Amicus Curiae Brief — Terance Martez Gamble, Petitioner v. United States

No. 17-646

IN THE

Supreme Court of the United States

TERANCE MARTEZ GAMBLE, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

On Writ of Certiorari to the United

States Court of Appeals for the

Eleventh Circuit

BRIEF OF THE U.S. NAVY-MARINE CORPS

APPELLATE DEFENSE DIVISION, U.S. COAST

GUARD OFFICE OF MEMBER ADVOCACY

AND LEGAL ASSISTANCE—APPELLATE

DEFENSE, U.S. AIR FORCE APPELLATE

DEFENSE DIVISION, AND U.S. ARMY

DEFENSE APPELLATE DIVISION, AS AMICI

CURIAE IN SUPPORT OF PETITIONER

DANIEL E. ROSINSKI

LT, JAGC, U.S. Navy

Counsel of Record

U.S. Navy-Marine Corps

Appellate Defense Division

1254 Charles Morris St,

SE, Suite 100

Washington, D.C. 20374

202-685-8506

daniel.e.rosinski@navy.mil

REBECCA S. SNYDER

Deputy Director

Counsel

U.S. Navy-Marine Corps

Appellate Defense Division

1254 Charles Morris St,

SE, Suite 100

Washington, D.C. 20374

202-685-7094

rebecca.s.snyder@navy.mil

Counsel for Amici Curiae (additional counsel listed inside)

September 11, 2018

U.S. Coast Guard Office of Member Advocacy

and Legal Assistance—Appellate Defense

SALOMEE G. BRIGGS

LT, U.S. Coast Guard

Counsel

U.S. Coast Guard

Appellate Defense Division

2703 Martin Luther King

Jr. Ave., SE

Washington, D.C. 20593

202-685-7389

salomee.g.briggs@uscg.mil

JOHN C. REARDON

CDR, U.S. Coast Guard

Counsel, Chief, Defense

Services, U.S. Coast Guard

Defense Services Division

2703 Martin Luther King

Jr. Ave., SE

Washington, D.C. 20593

202-372-3750

john.c.reardon@uscg.mil

U.S. Air Force Appellate Defense Division

SHANE A. MCCAMMON

Maj, USAF, Counsel

Deputy Chief, Appellate

Defense Division

1500 W. Perimeter Road

Suite 1100

JB Andrews, MD 20762

(240) 612-4770

shane.a.mccammon2.mil

@mail.mil

JANE E. BOOMER

Col, USAF, Counsel

Chief, Appellate Defense

Division

1500 W. Perimeter Road

Suite 1100

JB Andrews, MD 20762

(240) 612-4770

jane.e.boomer.mil

@mail.mil

U.S. Army Defense Appellate Division

CHRISTOPHER D. CARRIER

LTC, JA, USA, Counsel

Defense Appellate Division

U.S. Army Legal Services

Agency

9275 Gunston Road

Fort Belvoir, VA 22060

703-695-9853, christopher.

d.carrier.mil@mail.mil

ELIZABETH G. MAROTTA

COL, JA, USA, Counsel

Chief, Defense Appellate

Division, U.S. Army Legal

Services Agency

9275 Gunston Road

Fort Belvoir, VA 22060

703-693-0647 elizabeth.

g.marotta.mil@mail.mil

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I. THE SEPARATE-SOVEREIGNS EXCEPTION

SHOULD BE OVERRULED BECAUSE IT

LOWERS THE GOVERNMENT’S BURDEN BY

ALLOWING RETRIAL AT COURT-MARTIAL ON

A NON-LAWYER’S DECISION, WITHOUT STATE

COURT PROTECTIONS. ........................................ 4

A. The lack of a strong jury trial right in courtsmartial incentivizes the use of successive

courts-martial after a state trial. .................... 7

B. Unlike the DOJ’s Petite Policy, which places

uniform

limits

on

successive

federal

prosecutions, the military departments place

non-uniform and insubstantial restrictions on

successive courts-martial. .............................. 14

1. No department follows the DOJ’s Petite Policy

of requiring a high-level attorney to approve

a successive prosecution. ............................. 14

2. Most military departmental limits on

successive prosecutions are insubstantial

compared to the DOJ’s Petite Policy. .......... 18

i

3. The military departments do not enforce their

proclaimed policies against successive

prosecutions to the degree that the DOJ

enforces the Petite Policy. ............................ 21

II. THE SEPARATE-SOVEREIGNS EXCEPTION

SHOULD BE OVERRULED BECAUSE IT

ALLOWS FOR CONTINUED HARASSMENT BY

SUCCESSIVE COURTS-MARTIAL OF RETIRED

MILITARY, AND OF ACTIVE DUTY MILITARY

WHOSE ENLISTMENTS ARE INVOLUNTARILY

EXTENDED. .......................................................... 22

A. The military routinely places active duty

members on “legal hold” to involuntarily extend

enlistments for a court-martial. .......................... 23

B. The separate-sovereigns exception allows the

military to place members facing state trials on

“legal hold” for successive courts-martial, long

after their enlistments expire. ............................ 25

III. THE FACTUAL PREMISE FOR TRIAL BY

COURT-MARTIAL UNDER THE SEPARATESOVEREIGNS EXCEPTION IS OBSOLETE,

CONTRARY TO THE FRAMERS’ INTENT, AND

SHOULD BE OVERRULED. ................................ 28

A. Using the separate-sovereigns exception for

successive courts-martial is inconsistent with the

Framers’ intent. ................................................... 28

ii

B. Courts-martial have transformed from

summarily punishing military offenses to

judicially enforcing a comprehensive criminal code

duplicative of state law in cooperation with state

investigators. ....................................................... 32

CONCLUSION.......................................................... 34

iii

Table of Authorities

United States Constitution

U.S. CONST. amend. V ........................................passim

U.S. CONST. amend. VI ............................................ 7-8

Supreme Court of the United States

Abbate v. United States,

359 U.S. 187 (1959) ......................................... 7, 31

Barker v. Kansas,

503 U.S. 594 (1992) ............................................. 23

Bartkus v. Illinois,

359 U.S. 121 (1959) ....................................... 28, 31

Crist v. Bretz,

437 U.S. 28 (1978) ......................................... 17, 19

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................................... 7

Green v. United States,

355 U.S. 184 (1957) ......................................... 3, 34

Heath v. Alabama,

474 U.S. 82 (1985) ................................................. 5

Ortiz v. United States,

138 S. Ct. 2165 (2018) ........................ 4-5, 7, 30, 32

Planned Parenthood of Se. Penn. v. Casey,

505 U.S. 833 (1992) ............................................. 32

Reid v. Covert,

354 U.S. 1 (1957) ............................................ 28-30

Rinaldi v. United States,

434 U.S. 22 (1977) ............................................... 16

Solorio v. United States,

483 U.S. 435 (1987) ............................................. 29

Thompson v. United States,

444 U.S. 248 (1980) ............................................. 21

Taylor v. Louisiana,

419 U.S. 522 (1975) ............................................. 11

Whelchel v. McDonald, 340 U.S. 122 (1950) .............. 7

iv

United States Court of Appeals for the Armed

Forces

United States v. Bertie, 50 M.J. 489

(C.A.A.F. 1999) .................................................... 10

United States v. Christensen, 78 M.J. 1

(C.A.A.F. 2018) .............................................. 24, 26

United States v. Cuellar, 27 M.J. 50

(C.M.A. 1989) ......................................................... 5

United States v. Dowty, 60 M.J. 163

(C.A.A.F. 2004) ................................................. 9-10

United States v. Easton, 71 M.J. 168

(C.A.A.F. 2012) .................................................... 19

United States v. Fischer, 61 M.J. 415

(C.A.A.F. 2005) .................................................... 24

United States v. Gooch, 69 M.J. 353

(C.A.A.F. 2010) .................................................... 10

United States v. Kohut, 44 M.J. 245

(C.A.A.F. 1996) .......................................... 6, 22, 27

United States v. Mitchell, 58 M.J. 446

(C.A.A.F. 2003) ...................................................... 8

United States v. Riesbeck, 77 M.J. 154

(C.A.A.F. 2017) .................................................... 10

United States v. Roland, 50 MJ 66

(C.A.A.F. 1999) .................................................... 11

United States v. Schneider, 38 M.J. 387

(C.A.A.F. 1993) ...................................................... 5

United States Military Courts of Criminal

Appeal

United States v. Burke, No. 20120448,

2015 WL 5472729 (A. Ct. Crim. App.

Feb. 26, 2015) ................................................. 25-26

United States v. Culpepper, No. ACM 34058,

2002 WL 13154 (A.F. Ct. Crim. App.,

Dec. 11, 2001)....................................................... 22

United States v. Greening, No. 201700040, 2018

v

WL 1547779 (N-M. Ct. Crim. App.

Mar. 30, 2018) ......................................... 1, 3, 27-28

United States v. Hennis, 75 M.J. 796

(A. Ct. Crim. App. 2016) .................................. 1, 23

United States v. Lemasters, No. 20111143,

2013 WL 6913001 (A. Ct. Crim. App.

Dec. 31, 2013).................................................. 11-12

United States v. Williams, No. 201200248,

2013 WL 1808733 (N-M. Ct. Crim. App.

Apr. 30, 2013) ...................................................... 13

Webb v. United States, 67 M.J. 765

(A.F. Ct. Crim. App. 2009) .................................. 24

Other Court Cases

Batts v. Commonwealth, 515 S.E.2d 307

(Va. Ct. App. 1999) .............................................. 13

Tillery v. Shartle, No. CV 16-0204-TUC-CKJ (LAB),

2016 WL 7229139 (D. Ariz. Dec. 14, 2016) ......... 20

United States v. Snell, 592 F.2d 1083

(9th Cir. 1979)...................................................... 21

Federal Statutes

10 U.S.C. § 688 (2012) .............................................. 23

10 U.S.C. § 802 (2012) ................................. 2, 3, 23-24

10 U.S.C. § 803 (2012) ................................................ 2

10 U.S.C. § 816 (2012) ................................................ 8

10 U.S.C. § 818 (2012) .......................................... 8, 15

10 U.S.C. § 822 (2012) ................................................ 5

10 U.S.C. § 825 (2012) .......................................... 2, 10

10 U.S.C. § 833 (2012) .............................................. 18

10 U.S.C. § 844 (2012) .............................................. 18

10 U.S.C. § 852 (2012) ................................... 2, 8-9, 13

10 U.S.C. § 856 (2012) .............................................. 15

10 U.S.C. § 867 (2012) ................................................ 1

10 U.S.C. § 870 (2012) ................................................ 1

10 U.S.C. § 906 (2012) ................................................ 8

vi

10 U.S.C. § 920 (2012) .............................................. 15

10 U.S.C. § 920b (2012) ............................................ 15

10 U.S.C. § 925 (2012) .............................................. 15

10 U.S.C. § 934 (2012) .............................................. 33

10 U.S.C. § 1168 (2012) ............................................ 24

Legislation and Executive Orders

Act of Sept. 29 1789, Ch. 25, 1 Stat. 95.................... 29

American Articles of War of 1776 (Sept. 20, 1776).. 29

Exec. Order No. 13,825, 83 Fed. Reg. 9889

(Mar. 1, 2018)......................................................... 8

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL

YEAR 2017, Pub. L. No. 114-328, 130 Stat. 2000

(2016). ................................................... 2, 6, 8-9, 18

State Constitutional Provisions and Statutes

LA. CONST. art. I, § 17 ................................................. 9

OR. REV. STAT. § 136.450 (2015) ................................. 9

VA CODE ANN. § 19.2-295.1 (2012) ............................ 12

VA CONST. Art. I, Sec. 8 ............................................ 12

Rules for Courts-Martial

RULE FOR COURTS-MARTIAL 202 ............................... 24

RULE FOR COURTS-MARTIAL 907 ................................. 5

RULE FOR COURTS-MARTIAL 907 ............................... 10

Other Authorities

Akhil Reed Amar & Jonathan L. Marcus, Double

Jeopardy Law After Rodney King, 95 COLUM. L.

REV. 1 (1995) ........................................................ 33

Aliza B. Kaplan and Amy Saack, Overturning

Apodaca v. Oregon Should Be Easy:

Nonunanimous Jury Verdicts in Criminal Cases

Undermine the Credibility of Our Justice System,

95 OR. L. REV. 1 (2016) .......................................... 9

vii

Ashley Garcia, Patching the Exhaust Pipe: A

Historical Analysis of Oregon’s Non-Unanimous

Jury Law in Criminal Cases, 54 WILLAMETTE L.

REV. 113 (2017) ...................................................... 9

Charles Gazaway, Military panel finds murder

suspect Brent Burke guilty on all charges, WAVE 3

NBC NEWS (May 8, 2012), http://www.wave3.com/

story/18184922/military-panel-reaches-finding-incourt-martial-of-double- murder-suspect-brentburke .................................................................... 25

CODE COMMITTEE ON MILITARY JUSTICE, ANNUAL

REPORT FOR THE PERIOD OCTOBER 1, 2016 TO

SEPTEMBER 30, 2017, available at http://

www.armfor.uscourts.gov/newcaaf/

annual/FY17AnnualReport.pdf............................. 1

Corinne Reilly, Killer again charged with murder,

this time by Navy, THE VIRGINIAN-PILOT (Jul. 9,

2011), https://pilotonline.com/news/military/

article_a569a3a8-e9cf-51c1-8bdb-1a8968805a08

.html ..................................................................... 13

DEP’T OF THE AIR FORCE, Air Force Instruction 51201, at 35, ¶ 2.18.3 (Dec. 8, 2017), available at

http://static.e-publishing.af.mil/production/1/af_ja/

publication/afi51-201/afi51-201.pdf .............. 15, 18

DEP’T OF THE ARMY, Army Regulation 27-10 Legal

Services: Military Justice, at 29, Ch. 4, ¶ 4-1 (May

11, 2016), available at https://armypubs.army.mil/

ProductMaps/PubForm/AR_Details.aspx?

ID=09028518003514c .......................................... 14

viii

DEP’T OF DEFENSE, FY 2017 DOD Statistical Report

on the Military Retirement System at 162 (Jul.

2018), available at https://actuary.defense.gov/

LinkClick.aspx?fileticket=SsTsvHFcjaE%3D&

tabid=1804&portalid=15 ....................................... 2

DEP’T OF THE NAVY, JAG INSTRUCTION 5800.7C

(1992) ..................................................................... 6

DEP’T OF THE NAVY, JAG INSTRUCTION 5800.7D

(2004) (on file with counsel of record) ................... 6

DEP’T OF THE NAVY, JAG INSTRUCTION 5800.7E

(2007), available at https://www.newriver.

marines.mil/Portals/17/Documents/JAGINST%

205800.7E.pdf ........................................................ 6

DEP’T OF THE NAVY, JAG INSTRUCTION 5800.7F,

available at ww.jag.navy.mil/library/instructions/

JAGMAN2012.pdf (2012) ....................... 5-6, 14, 19

DEP’T OF THE NAVY, MILITARY PERSONNEL MANUAL

(MILPERSMAN) ........................................... 24, 34

DEP’T OF THE NAVY, Secretary of the Navy

Instruction 1920.6C (2011) ................................. 34

Edwin Meese III, Big Brother on the Beat: The

Expanding Federalization of Crime, 1 TEX. REV.

L. & POL. 1 (1997) ................................................ 32

Letter from Captain Robert P. Monahan Jr., Judge

Advocate General’s Corps, U.S. Navy, Office of the

Judge Advocate General, U.S. Navy, to Lieutenant

Daniel Rosinski, JAG Corps, U.S. Navy (Aug. 8,

2018) (on file with counsel of record) ................. 5-6

ix

Letter from Captain V. Tasikas, U.S. Coast Guard,

Office of Military Justice, to Lieutenant Salomee

Briggs, U.S. Coast Guard (Aug. 21, 2018) (on file

with counsel of record) .......................................... 6

Major Charles L. Prichard, Jr., The Pit and the

Pendulum: Why the Military Must Change Its

Policy Regarding Successive State-Military

Prosecutions, 414 ARMY LAWYER 1

(Nov. 2007) ..................................... 19-20, 23, 33-34

Mat dos Santos, AMERICAN CIVIL LIBERTIES UNION OF

OREGON, Non-Unanimous Jury Convictions

Violate Equal Protection Clause (Dec. 15, 2016)

https://www.aclu-or.org/en/cases/non-unanimousjury-convictions-violate-equal-protection-clause.. 9

Offices of the U.S. Attys, DEP’T OF JUSTICE, United

States Attorneys’ Manual § 9-2.031 (2009),

available at https://www.justice.gov/usam/usam9-2000-authority-us-attorney-criminal-divisionmattersprior-approvals#9-2.031 .......... 3, 16-18, 21

UNITED STATES COAST GUARD, COMDTINST

M5810.1F, 60-61, ¶ 4.D.1 (Mar. 2018), available

at https://media.defense.gov/2018/Apr/06/2001900

284/-1/-1/0/CIM_5810_1F.PDF ...................... 15, 20

W. WINTHROP, MILITARY LAW AND PRECEDENTS 964

(2d ed. 1920).................................................... 29-31

WRAL.COM, Man Accused of Murdering Lover’s

Husband Faces Court Martial (May 12, 2003),

https://www.wral.com/news/local/story/

105214/ ................................................................. 20

x

INTEREST OF AMICI CURIAE1

The United States Navy-Marine Corps

Appellate Defense Division, United States Coast

Guard Office of Member Advocacy and Legal

Assistance—Appellate Defense, United States Air

Force Appellate Defense Division, and United States

Army Defense Appellate Division, represented more

than 1,845 military members and others tried by

court-martial in the last fiscal year alone.2

Some, like Navy Petty Officer Austin Greening3

and Retired Army Master Sergeant Timothy Hennis,

were convicted at court-martial for offenses first tried

in state court under the separate-sovereigns exception

to the Double Jeopardy Clause—in Hennis’ case, he

was sentenced to death after acquittal by a state jury.4

1 Counsel for all parties have consented to filing of this brief. In

accordance with Supreme Court Rules 37.4 and 37.6, amici

curiae are authorized legal representatives of their respective

Appellate Defense units, and are authorized by law to appear

before this Court under 10 U.S.C. § 870(c) (2012).

2 CODE COMMITTEE ON MILITARY JUSTICE, ANNUAL REPORT FOR

THE PERIOD OCTOBER 1, 2016 TO SEPTEMBER 30, 2017, at 46, 106,

115, 134, available at http://www.armfor.uscourts.gov/newcaaf/

annual/FY17AnnualReport.pdf.

3 United States v. Greening, No. 201700040, 2018 WL 154779 (NM. Ct. Crim. App. Mar. 30, 2018), rev. granted, __M.J.__

(C.A.A.F. July 24, 2018). The Navy tried Petty Officer Greening

for “involuntary manslaughter and obstruction of justice” after

he “pleaded guilty to involuntary manslaughter” in an

“agreement with the Commonwealth [of Virginia]”). Id. at *1, *4.

The Court of Appeals for the Armed Forces (“CAAF”) granted

review on the Double Jeopardy issue raised here by Mr. Gamble.

4 United States v. Hennis, 75 M.J. 796, 802-03 (A. Ct. Crim. App.

2016). The CAAF will review this case per 10 U.S.C. § 867(a).

1

Amici ask this Court to overrule the separatesovereigns exception so those who served our country

receive the proper Double Jeopardy protections of the

Constitution, our basic charter of rights to which they

took an oath to defend with their lives.

SUMMARY OF ARGUMENT

For the millions of active duty military

members,5 active duty retirees,6 and others subject to

the Uniform Code of Military Justice (“UCMJ”),7 the

separate-sovereigns exception not only allows another

“bite at the apple” after a state trial: it slices the apple

into “bite sized” pieces for the government. This is

because the separate-sovereigns exception allows the

military to overrule the verdict of a state jury, with its

jurors selected from a representative cross-section of

the community, by meeting a lesser standard:

currently a two-thirds majority vote for conviction by

a panel of military members, each senior to the

defendant and picked by the defendant’s commander.8

And the military does this at the discretion of nonattorney commanding officers, unconstrained by any

restrictions comparable to the Petite Policy regulating

Congress authorized an active duty military of 1,305,900

personnel. NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL

YEAR 2017, Pub. L. No. 114-328, § 401, 130 Stat. 2000, 2091

(2016) [hereinafter FY 2017 NDAA].

6 As of Sept. 30, 2017, there were 1,587,780 non-reservist retirees

receiving retired pay. DEP’T OF DEFENSE, FY 2017 DOD

Statistical Report on the Military Retirement System at 162 (Jul.

2018), available at https://actuary.defense.gov/LinkClick.aspx?

fileticket=SsTsvHFcjaE%3D&tabid=1804&portalid=15.

7 10 U.S.C. §§ 802, 803 (2012) (listing those subject to UCMJ).

8 See id. §§ 825(c)(1), 825 (d)(1-2), 852(a)(2) (2012).

5

2

the United States Department of Justice (DOJ).9

Moreover, retired active duty military, and

some members of the active duty military suffer a

heightened form of the “continuing state of anxiety

and insecurity” caused by successive prosecutions.10

This occurs when the military departments courtmartial retirees long after they have left the active

duty military, and when they involuntarily extend

enlistments beyond the expiration of a service

obligation for the sole purpose of carrying out a

successive prosecution.11 The separate-sovereigns

exception thus allows the military to hold members at

their duty station—often far from a member’s home

and family, and sometimes in pretrial detention—for

a successive court-martial, long after the member has

completed his or her contractual service obligation.12

Finally, a “factual premise”13 for use of the

Brief for the United States in Opposition at 11, Gamble v.

United States, No. 17-646 (Jan. 2018) (citing Offices of the U.S.

Attys, DEP’T OF JUSTICE, United States Attorneys’ Manual § 92.031 (2009), available at https://www.justice.gov/usam/usam-92000-authority-us-attorney-criminal-division-matterspriorapprovals#9-2.031 [hereinafter USAM]).

10 Brief for Petitioner at 27, Gamble v. United States, No. 17-646

(Sept. 4, 2018) (quoting Green v. United States, 355 U.S. 184, 18788 (1957)) [hereinafter Brief for Petitioner].

11 10 U.S.C. § 802(a) (2012) (noting that “[m]embers of . . . the

armed forces, including those awaiting discharge after expiration of their terms of enlistment” are subject to court-martial).

12 E.g., Greening, 2018 WL 1547779, at *2 (noting that Petty

Officer Greening’s command informed him of the involuntary

extension of his enlistment, “and that the action was taken with

a view towards trial by court-martial”) (quotation omitted).

13 Brief for Petitioner at 42.

9

3

separate-sovereigns exception to the Double Jeopardy

Clause for successive prosecutions at courts-martial—

that there is almost no overlap between the state and

military judicial systems—is obsolete. The Articles of

War governing the Army during and after passage of

the Double Jeopardy Clause addressed military

offenses not punishable under state law, and required

commanding officers to support state jurisdiction over

state law offenses. However, the UCMJ now in effect

not only proscribes a wide variety of crimes, both

military and civil in nature, it allows for court-martial

for assimilated violations of federal and state laws.

The Framers could not have intended servicemembers

to be tried by both a court-martial and a state trial for

the same alleged criminal act, as the separatesovereigns exception has authorized.

ARGUMENT

I. THE SEPARATE-SOVEREIGNS EXCEPTION

SHOULD BE OVERRULED BECAUSE IT

LOWERS THE GOVERNMENT’S BURDEN

BY ALLOWING RETRIAL AT COURTMARTIAL ON A NON-LAWYER’S DECISION,

WITHOUT STATE COURT PROTECTIONS.

Military courts-martial “can try service

members for a vast swath of offenses, including

garden-variety crimes unrelated to military service.”14

“As a result, the jurisdiction” of courts-martial

“overlaps

substantially

with

that

of

14 Ortiz v. United States, 138 S. Ct. 2165, 2174 (2018) (citations

omitted).

4

state . . . courts.”15 This means that a person subject

to the UCMJ can “be re-prosecuted by the military”

under the separate-sovereigns exception for the same

alleged criminal acts—even after a judgement of

acquittal by a state court.16

Courts-martial for the same alleged criminal

acts previously tried in a state court (hereinafter

referred to as “successive courts-martial”) are poorly

regulated. There is no military-wide regulation

restricting the ability of military convening

authorities—who are the non-lawyer initiators of all

courts-martial in the military justice system—to

convene a successive court-martial.17

Of the different military departments, only the

Department of the Navy18 and the Coast Guard have

15 Ortiz, 138 S. Ct. at 2170 (citations omitted).

16 United States v. Schneider, 38 M.J. 387, 392 (C.A.A.F. 1993)

(citing Heath v. Alabama, 474 U.S. 82 (1985)); see also United

States v. Cuellar, 27 M.J. 50, 55 (C.M.A. 1989) (“[U]ntil Congress legislates to the contrary, a court-martial is not collaterally

estopped by the outcome of a trial in a state court.”). A previous

“federal civilian court” trial “for the same offense” precludes a

successive court-martial.

MANUAL FOR COURTS-MARTIAL,

UNITED STATES, R.C.M. 907(b)(2), (2016).

17 A convening authority is almost always a uniformed officer of

the defendant’s service. 10 U.S.C. § 822 (2012) (listing civilians

and officers authorized to “convene general courts-martial”).

18 See DEP’T OF THE NAVY, JAG INSTRUCTION 5800.7F

(hereinafter “JAGMAN”) §§ 0124(c)(1) (2012), available at

www.jag.navy.mil/library/instructions/JAGMAN2012.pdf

(requiring notification of a Navy successive court-martial by the

convening authority to OJAG); Letter from Captain Robert P.

Monahan Jr., Judge Advocate General’s (“JAG”) Corps, U.S.

Navy, Office of the Judge Advocate General (“OJAG”), U.S. Navy,

5

centrally tracked their convening authorities’ use of

successive courts-martial.19 The Departments of the

Army and the Air Force have not centrally tracked use

of successive courts-martial. The Department of the

Navy—with far less than half of the total number of

active duty military members20—has conducted

roughly two successive courts-martial per year.21

to Lieutenant Daniel Rosinski, JAG Corps, U.S. Navy (Aug. 8,

2018) (on file with counsel of record) [hereinafter Navy Letter].

19 See Letter from Captain V. Tasikas, U.S. Coast Guard, Office

of Military Justice, to Lieutenant Salomee Briggs, U.S. Coast

Guard (Aug. 21, 2018) (on file with counsel of record) (stating

that the Coast Guard only centrally tracked successive courtmartial requests between 2007 and February 2016, and that it

conducted three successive courts-martial in this time).

20 Congress authorized an active duty end-strength of 508,900

between the Navy and Marine Corps, out of 1,305,900 total active

duty forces. FY 2017 NDAA § 401, 130 Stat. at 2091.

21 See Navy Letter (reporting 42 successive courts-martial

between 1992 and 2018, an average of 1.6 courts-martial per

year). This figure is an underestimate because it only includes

successive courts-martial by Marine Corps convening authorities

between 1992 and 2007, when they had to request permission

through OJAG.

Compare DEP’T OF THE NAVY, JAG

INSTRUCTION 5800.7D §§ 0124(c)(1) (2004) (on file with

counsel of record) and United States v. Kohut, 44 M.J. 245, 24647 (C.A.A.F. 1996) (quoting DEP’T OF THE NAVY, JAG

INSTRUCTION 5800.7C §§ 0124(c)(1) (1992) (requiring Marine

Corps convening authorities to request permission through

OJAG for successive courts-martial)), with DEP’T OF THE NAVY,

JAG INSTRUCTION 5800.7E §§ 0124(c)(1) (2007), available at

https://www.newriver.marines.mil/Portals/17/Documents/JAGI

NST%205800.7E.pdf and JAGMAN 5800.7F, supra note 18, §§

0124(c)(1) (only requiring notifications of successive courtsmartial within Marine Corps by Marine convening authorities).

Since the 2007 JAGMAN change, the Marine Corps has not

tracked successive courts-martial by its convening authorities.

6

Use of the separate-sovereigns exception in

successive courts-martial is especially likely to

“permit[] the two components of our federal system to

conspire together to deprive an individual of liberty

where a single government would be powerless to do

so.”22 The first reason for this is that convening

authorities have a greater chance for conviction in a

successive court-martial than the DOJ in a successive prosecution because courts-martial do not provide

the jury protections constitutionally required in a

prior state trial. The second is that the Department

of Defense (DOD) does not sufficiently regulate

successive courts-martial to ensure convening

authorities use this extreme measure selectively.

A. The lack of a strong jury trial right in

courts-martial incentivizes the use of

successive courts-martial after a state trial.

Though courts-martial are “judicial” in

nature,23 this Court has not required them to provide

the right to a jury trial that the Sixth Amendment

guarantees to state court criminal defendants.24

22 Reply Brief for Petitioner at 8, Gamble v. United States, No.

17-646 (Jan. 30, 2018) (citing Abbate v. United States, 359 U.S.

187, 203 (1959) (Black, J., dissenting)) [hereinafter Reply Brief].

23 Ortiz, 138 S. Ct. at 2174 (claiming that the “procedural

protections afforded to a service member are virtually the same

as those given in a civilian criminal proceeding . . . state or

federal”). Courts-martial may afford virtually the same types of

procedural protections available in state courts, but in many

respects (including the jury right) they are inferior protections.

24 Whelchel v. McDonald, 340 U.S. 122, 127 (1950) (“The right to

trial by jury . . . is not applicable to trials by courts-martial.”)

(citations omitted); cf. Duncan v. Louisiana, 391 U.S. 145, 162

7

Court-martial defendants tried at a general courtmartial,25

which

may

impose

felony-level

26

punishments, only have a statutory right to a

determination of their guilt or innocence by “members

panels.”27 Two major differences between these

panels and juries lower the burden to achieve a

conviction in a successive court-martial.

First, general courts-martial may convict a

defendant with a lower percentage of members voting

for conviction than any of the fifty states allow for a

felony jury verdict. Congress currently requires only

“two-thirds of the members” to vote for conviction, in

order for a panel to find a court-martial defendant

guilty of any offense, except spying.28 The changes

Congress passed in the Military Justice Act (MJA) of

201629 still only require three-fourths of the members

(1968) (incorporating most of the Sixth Amendment right to a

jury trial against state governments trying defendants for

serious criminal cases).

25 A general court-martial may “adjudge any punishment not

forbidden by” the UCMJ, “including the penalty of death when

specifically authorized.” 10 U.S.C. § 818 (2012).

26 Military courts have recognized this analogy between offenses

tried at general courts-martial and “felony offenses.” United

States v. Mitchell, 58 M.J. 446, 448 n.3 (C.A.A.F. 2003) (quotation

and citation omitted).

27 10 U.S.C. § 816 (2012). A defendant also has the right, in a

non-capital case, to elect trial by judge alone. Id.

28 Id. § 852(a)(2) (2012). The only offense requiring a unanimous

vote for conviction is that “for which the death penalty is made

mandatory.” Id. § 852(a)(1). The only such offense, spying, see

id. § 906, is an offense federal in nature.

29 FY 2017 NDAA, §§ 5001-5542, 130 Stat. at 2894-2968. These

MJA amendments “take effect on January 1, 2019.” Exec. Order

No. 13,825, 83 Fed. Reg. 9889, 9889 (Mar. 1, 2018).

8

(on a general court-martial panel that will be required

to have eight members) to vote for conviction.30

By contrast “only two states,” Oregon and

Louisiana, permit any felony “convictions on lessthan-unanimous jury verdicts.”31 Even these states

require unanimity in at least some murder trials; and

for all felonies, they require more than three-fourths

of jurors to vote for conviction for a guilty verdict.32

The second jury right court-martial defendants

lose in a successive court-martial is the right to a jury

pool representative of the community where the

alleged crime occurred. A court-martial defendant

has “no right to have a court-martial be a jury of peers,

a representative cross-section of the community, or

30 FY 2017 NDAA, § 852, 130 Stat. at 2916 (modifying 10 U.S.C.

§ 852(a) to require the “concurrence of at least three-fourths of

the members” for a court-martial conviction).

31 Aliza B. Kaplan and Amy Saack, Overturning Apodaca v.

Oregon Should Be Easy: Nonunanimous Jury Verdicts in

Criminal Cases Undermine the Credibility of Our Justice System,

95 OR. L. REV. 1, 6 (2016); accord Ashley Garcia, Patching the

Exhaust Pipe: A Historical Analysis Of Oregon’s Non-Unanimous

Jury Law in Criminal Cases, 54 WILLAMETTE L. REV. 113, 135

(2017) (citing Mat dos Santos, AMERICAN CIVIL LIBERTIES UNION

OF OREGON, Non-Unanimous Jury Convictions Violate Equal

Protection Clause (Dec. 15, 2016) https://www.acluor.org/en/cases/non-unanimous-jury-convictions-violate-equalprotection-clause (“Only two states allow non-unanimous juries

to deliver felony convictions: Oregon and Louisiana.”)).

32 La. CONST. art. I, § 17 (requiring a 10-2 vote for conviction in

non-capital felony criminal cases); Kaplan and Saack, supra note

31 (citing OR. REV. STAT. § 136.450(1) (2015) (requiring a 10-2

vote for conviction “in a criminal action,” except for “murder or

aggravated murder”).

9

randomly chosen.”33 The convening authority—the

defendant’s commanding officer—selects (“details”)

the military personnel who, after the court screens

them for bias in the voir dire process, serve as the

panel members for the defendant’s case.34

The convening authority may detail, subject to

very few restrictions, those who are “in his [or her]

opinion . . . best qualified for the duty by reason of

age, education, training, experience, length of service,

and judicial temperament.”35

The convening

authority does not have to detail a representative

group of members based on criteria of race, gender, or

religion,36 nor does the group of members have to be

representative of a variety of military ranks or

33 United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004).

34 10 U.S.C. § 825 (2012) (describing detailing process); R.C.M.

912 (rules for voir dire screening for bias).

35 10 U.S.C. § 825 (emphasis added). A commissioned officer

defendant must have an all commissioned officer panel; an

enlisted defendant cannot be tried by a member of his immediate

unit, and may require (absent “physical conditions or military

exigencies”) at least one-third of panel members to be enlisted.

Id. Also, “[w]hen it can be avoided, no” defendant “may be tried

by a court-martial any member of which is junior to him in rank

or grade.” Id. A convening authority cannot detail members on

criteria outside Section 825 (i.e. gender), United States v.

Riesbeck, 77 M.J. 154, 158-59 (C.A.A.F. 2017); solicit volunteers,

Dowty, 60 M.J. at 176; or, purposefully detail “members of senior

grades or ranks to achieve a desired result,” United States v.

Bertie, 50 M.J. 489, 492 (C.A.A.F. 1999).

36 United States v. Gooch, 69 M.J. 353, 356, 359 (C.A.A.F. 2010)

(finding that absent proof of “improper motive” to exclude

members based on race, a convening authority could use

screening criteria precluding the detail of almost all members of

Lieutenant Colonel Gooch’s minority racial group to his trial).

10

occupations.37

By contrast, both state court and federal court

defendants have a “fundamental” constitutional right

to the “selection of a petit jury from a representative

cross section of the community.”38 This Court has

noted that a jury’s “purpose” to “guard against the

exercise of arbitrary power” is “not provided if the jury

pool is made up of only special segments of the

populace or if large, distinctive groups are excluded

from the pool.”39

Two recent examples show how the lack of

strong jury rights in a court-martial allows “the two

components of our federal system” to use successive

courts-martial “to conspire together to deprive an

individual of liberty where a single government would

be powerless to do so.”40 The first case is that of Army

Private Seth Lemasters, first tried in Gloucester

County, Virginia, for rape “by force or threat in

violation of Virginia law. A jury acquitted [Private

Lemasters] of the charge and the court ordered him

released from civilian confinement.”41

Private Lemasters’ liberty should have been

United States v. Roland, 50 MJ 66, 69-70 (C.A.A.F. 1999)

(convening authority need only establish that he or she

considered detailing members from all ranks or occupations).

38 Taylor v. Louisiana, 419 U.S. 522, 528-30 (1975).

39 Id. at 529.

40 Reply Brief, supra note 22, at 8.

41 United States v. Lemasters, No. 20111143, 2013 WL 6913001,

at *1-2 (A. Ct. Crim. App. Dec. 31, 2013), rev. denied, 73 M.J. 408

(C.A.A.F. 2014).

37

11

preserved by Virginia’s requirement that a jury—

drawn from the district where the alleged crime

occurred—unanimously find that the prosecution met

its burden of proof.42 However, Virginia prosecutors

played another card: the separate-sovereigns

exception. They had “discussed [Private Lemasters’]

case with the military trial counsel and appellant’s

company commander,” ensuring that these officers

“were present during the civilian trial,” and then:

At the conclusion of the trial, [Private

Lemasters] was turned over to his

company commander, who . . . ordered

him

into

pretrial

confinement.

Fourteen days later charges were

preferred against [him]. He was

eventually tried by court-martial and

convicted by an officer and enlisted

panel of the aggravated sexual

assault. . . .43

The second case is that of Navy Chief Rodney

Williams. After finding Chief Williams guilty of

voluntary manslaughter, a Virginia jury sentenced44

42 VA CONST. Art. I, Sec. 8 (“That in criminal prosecutions a man

hath a right . . . to a speedy and public trial, by an impartial jury

of his vicinage, without whose unanimous consent he cannot be

found guilty.”).

43 Lemasters, 2013 WL 6913001, at *2.

44 See VA CODE ANN. § 19.2-295.1 (2012) (“In cases of trial by jury,

upon a finding that the defendant is guilty of a felony. . . a

separate proceeding limited to the ascertainment of punishment

shall be held as soon as practicable before the same jury . . . . If

the jury cannot agree on a punishment, the court shall impanel

a different jury to ascertain punishment . . . .”). “The trial judge

12

him to twelve months in prison and a fine.45 But that

was not the end of Chief Williams’ ordeal: a Navy

prosecutor also attended the state trial,46 and the

Navy court-martialed him for the same acts. The

members convicted him of voluntary manslaughter, a

verdict requiring only two-thirds of the members to

convict, and sentenced him to five years’ in jail and a

bad-conduct discharge—also on a two-thirds vote.47

The separate-sovereigns exception allowed

Virginia to accomplish with military assistance what

it could not alone—imprison Private Lemasters for

ten years after his acquittal by a Virginia jury, and

imprison Chief Williams for five additional years—for

cases found wanting by juries requiring unanimity.

This Court should overrule the separate-sovereigns

exception. It allows for retrial at a court-martial

requiring fewer factfinders to be convinced beyond a

reasonable doubt of guilt or punishment after the

military gets a free preview of the defendant’s case.

may reduce a sentence but may not exceed the ‘maximum

punishment’ fixed by the jury,” making the jury sentence a

binding maximum requiring unanimity.

Batts v.

Commonwealth, 515 S.E.2d 307, 315 (Va. Ct. App. 1999).

45 Corinne Reilly, Killer again charged with murder, this time

by Navy, THE VIRGINIAN-PILOT (Jul. 9, 2011), https://pilotonline.

com/news/military/article_a569a3a8-e9cf-51c1-8bdb-1a8968805

a08.html (“[Chief] Williams . . . was . . . . Guilty of voluntary

manslaughter, the jury said, punishable by up to a decade in

prison. But when the panel came back . . . with a sentencing

recommendation, it suggested . . . 12 months, and a . . . fine.”).

46 United States v. Williams, No. 201200248, 2013 WL 1808733

at *2 (N-M. Ct. Crim. App. Apr. 30, 2013), rev. denied, 72 M.J.

456 (C.A.A.F. 2013).

47 Id. at *1; see 10 U.S.C. § 852(c) (requiring two-thirds verdict

for sentences less than death, and more than ten years’ in jail).

13

B. Unlike the DOJ’s Petite Policy, which

places uniform limits on successive federal

prosecutions, the military departments place

non-uniform and insubstantial restrictions

on successive courts-martial.

Unlike the different United States Attorneys’

offices, each military department has its own policy on

successive courts-martial. Most require no higher

level of approval for a successive court-martial than

for an ordinary general court-martial. And unlike the

DOJ, no military department requires approval of a

successive prosecution by an attorney.

1. No department follows the DOJ’s Petite

Policy of requiring a high-level attorney

to approve a successive prosecution.

Three military departments only require

approval from a general court-martial convening

authority (“GCMCA”)—a non-lawyer—for successive

courts-martial: the Army,48 Navy and Marine Corps,49

DEP’T OF THE ARMY, Army Regulation (“AR”) 27-10 Legal

Services: Military Justice, at 29, Ch. 4, ¶ 4-1 (May 11, 2016),

available at https://armypubs.army.mil/ProductMaps/

PubForm/AR_Details.aspx?ID=0902c8518003514c (providing

that for “disciplinary proceedings subsequent to exercise of

jurisdiction by civilian authorities,” the officer “exercising

[general court-martial] jurisdiction, may, at that officer’s

discretion, dispose of such charges or, by endorsement,

authorize” a successive special or general court-martial).

49 JAGMAN, supra note 18, §§ 0124(a), (c)(1) (requiring that

when “a person in the Naval service has been tried in a state”

court,” no such case “for the same act or acts” will “be referred for

trial by court-martial . . . without the prior permission of the first

48

14

and Coast Guard.50 Only the Air Force requires a

senior civilian—the Secretary of the Air Force—to

approve all successive courts-martial.51

Across the DOD, a GCMCA already has to

approve referral of any case to a general courtmartial—the only court-martial authorized to impose

felony-level punishments52 and to try all penetrative

sexual assault offenses.53 The Army, the Navy and

Marine Corps, and in most circumstances the Coast

Guard,54 require no additional approval for successive

GCMCA over the member”). Since enacting this version of the

instruction in 2007, the Navy only requires notification by a

Navy GCMCA to the Office of the Judge Advocate General. Id.

50 UNITED STATES COAST GUARD, COMDTINST M5810.1F, 60-61,

¶ 4.D.1 (Mar. 2018), available at https://media.defense.gov/

2018/Apr/06/2001900284/-1/-1/0/CIM_5810_1F.PDF (“No person

in the Coast Guard may be tried for the same acts . . . for which

the accused has been tried or is pending trial by [a]

state . . . without first obtaining authorization from the

appropriate Area Commander or [Deputy Commandant for

Mission Support] DCMS.”). Both Area Commanders, and the

DCMS, are GCMCAs in the Coast Guard. Id. at 64 ¶ 5.A.

51 DEP’T OF THE AIR FORCE, Air Force Instruction (“AFI”) 51-201,

at 35 2. ¶ 18.3 (Dec. 8, 2017), available at http://static.e-publishi

ng.af.mil/production/1/af_ja/publication/afi51-201/afi51-201.pdf

(“Only the Secretary of the Air Force may approve initiation of

court-martial . . . against a member previously tried by a state or

foreign court for substantially the same act or omission, regardless of whether the member was convicted or acquitted . . . .”).

52 See supra notes 25 and 26.

53 See 10 U.S.C. § 818 (2012) (stating that “only general courtsmartial have jurisdiction over an offense specified in section

856(b)(2),” which includes penetrative offenses against adults

and children under 10 U.S.C. §§ 920(a)-(b), 920b, 925).

54 Though Coast Guard Area Commanders—uniformed officer

GCMCAs—do not have to obtain additional permission, the

15

courts-martial against those accused of serious

criminal offenses.

In contrast, the DOJ requires under its Petite

Policy that any successive “prosecution must be

approved by the appropriate Assistant Attorney

General.”55 In Rinaldi v. United States, the DOJ

honored the Petite Policy by moving to dismiss the

federal conviction of Rinaldi, where the trial counsel

“had not obtained the requisite approval” from the

appropriate Assistant Attorney General.56

This Court noted that “the overriding purpose

of the Petite Policy is to protect the individual from

any unfairness associated with needless multiple

prosecutions.”57 By requiring the lower court to allow

withdrawal of Rinaldi’s conviction—without itself

examining whether the facts and circumstances of the

successive prosecution met the Petite Policy—this

Court vindicated the importance of obtaining highlevel approval before a successive prosecution.

The Petite Policy constrains almost all federal

“charging decisions” after a state prosecution.58 It

applies even if a prior state prosecution resulted in

“dismissal or other termination of the case on the

Coast Guard does have non-Area Commander GCMCAs, who

must ask an Area Commander for permission. Supra note 50.

55 USAM, supra note 9, § 9-2.031.

56 434 U.S. 22, 24 n.5, 24-25 (1977).

57 Rinaldi, 434 U.S. at 31.

58 USAM, supra note 9, § 9-2.031(B) (excepting cases “where the

prior [state] prosecution involved only a minor part of the

contemplated federal charges”).

16

merits after jeopardy has attached,” short of a

conviction or acquittal.59 Jeopardy attaches in civilian courts when the “jury is empaneled and sworn,” or

after “the first witness is sworn” in a bench trial.60

Substantively, the Petite Policy first requires a

showing that the criminal “matter . . . involves a

substantial federal interest.”61 Matters “within the

national investigative or prosecutorial priorities

established by the Department are more likely than

others to satisfy this requirement.”62

Second, “the prior prosecution” must have “left

that [substantial federal] interest demonstrably

unvindicated,” for instance, by imposing a sentence

“manifestly inadequate in light of the federal interest

involved.”63 This must overcome a “presumption” that

the “prior prosecution, regardless of result, has

vindicated the relevant federal interest.”64

Finally, the Petite Policy requires that “the

admissible evidence probably will be sufficient to

obtain and sustain a conviction by an unbiased trier

of fact” under a beyond reasonable doubt standard.65

59 USAM § 9-2.031(B)-(C).

60 Crist v. Bretz, 437 U.S. 28, 37 n.15, 38 (1978).

61 USAM, supra note 9, § 9-2.031(A).

62 Id. § 9-2.031(D).

63 Id. § 9-2.031(A).

64 Id. § 9-2.031(D).

Id. § 9-2.031(D) (citing id. § 9-27.220, comment (“[N]o

prosecution should be initiated against any person unless the

attorney for the government believes that the admissible

evidence is sufficient to obtain and sustain a guilty verdict by an

unbiased trier of fact.”)).

65

17

2. Most military departmental limits on

successive prosecutions are insubstantial

compared to the DOJ’s Petite Policy.

The Air Force has the most restrictive policy on

successive prosecutions—authorizing them in “only

the most unusual cases when justice and good order

and discipline can be satisfied in no other way.”66

However, neither the Air Force nor other departments

follow the Petite Policy conditioning a successive

prosecution on admissible evidence probably

sufficient to prove charges beyond reasonable doubt.67

The Army’s successive court-martial regulation

is less protective of an accused’s rights than the Petite

Policy. It does not presume that a state trial satisfies

a military disciplinary interest.68 Also, the Army only

applies this policy to state trials where jeopardy

attached “within the meaning of UCMJ, Art. 44.”69

66 AFI 51-201, supra note 51, at 35, ¶ 2.18.3.

67 Even after recent Congressional amendments, the advice from

judge advocate prosecutors to the convening authorities who

make all charging decisions, including successive courts-martial,

is and will remain “nonbinding.” See FY 2017 NDAA, § 5204,

130 Stat. at 2906-07 (amending 10 U.S.C. § 833 to require judge

advocates to provide “non-binding guidance” to convening

authorities based in part on the principles in the United States

Attorneys’ Manual, supra note 9, § 9-2.031(B)).

68 See AR 27-10, supra note 48, at Ch. 4 ¶ 4-2 (stating that a

soldier “who has been tried in a civilian court may, but ordinarily

will not, be tried by court-martial . . . for the same act over which

the civilian court has exercised jurisdiction,” if the soldier’s

GCMCA “personally determine[s] that” a court-martial “is

essential to maintain discipline in the command”).

69 Id. at 29 (citing 10 U.S.C. § 844 (2012)).

18

Jeopardy does not attach in a court-martial with a

members panel until after introduction of evidence,70

making the Army rule less protective of a military

accused than the civilian protection in Crist v. Bretz.71

The Department of the Navy claims to restrict

successive courts-martial to “unusual cases” where

they are “essential in the interests of justice,

discipline, and proper administration within the

Naval service.”72 However, it also requires only one of

three “criteria” for a GCMCA to approve a successive

court-martial: that the “civilian proceedings

concluded without conviction for any reason than

acquittal,” that a “unique military interest was not or

could not be adequately vindicated,” or that the

“conduct leading to trial before a State . . . court has

reflected adversely upon the Naval service.”73

One author has observed that “[t]his last

category” in the Navy successive courts-martial

instruction seems to swallow the rule” because

“virtually every crime reflects adversely upon the

military.”74 The first category in this Navy regulation,

that the “civilian proceedings concluded without

conviction for any reason other than acquittal, is also

broader than the Petite Policy in that the Navy

70 United States v. Easton, 71 M.J. 168, 170 (C.A.A.F. 2012).

71 437 U.S. at 37 n.15.

72 JAGMAN, supra note 18, §§ 0124(a).

73 Id. § (b) (“Referral for trial . . . within the terms of this policy

shall be limited to cases that meet one or more . . . criteria[.]”).

74 Major Charles L. Prichard, Jr., The Pit and the Pendulum: Why

the Military Must Change Its Policy Regarding Successive StateMilitary Prosecutions, 414 ARMY LAWYER 1, at 19 (Nov. 2007).

19

suggests that any incomplete civilian proceeding,

including those in which jeopardy attached, could

justify a successive court-martial.

Although the Coast Guard requires “complete

justification as to why deviation from the general

policy against second trials is appropriate,”75 it “does

not detail what the justification should include or

what types of cases or circumstances might justify a

successive prosecution.”76

The typical military combination of a low-level

for approval requiring little explanation leads to

successive

courts-martial

without

adequate

justification. One author notes that in the case of

Army Staff Sergeant David Tillery—tried in a

successive court-martial after a trial judge dismissed

a North Carolina state murder charge for “lack of

evidence”77 after a jury was empaneled—the “GCMCA

testified that he felt punitive action was necessary,

giving no further explanation” as to why he needed to

convene a successive court-martial.78 Staff Sergeant

Tillery went from no criminal conviction, to serving a

life sentence after his successive court-martial.79

In the case of Chief Williams, the Navy appears

75 COMDTINST M5810.1F, supra note 50, at 60-61 ¶ 4.D.1.

76 Prichard, supra note 74, at 19.

WRAL.COM, Man Accused of Murdering Lover’s Husband

Faces Court Martial (May 12, 2003), https://www.wral.com

/news/local/story/105214/.

78 Prichard, supra note 74, at 18 n.202 (citation omitted).

79 Tillery v. Shartle, No. CV 16-0204-TUC-CKJ (LAB), 2016 WL

7229139, at *2 (D. Ariz. Dec. 14, 2016).

77

20

to have based its decision to successively courtmartial him, at least in part on his choice of wardrobe

during his state trial: his Navy uniform.80 This

sounds more like petty revenge, than of a substantial,

unvindicated federal interest that would have been

required under the Petite Policy.

3. The military departments do not

enforce their proclaimed policies against

successive prosecutions to the degree that

the DOJ enforces the Petite Policy.

The DOJ, in Rinaldi and in many other cases,81

has moved to vacate convictions after United States

Attorneys have conducted successive prosecutions

without following the Petite Policy. Though lower

courts have held that defendants cannot force the

DOJ to follow the Policy,82 the Policy itself provides

that with very few exceptions, the “United States will

move to dismiss any prosecution governed by this

policy in which prior approval was not obtained.”83

80 Williams, 2013 WL 1808733 at *2 (noting Navy prosecutor at

the state trial “later opined that the presence of the appellant in

uniform and additional chief petty officers in uniform in the

gallery had an untold impact on the jury members”).

81 E.g., Thompson v. United States, 444 U.S. 248, 249 (1980) (per

curiam) (listing cases).

82 United States v. Snell, 592 F.2d 1083, 1088 (9th Cir. 1979)

(noting a “defendant cannot invoke the Petite Policy as a bar”).

83

USAM, supra note 9, § 9-2.031(E) (excepting only

unauthorized successive prosecutions where first, “the Assistant

Attorney General retroactively” finds “that there [are] unusual

or overriding circumstances justifying retroactive approval; and

second, the prosecution would have been approved had approval

been sought in a timely fashion”).

21

In contrast to the Petite Policy, none of the

military departments require dismissal of a courtmartial conviction where a convening authority fails

to comply with a departmental regulation. There are

numerous examples of convening authorities simply

disregarding departmental regulations,84 with no

remedial action by the government.85 This shows

that, unlike the DOJ’s policy and practice, there is no

meaningful constraint on the military’s use of

successive courts-martial. Accordingly, this Court

should overrule the separate-sovereigns exception

which enables this arbitrary government action.

II. THE SEPARATE-SOVEREIGNS EXCEPTION

SHOULD BE OVERRULED BECAUSE IT

ALLOWS FOR CONTINUED HARASSMENT

BY SUCCESSIVE COURTS-MARTIAL OF

RETIRED MILITARY, AND OF ACTIVE

DUTY MILITARY WHOSE ENLISTMENTS

ARE INVOLUNTARILY EXTENDED.

Military jurisdiction is status-based. Congress

has subjected to military jurisdiction, among others,

84 E.g., Kohut, 44 M.J. at 246-50 (convening authority failed to

follow Navy JAGMAN instruction then in effect required the

GCMCA to get “permission of the Judge Advocate General” to

court-martial Fireman Kohut for assaults previously “the subject

of a state criminal proceeding”); United States v. Culpepper, No.

ACM 34058, 2002 WL 13154 at *2 (A.F. Ct. Crim. App., Dec. 11,

2001) (convening authority failed to obtain required permission

from the Secretary of the Air Force to conduct court-martial for

larceny of stolen property already subject to a state conviction).

85 In fact, after Kohut, the Navy relaxed its rules for successive

courts-martial, changing the JAGMAN to require notification by

a GCMCA, rather than seeking approval. See supra note 18.

22

those on active duty, those retired from the active

duty military, and those reservists on active duty.86

The successive sovereigns exception unjustly

allows the military to prosecute an active duty retiree

previously tried by a state court, even though this

retiree’s only real connections to the military are (1)

the theoretical ability to be recalled to active duty,87

and (2) a monthly pension.88 In Hennis, the Army

convened a successive court-martial twenty-one years

after acquittal by a state court, and two years after his

retirement.89 As one author asked: “[w]hat special

interest does the Army have in prosecuting someone

who was no longer in the military for a twenty-one

year old crime, especially when the Army did not

pursue a court-martial when the crime occurred?”90

A. The military routinely places active duty

members on “legal hold” to involuntarily

extend enlistments for a court-martial.

An enlisted member of the military’s contract

ends on a specified date. However, for a member of

the active duty forces to be discharged from an

enlistment, he or she generally must first: (1) receive

delivery of a valid discharge certificate; (2) have a

86 10 U.S.C. § 802 (2012).

87 10 U.S.C. § 688 (2012) (allowing retiree recall in emergency).

See generally Barker v. Kansas, 503 U.S. 594, 605 (1992)

(holding that “[f]or purposes of [taxation], military retirement

benefits” are “considered deferred pay for past services”).

89 75 M.J. at 802.

90 Prichard, supra note 74, at 16.

88

23

final accounting of pay; and (3) complete the ‘clearing’

process required under service regulations.91

Each department has regulations authorizing

commands to stop the discharge of a member,92 if they

take an “action with a view to trial”—apprehension,

imprisonment, “preferral of charges,”93 or even just a

“[c]riminal investigation[.]”94 These regulations place

a member in a “legal hold” status. There, they are still

subject to court-martial while “awaiting discharge

after expiration of [the] terms of enlistment.”95

While on a legal hold, a member does not

receive pay if placed in pretrial detention pending

court-martial (unless later acquitted by courtmartial).96 Often the military imprisons or stations

these members at distant bases, long after the

member’s enlistment contract has expired.

For instance, in United States v. Webb, Senior

Airman Webb’s enlistment expired October 23, 2008.97

91 See United States v. Christensen, 78 M.J. 1, 5 (C.A.A.F. 2018)

(citing 10 U.S.C. § 1168 (2012)).

92 E.g., DEP’T OF THE NAVY, MILITARY PERSONNEL MANUAL

(MILPERSMAN) § 1160-050, at 6, 8-9 (2007) (authorizing both

“[i]nvoluntary extension[s]” of an enlistment “due to criminal

proceedings,” and “extension[s] for completion of U.S. civilian

criminal proceedings”).

93 R.C.M. 202(c)(2), MANUAL FOR COURTS-MARTIAL, UNITED

STATES (2016).

94 67 M.J. 765, 766 (A.F. Ct. Crim. App. 2009).

95 10 U.S.C. § 802(a) (2012).

96 United States v. Fischer, 61 M.J. 415, 421-22 (C.A.A.F. 2005).

97 Webb, 67 M.J. at 766.

24

Even though the Air Force issued his discharge

paperwork and a final accounting of pay, a military

judge found continuing court-marital jurisdiction over

Senior Airman Webb because his command started a

criminal investigation and placed him on legal hold

seven days before his enlistment was to end.98

B. The separate-sovereigns exception allows

the military to place members facing state

trials on “legal hold” for successive courtsmartial, long after their enlistments expire.

The separate-sovereigns exception allows the

military to take actions “with a view to trial” against

members facing a state prosecution, and thereby

retain them on legal hold even after their enlistments

expire. For instance, in United States v. Burke,

Kentucky charged Army Sergeant Burke four times

with a double murder.99 After four mistrials between

2007-2011, the State gave up.100 Sergeant Burke’s

“enlistment [had] ended while he was in the custody

of civilian authorities.”101 However, because of the

Army’s ability to place Sergeant Burke on legal hold:

Burke was never processed out of the

98 Id. at 768-69, 772.

99 United States v. Burke, No. 20120448, 2015 WL 5472729, at *1

(A. Ct. Crim. App. Feb. 26, 2015), aff’d, 75 M.J. 26 (C.A.A.F.

2015).

100 Id.

101 Charles Gazaway, Military panel finds murder suspect Brent

Burke guilty on all charges, WAVE 3 NEWS (May 8, 2012),

http://www.wave3.com/story/18184922/military-panel-reachesfinding-in-court-martial-of-double-murder-suspect-brent-burke.

25

Army [and] still considered to be on

active duty. He was taken into custody

by military police and returned to Fort

Campbell where the government filed

the murder charges against him. He

was held in . . . [j]ail while awaiting

general court-martial.”102

The Army charged and convicted Sergeant

Burke for double murder, among other charges, long

after his enlistment had expired.103

In United States v. Christensen, Private First

Class Christensen’s command had mailed his

discharge paperwork and processed him out of the

Army.104 However, when civilian authorities jailed

him on suspicion of sexual assault, a senior prosecutor

requested the Army suspend the final accounting of

Christensen’s pay, testifying that he wanted to

maintain military jurisdiction so he could “confirm

that the civilians were going to prosecute this [sexual

assault case] in a way that we felt was appropriate.”105

After civilian authorities discussed allowing

Private First Class Christensen to plead to a lesser

charge, the Army court-martialed him.106 Though the

CAAF vacated the conviction for lack of jurisdiction,107

the senior prosecutor’s testimony exemplifies how the

military uses the separate-sovereigns exception and

102 Id.

103 Burke, 2015 WL 5472729, at *1.

104 78 M.J. at 2-3.

105 Id. at 3, n.2.

106 Id. at 3.

107 Id. at 6.

26

successive courts-martial to exploit discharge criteria.

It also shows how the separate-sovereigns doctrine

makes it practically impossible for a military

defendant to reach a plea deal protecting his interests

in a state trial, where the military can retain the

defendant and try the same acts by court-martial even

long after an enlistment ordinarily should have ended.

In the case of Petty Officer Greening, the Navy

engaged in a similar course of conduct.

The

Commonwealth of Virginia indicted Petty Officer

Greening for an accidental shooting on August 7,

2013.108 After his enlistment expired and while

Virginia’s proceedings continued, military authorities

involuntarily “extended [him] on active-duty[.]”109

Even though military authorities did not clarify

that the extension was for the purpose of a successive

court-martial—thereby failing to comply with Navy

internal regulations for nearly a year—the military

court held that Petty Officer Greening suffered no

harm because the Navy’s legal hold regulations were

not intended to “protect” his “rights.”110 Petty Officer

Greening “entered into a plea agreement with the

Commonwealth to involuntary manslaughter,” and

received “three years’ confinement, with two years

and six months suspended.”111

108 Greening, 2018 WL 154779, at *1.

109 Id. at *2.

Petty Officer Greening initially signed “voluntar[y]”

requests to stay on active duty, but after he later refused to sign

additional such requests, his command required him to sign

involuntary extensions of his active duty enlistment. Id.

110 Id. at *5 (citing Kohut, 44 M.J. at 250).

111 Id. at *1.

27

After Petty Officer Greening’s release from jail,

the Navy jailed and successively court-martialed him

for involuntary manslaughter because of his status as

an involuntarily extended active duty member of the

military. He pleaded guilty, again: and received jail

time again—thirty-nine months’ confinement from

the Navy, with no portion suspended.112

These cases demonstrate how the military

exploits the separate-sovereigns exception to

involuntarily retain members on active duty for

successive courts-martial. As this Court noted in

Bartkus v. Illinois, “at some point the cruelty of

harassment by multiple prosecutions by a

State . . . offends due process.”113 Being involuntarily

retained in the military for a successive court-martial,

or successively court-martialed as a retiree are points

at which this harassment is unjustifiable, and which

support repeal of the separate-sovereigns exception.

III. THE FACTUAL PREMISE FOR TRIAL BY

COURT-MARTIAL UNDER THE SEPARATESOVEREIGNS EXCEPTION IS OBSOLETE,

CONTRARY TO THE FRAMERS’ INTENT,

AND SHOULD BE OVERRULED.

A. Using the separate-sovereigns exception

for

successive

courts-martial

is

inconsistent with the Framers’ intent.

As the Court noted in Reid v. Covert, during

112 Greening, 2018 WL 154779, at *1.

113 Bartkus v. Illinois, 349 U.S. 121, 127 (1959).

28

the “lifetime” of “those who wrote the Constitution,”

court-martial jurisdiction in Great Britain was

incredibly narrow—it had not even covered the right

to “try soldiers for any offenses in time of peace.”114

Indeed, “the trial of soldiers by courts-martial and

the interference of the military with the civil courts

aroused great anxiety and antagonism not only in

Massachusetts but throughout the colonies.”115

The Articles of War originally authorized

jurisdiction over only “offenses against civilians” of a

military nature, and further restricted this to where

“no application for a civilian trial was made by or on

behalf of the injured civilian.”116 These Articles,

enacted by the Continental Congress and used

through passage of the Constitution and Bill of

Rights117 required military authorities to “deliver

over” to “the civil magistrate” any “officer or soldier”

who “committed any offense against the persons or

property of the good people of any of the United

American States,” or else the military authorities

themselves would be punished.118

354 U.S. 1, 23 (1957) (discussing English common law

traditions prior to 1713) (four-vote majority). But see Solorio v.

United States, 483 U.S. 435, 443 (1987) (stating that the British

Articles of War of 1774 “had jurisdiction over offenses punishable

under civil law”) (citation omitted).

115 Reid, 354 U.S. at 28.

116 Solorio, 483 U.S. at 444.

117 See Act of Sept. 29 1789, Ch. 25, 1 Stat. 95 (passing Articles

of War into law, in the first session of the first Congress).

118 W. WINTHROP, MILITARY LAW AND PRECEDENTS 964 (2d ed.

1920) (quoting American Articles of War of 1776, § X, Art. 1

(Sept. 20, 1776)).

114

29

This Court noted in Reid that “[i]t was not

until 1863 that Congress” greatly expanded the

jurisdiction of courts-martial when it “first

authorized the trial of soldiers, in wartime, for civil

crimes . . . by courts-martial.”119

However, even after this great expansion of

court-martial jurisdiction, the “prohibition on double

jeopardy” largely continued to “protect[ the] liberty”

of servicemembers “from government overreach.”120

Colonel Winthrop, referred to by this Court as the

“Blackstone of Military Law,”121 wrote in his 1920

treatise that the “plea of former trial for the same

offense”—double jeopardy—did preclude successive

courts-martial for these civil crimes:122

[A] soldier convicted by a general courtmartial, under Art. 21 or 22, of an

offering of violence or mutinous act

which resulted in the killing of a

superior officer, would remain liable to

an indictment for murder in a State or

U.S. Court, on account of the homicide

involved; and vice versa. [But w]here

indeed the offenses are crimes of which

military courts are invested with

jurisdiction concurrently with the

119 354 U.S. at 23 n.42 (emphasis added, citation omitted).

Amicus Brief of Constitutional Accountability Center and

Cato Institute at 7, Gamble v. United States, No. 17-646 (Dec. 4,

2018) (citation omitted).

121 Ortiz, 138 S. Ct. at 2175.

122 W. WINTHROP, supra note 118, at 259-65.

120

30

criminal courts, (as for example, the

crimes cognizable by courts-martial

under Art. 58,123 in time of war) the

same are not distinct but identical in

law, and an acquittal or conviction of

one of such offenses . . . in a civil court,

will be a complete bar to a prosecution of

the same in a military court, and vice

versa.124

In other words, the civilian trial for murder

would not preclude a court-martial for mutiny—a

uniquely military offense. However, the civilian trial

would bar a successive court-martial for murder. This

is because murder was a “common law” offense,125 only

punishable by court-martial in wartime under the

Fifty-Eighth Article of War. Unfortunately, by the

time this Court fully embraced the separatesovereigns exception in the 1950s,126 military courts

123 WINTHROP, supra note 118, at 666-67 (“Art. 58. In time of war,

insurrection, or rebellion, larceny, robbery, burglary, arson,

mayhem, manslaughter, murder, assault, and battery with an

intent to kill, wounding, by shooting or stabbing, with an intent

to commit murder, rape, or assault and battery with an intent to

commit rape, shall be punished by the sentence of a general

court-martial, when committed by persons in the military service

of the United States, and the punishment in any such case shall

not be less than the punishment provided, for the like offense, by

the laws of the State, Territory or District in which such offense

may have been committed.”).

124 Id. at 264-65 (emphasis added).

125 Id. at 671.

126 See Reply Brief, supra note 22, at 12 (“The [separatesovereigns] doctrine fully crystallized in a pair of 1959 cases,

Bartkus, 359 U.S. 121, and Abbate, 359 U.S. at 196, which

31

“lost the plot” of this liberty-preserving distinction.

B. Courts-martial have transformed from

summarily punishing military offenses

to judicially enforcing a comprehensive

criminal code duplicative of state law in

cooperation with state investigators.

Successive courts-martial should also be found

unconstitutional because the “facts have so

changed”—from the separate military justice system

that existed at the time of the Framers to the

integrated system of today—“as to have robbed the old

rule of significant . . . justification.”127

The first changed fact is that court-martial

jurisdiction has widely expanded—from trying only

military offenses, to trying servicemembers for

“garden-variety crimes”—no matter how “unrelated to

military service.”128 Court-martial jurisdiction is even

more expansive than the general federal criminal

jurisdiction, which itself “has become so bloated that

‘the federal government has [now] duplicated

virtually every major state crime.’”129 Courts-martial

may try a defendant for “all disorders and neglects to

the prejudice of good order and discipline in the armed

blessed, respectively, state prosecution following a federal

conviction and federal prosecution following a state acquittal.”).

127 Brief for Petitioner at 42 (citing Planned Parenthood of Se.

Penn. v. Casey, 505 U.S. 833, 855 (1992)).

128 Ortiz, 138 S. Ct. at 2174.

129 Brief for Petitioner at 43 (citing Edwin Meese III, Big

Brother on the Beat: The Expanding Federalization of Crime, 1

TEX. REV. L. & POL. 1, 22 (1997)) (alteration in petitioner’s brief).

32

forces;” for any such acts or omissions which “bring

discredit upon the armed forces;” and, for any noncapital violation of state or federal law.130

The second changed fact is the heightened

degree of state and military cooperation: “military

criminal investigators typically work very closely with

state investigators when crimes involve both

jurisdictions.”131

This greatly expanded scope of military justice,

enforced by deep cooperation between state and

military authorities, “makes it particularly easy for

federal and state governments to work together to

subject individuals to repeated harassment for a

single offense . . . the type of government overreach

that the Double Jeopardy Clause was adopted to

prevent.”132 For instance, in the case of Master

Sergeant Hennis, “the state did all the investigative

work and seems to have turned to the Army as its

agent in carrying out the second trial only because it

is constitutionally barred from doing so.”133 And in

the case of Staff Sergeant Tillery:

[T]he state . . . did all the investigative

work and handed the cases to the Army

six months after [Staff Sergeant]

130 10 U.S.C. § 934 (2012).

131 Prichard, supra note 74, at 16.

132 Amicus Brief of Constitutional Accountability Center and

Cato Institute at 10 (citing Akhil Reed Amar & Jonathan L.

Marcus, Double Jeopardy Law After Rodney King, 95 COLUM. L.

REV. 1, 9-10 (1995) (noting “the increased level of federalstate cooperation in enforcing criminal laws”)).

133 Prichard, supra note 74, at 16.

33

Tillery’s acquittal and two and a half

years after the crime. The Army retried

the state’s case with the same witnesses,

no additional investigation, and with the

state’s record of trial in the Army

prosecutor's hands. Did the Army truly

have a special interest separate from the

state’s, or was this a thinly veiled

attempt by the state to prosecute [him]

again by using the Army to avoid the

Double Jeopardy Clause? 134

Today’s broad court-martial jurisdiction would

be unrecognizable to the Framers. The military

departments, able to administratively separate—fire

for cause—members who committed civilian

crimes,135 do not need to successively court-martial

these military members under the separatesovereigns exception. This exception only serves to

cause a “continuing state of anxiety and insecurity”136

amongst those who, whatever their other failings may

be, bravely volunteered to serve our country.

CONCLUSION

This Court should find that the separatesovereigns exception, which permits the disfavored

treatment of servicemembers at successive courts134 Prichard, supra note 74, at 16-1s7.

135 See, e.g., DEP’T OF THE NAVY, MILPERSMAN, §§ 1900-1999

(governing administrative separations of enlisted sailors); DEP’T

OF THE NAVY, Secretary of the Navy Instruction 1920.6C (Sept.

20, 2011) (authorizing administrative separations of naval

officers).

136 Brief for Petitioner at 27 (quoting Green v. 355 U.S. at 187).

34

martial—just because they volunteered to serve our

country—is unconstitutional.

Respectfully submitted,

DANIEL E. ROSINSKI

LT, JAGC, U.S. Navy

Counsel of Record

REBECCA S. SNYDER

Deputy Director

Counsel

U.S. Navy-Marine Corps

Appellate Defense Division

1254 Charles Morris St, SE,

Suite, 100

Washington, D.C. 20374

202-685-8506

202-685-7094

daniel.e.rosinski@navy.mil

rebecca.s.snyder@navy.mil

SALOMEE G. BRIGGS

LT, U.S. Coast Guard

Counsel

JOHN C. REARDON

CDR, U.S.C.G., Chief,

Defense Services, Counsel

U.S. Coast Guard Appellate/

Defense Services Division

2703 Martin Luther King Jr.

Ave, SE,

Washington, D.C. 20593

202-685-7389

202-372-3750

salomee.g.briggs@uscg.mil

john.c.reardon@uscg.mil

JANE E. BOOMER

Col, USAF, Counsel

Chief, Appellate Defense

Division

SHANE A. MCCAMMON

Maj, USAF, Counsel

Deputy Chief, Appellate

Defense Division

1500 W. Perimeter Road

Suite 1100

JB Andrews, MD 20762

(240) 612-4770

jane.e.boomer.mil@mail.mil

shane.a.mccammon2.mil

@mail.mil

CHRISTOPHER D. CARRIER

LTC, JA, U.S. Army

Counsel

ELIZABETH G. MAROTTA

COL, JA, U.S. Army

Counsel

U.S. Army Legal Services

Agency

9275 Gunston Road

Fort Belvoir, VA 22060

703-695-9853

703-693-0647

christopher.d.carrier.mil@

mail.mil; elizabeth.g.

marotta.mil@mail.mil

35