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
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).