty they could receive in the civilian prosecution and how these penalties compared to what they would likely receive in either a court-martial or a NJP.  In short, the defendants knew only that they would have a civilian court date if they elected NJP.  As a result, none of these defendants received any meaningful assistance of counsel.  In fact, for the purpose of determining whether each defendant had made a valid waiver, the Court concludes that these defendants effectively had no access to any lawyer.  Without a lawyer that could, within a privileged setting, provide the relevant information, assessment, and advice pertaining to the direct consequences of their court-martial waivers, these defendants could not voluntarily, knowingly, and intelligently waive their right to trial by court-martial.

Id., slip op. at 11-13 (footnote omitted).

The court also held that the lawyers who waived their right to speak with counsel before deciding whether to accept NJP also didn’t “validly waive their right to counsel under the specific circumstances of this case” because “the government’s offer to provide counsel was misleading, if not illusory.”  Id., slip op. at 13.  “In fact, the entire procedure in place at Quantico for obtaining a court-martial waiver was premised on the view that these defendants did not have a right to a lawyer that could adequately advise them.  As one of the military lawyers testified, the opportunity to consult with military lawyers was premised on the curious notion that the defendants had only the ‘right to talk to counsel before NJP,’ not the right ‘to have counsel.’  For that reason the defendants who chose not to consult with a military lawyer simply passed on a nearly worthless opportunity.  The Court cannot conclude that these defendants’ waivers of counsel under these circumstances are valid.”  Id.

Judge Trenga responds to the government’s argument that it would be too hard to provide meaningful advice to service members before NJP with, in essence:  tough.  Id., slip op. at 14.  And he points out that it wouldn’t matter if MCB Quantico didn’t, as a matter of policy, attempt to both NJP Marines for DWI and have them prosecuted in U.S. District Court for the same offense — a policy that Judge Trenga suggested may violate the Memorandum of Understanding between DOJ and DOD set out in Appendix 3 of the MCM.  Id.

Finally, Judge Trenga explained why dismissal of the charges in U.S. District Court was the appropriate remedy where the NJP had already been imposed and served.  Id., slip op. at 14-15.  He concluded with this observation about the relationship between Article III courts and the military justice system:

The Court shares the government’s view that this Court should not inject itself into the military justice system by altering the outcome of proceedings within that system.  For that reason, this Court’s vacating the NJPs based on the invalid waivers would inappropriately extend its reach into the military justice system, as well as possibly compound, rather than cure, the injuries these defendants sustained as result of the invalid waivers.

Id., slip op. at 15.

Congratulations to Assistant Federal Public Defender (and a friend and former colleague of many CAAFloggers) Brian Mizer for a huge win.

We’ve been looking at this week’s fascinating United States District Court for the Eastern District of Virginia decision holding that a prior NJP precludes federal prosecution for drunk driving on a military base.  United States v. Espinosa, No. 1:10mj453 (E.D. Va. Dec. 2, 2010).  But as noted in the comments, in October, a U.S. district court in Washington State reached the opposite conclusion.  Here’s a link to the decision in United States v. Reveles, No. CR09-5883 (W.D. Wash. Oct. 20, 2010).

Here’s a link to an absolutely fascinating opinion by United States Magistrate Judge Thomas Rawles Jones, Jr., of the Eastern District of Virginia holding that it would be a due process violation for a federal court to convict a Marine of a drunk driving offense for which he had already received NJP. United States v. Espinosa, No. 1:10mj453 (E.D. Va. Dec. 2, 2010).