Amicus Curiae Brief — Gamble v. United States, 139 S. Ct. 582 (2018) (No. 17-646)
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No. 17-646
IN THE
Supreme Court of the Hnited States
TERANCE MARTEZ GAMBLE, Petitioner,
Vv.
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 REBECCA S. SNYDER
LT, JAGC, U.S. Navy Deputy Director
Counsel of Record Counsel
U.S. Navy-Marine Corps U.S. Navy-Marine Corps
Appellate Defense Division Appellate Defense Division
1254 Charles Morris St, 1254 Charles Morris St,
SE, Suite 100 SE, Suite 100
Washington, D.C. 20374 Washington, D.C. 20374
202-685-8506 202-685-7094
danieLe.rosinaki@navy.mil rebecca.s.snyder@navy.mil
Counsel for Amici Curiae (additional counsel listed inside)
September 11, 2018
ASA SNE EI INES OTOOCSOC ARES
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
dr. 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
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
ELIZABETH G. MAROTTA
COL, JA, USA, Counsel
Chief, Defense Appellate
Division, U.S. Army Lega!
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 ...................0<0-0c0-0ce0e+e00« iv
INTEREST OF AMICI CURIAE.....0.0.....0...00000-000000--- l
SUMMARY OF ARGUMENT |. eee 2
a i 4
|. THE SEPARATE-SOVEREIGNS EXCEPTION
SHOULD BE OVERRULED BECAUSE IT
LOWERS THE GOVERNMENTS BURDEN BY
ALLOWING RETRIAL AT COURT-MARTIAL ON
A NON-LAWYER’S DECISION, WITHOUT STATE
SS TIE tictnenncnenmsersnesemnsansnseceee 4
A. The lack of a strong jury trial right in courts-
martial 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
3. The military departments do not enforce their
proclaimed policies against successive
ll. 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
SERED EIUEEDS consescsunevesssnssonsensusnsnnssnsensseuscimsunestenesen 22
A. The military routinely places active duty
members on “legal hold” to involuntarily a
enlistments for a court-martial...........................
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
Ill. THE FACTUAL PREMISE FOR TRIAL BY
COURT-MARTIAL UNDER THE SEPARATE-
SOVEREIGNS EXCEPTION IS OBSOLETE,
CONTRARY TO THE FRAMERS’ INTENT, AND
SHOULD BE OVERRULED. ..................2...0...00-00+- 28
A. Using the separate-sovereigns exception for
successive courts-martial is inconsistent with the
ul
B. Courts-martial have transformed from
summarily punishing military offenses to
judicially enforcing a comprehensive criminal code
duplicative of state law in — with state
IIIT bic tinceddaniatntepnnnenitieinintimetumntansinenientin 32
NII cvcndactsieeninsrchdnbtertpesininaienbeaestineniensicaiasatints 34
Table of Authorities
United States Constitution
i i, eae passim
8 nama 7-8
Supreme Vourt of the United States
Abbate v. United States,
ETTORE aT a 7, 31
Barker v. Kansas,
ES CS Re 23
Bartkus v. Illinois,
EE ER = 28, 31
Crist v. Bretz,
SNe me 17, 19
Duncan v. Louisiana,
TT A a cS Ee eT ee 7
Green v. United States,
TY Te 3, 34
Heath v. Alabama,
ER Se Re eae 5
Ortiz v. United States,
138 S. Ct. 2165 (2018) .........000. 4-5, 7, 30, 32
Planned Parenthood of Se. Penn. v. Casey,
ESSE NE 32
Reid v. Covert,
Ee 28-30
Rinaldi v. United States,
ee es 16
Solorio v. United States,
TE 29
Thompson v. United States,
ae ee 21
Taylor v. Louisiana,
TN eae eR 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
I ess 10
United States v. Christensen, 78 M.J. 1
EEE Le 24, 26
United States v. Cuellar, 27 M.J. 50
ES ee 5
United States v. Dowty, 60 M.J. 163
ESS SE a ee 9-10
United States v. Easton, 71 M.J. 168
EEE Sy 19
United States v. Fischer, 61 M.J. 415
es 24
United States v. Gooch, 69 M.J. 353
EE SSS Ee ee 10
United States v. Kohut, 44 M.J. 245
EE Ee 6, 22, 27
United States v. Mitchell, 58 M.J. 446
SEES 8
United States v. Riesbeck, 77 M.J. 154
cee 10
United States v. Roland, 50 Md 66
EE 11
United States v. Schneider, 38 M.J. 387
| ES ES 5
United States Military Courts of Criminal
Appeal
United States v. Burke, No. 20120448,
2015 WL 5472729 (A. Ct. Crim. App.
ERE Eee DE 2a 25-26
United States v. Culpepper, No. ACM 34058,
2002 WL 13154 (A.F. Ct. Crim. App.,
United States v. Greening, No. 201700040, 2018
WL 1547779 (N-M. Ct. Crim. App.
CT 1, 3, 27-28
United States v. Hennis, 75 M.J. 796
(A. Ct. Crim. App. 2016).......................c000eee00e- 1, 23
United States v. Lemasters, No. 20111143,
2013 WL 6913001 (A. Ct. Crim. App.
EERE a ees ea 11-12
United States v. Williams, No. 201200248,
2013 WL 1808733 (N-M. Ct. Crim. App.
pT ES Eee 13
Webb v. United States, 67 M.J. 765
Fe kG 24
Other Court Cases
Batts v. Commonwealth, 515 S.E.2d 307
og ES ere 13
Tillery v. Shartle, No. CV 16-0204-TUC-CK.J (LAB),
2016 WL 7229139 (D. Ariz. Dec. 14, 2016)......... 20
United States v. Snell, 592 F.2d 1083
SR ESI Sr a ee 21
Federal Statutes
BD UB, BG GE ccescccccccccccccccoccccccseccsesccscccesceees 23
10 U.S.C. § 802 (2012) .......... 2c ccccce eee 2, 3, 23-24
Be ee BD cncsccicesccescoscrcccnvcccosesssseccoestecsvess 2
TTT ES Oren 8
BD Be ID cvcccccccccecccccccescccccscovecsoovessees 8, 15
A EE 5
10 U.S.C. § GBB GROVE) ..........00..cccccccccesccscoescccesecees 2,10
BP le Be IID secoscccccccnecescosccsssessocsesscossesosinss 18
iia aa cn crcnirenscntipesintnll 18
10 U.S.C. § 852 (2012) 2.0.0... eee 2, 8-9, 13
BD CBI, BG GED cccccccccccccccccccccccscocsscccccscoscscscess 15
TT ae ET ee mn l
TS ae ene l
TTT i nnssenstnnientasmntstrencesounsenniaeianiaiees 8
NLT 15
TIT a EN ER 15
sn a ecinaeninnumecenieiil 15
TET TR 33
i ncemmmissiiainieill 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
5 ae 8
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL
YEAR 2017, Pub. L. No. 114-328, 130 Stat. 2000
GETTY doisdoindiiniinenasisontactiientnentintiaiiimeatineaents 2, 6, 8-9, 18
State Constitutional Provisions and Statutes
PE FE 9
Or. REV. STAT. § 136.450 (2015) .....................ccc0cccceees 9
VA CODE ANN. § 19.2-295.1 (2012)..................000000cc0e 12
. gS EE A nO 12
Rules for Courts-Martial
RULE FOR COURTS-MARTIAL 202 ©0000... 00.00.00. ccc 24
RULE FOR COURTS-MARTIAL 907 .0..0..0.....00c0cccccccccceneeee 5
RULE FOR COURTS-MARTIAL 907 ....00..........60.0ccccccceees 10
Other Authorities
Akhil Reed Amar & Jonathan L. Marcus, Double
Jeopardy Law After Rodney King, 95 COLUM. L.
SEEING Ue TTT adinciunttcintesnipadiinnssienimidbentidbpesiiantiannanmuets 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,
—, S$ % 8) (ia 9
Ashley Garcia, Patching the Exhaust Pipe: A
Historical Analysis of Oregon’s Non-Unanimous
Jury Law in Criminal Cases, 54 WILLAMETTE L.
SRR RES ene oe a ee 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-in-
court-martial-of-double- murder-suspect-brent-
Hii csscieniiabitasgnitnnedusindidansdahineiddhiepabiaidbeaeiiatinitbiatniniaieamnnads 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/FY 17AnnualReport.pdf............................. l
Cor} Reilly, Kill nal 1 with *
this time by Navy, THE VIRGINIAN-PILOT (Jul. 9,
2011), https://pilotonline.com/news/military/
article _a569a3a8-e9cf-5 lc 1-8bdb-1a8968805a08
DEP’T OF THE AIR FORCE, Air Force Instruction 51-
201, at 35, ¥ 2.18.3 (Dec. 8, 2017), available at
http://static.e-publishing.af.mil/production/1/af_ja/
publication/afi5 1-20 1/afi51-201.pdf.............. 15, 18
DEP’T OF THE ARMY, Army Regulation 27-10 Legal
Services: Military Justice, at 29, Ch. 4, 4 4-1 (May
11, 2016), available at https://armypubs.army.mil/
ProductMaps/PubForm/AR_Details.aspx?
i nccniccdsentcesinitnncisabainseissnininennin 14
vill
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=SsTsv HF cjaE%3D&
tabid=1804Gportalid=15.....................cccceccseceeeeeeees 2
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/J AGINST%
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
I edition 24, 34
DEP’T OF THE NAVY, Secretary of the Navy
Instruction 1920.6C (2011) .............c..ccccceccseeeeeeee 34
Edwin Meese III, Big Brother on the Beat: The
Expanding Federalization of Crime, 1 TEX. REV.
RRR EE Se LCcnee owe 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
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
EIS en 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 I
en 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-unanimous-
jury-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/usam-
9-2000-authority-us-attorney-criminal-division-
mattersprior-approvals#9-2.031 .......... 3, 16-18, 21
UNITED STATES COAST GUARD, COMDTINST
M5810.1F, 60-61, 4 4.D.1 (Mar. 2018), available
at https://media.defense.gov/20 18/Apr/06/200 1900
284/-1/-1/0/CIM_5810_1F.PDF...................... 15, 20
W. WINTHROP, MILITARY LAW AND PRECEDENTS 964
ee 29-31
WRAL.coM, Man Accused of Murdering Lover's
Husband Faces Court Martial (May 12, 2003),
https://www.wral.com/news/local/story/
INTEREST OF AMICI CURIAE'
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.”
Some, lik» Navy Petty Officer Austin Greening®
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.‘
' 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 Cope 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/F’Y 1 7AnnualReport. pdf.
® United States v. Greening, No. 201700040, 2018 WL 154779 (N-
M. Ct. Crim. App. Mar. 30, 2018), rev. granted, Md._
(CAAF. 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]’). /d. at *1, *4.
The Court of Appeals for the Armed Forces (CAAF") granted
review on the Double Jeopardy issue raised here by Mr. Gamble.
‘ 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).
Amici ask this Court to overrule the separate-
sovereigns 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,® active duty retirees,® and others subject to
the Uniform Code of Military Justice “UCMJ”),’ 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.*
And the military does this at the discretion of non-
attorney 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 NDAAJ.
® As of Sept. 30, 2017, there were 1,587,780 non-reservist retirees
receiving retired pay. Derr’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=SsTsvH Fojak%3D&tabid= 1804&portalid=15.
710 U.S.C. §§ 802, 803 (2012) (listing those subject to UCM).
® See id. §§ 825(c)(1), 825 (d)(1-2), 852(a)(2) (2012).
the United States Department of Justice (DOJ).
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. '°
This occurs when the military departments court-
martial 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.'' 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. '?
Finally, a “factual premise”' 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, Der’t or Justice, United States Attorneys’ Manual § 9-
2.031 (2009), available at https://www justice. gov/usam/usam-9-
approvals#9-2.031 [hereinafter USAM)).
© Brief for Petitioner at 27, Gamble v. United States, No. 17-646
(Sept. 4, 2018) (quoting Green v. United States, 355 U.S. 184, 187-
88 (1957)) [hereinafter Brief for Petitioner].
'! 10 U.S.C. § 802(@) (2012) (noting that “[mjembers of... the
armed forces, including those awaiting discharge after expirat-
ion of their terms of enlistment” are subject to court-martial).
" 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).
'S Brief for Petitioner at 42.
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 UCMd 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 separate-
sovereigns exception has authorized.
ARGUMENT
I. THE SEPARATE-SOVEREIGNS EXCEPTION
SHOULD BE OVERRULED BECAUSE IT
LOWERS THE GOVERNMENTS BURDEN
BY ALLOWING RETRIAL AT COURT-
MARTIAL 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.” '*
“As a result, the jurisdiction” of courts-martial
“overlaps substantially with that of
4 Ortiz v. United States, 138 S. Ct. 2165, 2174 (2018) (citations
omitted).
state ...courts.”'® This means that a person subject
to the UCMd 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.'®
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.'?
Of the different military departments, only the
Department of the Navy'* and the Coast Guard have
© Ortiz, 138 S. Ct. at 2170 (citations omitted).
"6 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) C[TU}ntil Congr-
ess legisiates 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).
'T 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”).
See Der’T OF THE Navy, JAG INSTRUCTION 5800.7F
(hereinafter “JAGMAN”) §§ 0124(cX(1) (2012), available ai
www jag. navy. mil/library/instructions/J AGMAN2012. pdf
(requiring notification of a Navy successive court-martial by the
convening authority to OJAG); Letter from Captain Robert P.
ies oh. Judge Advocate General's (JAG") Corps, U.S.
Navy, Office of the Judge Advocate General (OJAG”), U.S. Navy,
centrally tracked their convening authorities’ use of
successive courts-martial.'9 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 members*—has conducted
roughly two successive courts-martial per year.?!
to Lieutenant Daniel Rosinski, JAG Corps, U.S. Navy (Aug. 8,
2018) (on file with counsel of record) [hereinafter Navy Letter].
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 court-
martial requests between 2007 and February 2016, and that it
conducted three successive courts- martial in this time).
* 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.
2! 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 Der’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, 246-
47 (CAAF. 1996) (quoting Derr 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(©)(1) (2007), available at
https:/Awww.newriver. marines. mil/Portals/17/Documents/J AGI
NST%205800.7E_pdf and JAGMAN 5800.7F, supra note 18, §§
0124()(1) (only requiring notifications of successive courts-
martial 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.
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." 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 success-
ive 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,”* this Court has not required them to provide
the right to a jury trial that the Sixth Amendment
guarantees to state court criminal defendants.™
2 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].
= 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.
™* 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
Court-martial defendants tried at a general court-
martial,“ which may impose _felony-level
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. The changes
Congress passed in the Military Justice Act (MJA) of
201679 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
semous criminal cases).
2% A general court-martial may “adjudge any punishment not
forbidden by” the UCMd, “including the penalty of death when
specifically authorized.” 10 U.S.C. § 818 (2012).
* 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
77 10 U.S.C. § 816 (2012). A defendant also has the right, in a
non-capital case, to elect trial by judge alone. Id.
® 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.
” FY 2017 NDAA, §§ 5001-5542, 130 Stat. at 2894-2968. These
MJA amendments “take effect on January |, 2019." Exec. Order
No. 13,825, 83 Fed. Reg. 9889, 9889 (Mar. 1, 2018).
(on a general court-martial panel that will be required
to have eight members) to vote for conviction.
By contrast “only two states,” Oregon and
Louisiana, permit any felony “convictions on less-
than-unanimous jury verdicts.”*' 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.*”
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
*” 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).
*! 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.aclu-
or.org/en/cases/non-unanimous-jury -convictions-violate-equal-
protection-clause (Only two states allow non-unanimous juries
to deliver felony convictions: Oregon and Louisiana.”)).
® 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. Strat. § 136.450(1) (2015) (requiring a 10-2
vote for conviction “in a criminal action,” except for “murder or
aggravated murder’).
randomly chosen.”** 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.“
The convening authority may detail, subject to
very few restrictions, those who are “in his for her]
opinion ... best qualified for the duty by reason of
age, education, training, experience, length of service,
and judicial temperament.”* The convening
authority does not have to detail a representative
group of members based on criteria of race, gender, or
religion, nor does the group of members have to be
representative of a variety of military ranks or
% United States v. Dowty, 6) M.J. 163, 169 (C.A_A.F. 2004).
“ 10 U.S.C. § 825 (2012) escribing detailing process); R.C.M.
912 (rules for voir dire screening for bias).
* 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, “[wjhen 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 (ie. gender), United States v.
Riesbeck, 77 M.J. 154, 158-59 (C.A_A.F. 2017); solicit volunteers,
Dowty, 60M.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).
% 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.*7
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.”** 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.”
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.”*° 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.”*!
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).
% Taylor v. Louisiana, 419 U.S. 522, 528-30 (1975).
® Id. at 529.
Reply Brief, supra note 22, at 8.
“| 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_AA.F. 2014).
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.4*2 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... .*%
The second case is that of Navy Chief Rodney
Williams. After finding Chief Williams guilty of
voluntary manslaughter, a Virginia jury sentenced“
“2 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.”).
* Lemasters, 2013 WL 6913001, at *2.
“4 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 jur; to ascertain punishment... .”). “The trial judge
12
him to twelve months in prison and a fine.“© But that
was not the end of Chief Williams’ ordeal: a Navy
prosecutor also attended the state trial,“ 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.‘*’
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. Batis v.
Commonwealth, 515 S.E.2d 307, 315 (Va. Ct. App. 1999).
* 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-5 1c1-8bdb- 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.”).
“ 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).
“1 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,*® Navy and Marine Corps, *®
* Der’T OF THE ARMY, Army Regulation ( AR") 27-10 Legal
Services: Military Justice, at 29, Ch. 4, 9 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).
“ JAGMAN, supra note 18, §§ 0124(a), (©)(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
14
and Coast Guard. Only the Air Force requires a
senior civilian—the Secretary of the Air Force—-to
approve all successive courts-martial.®!
Across the DOD, a GCMCA already has to
approve referral of any case to a general court-
martial—the only court-martial authorized to impose
felony-level punishments®? and to try all penetrative
sexual assault offenses.**> The Army, the Navy and
Marine Corps, and in most circumstances the Coast
Guard,™ 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. /d.
% UNITED STATES COAST GUARD, COMDTINST M5810. 1F, 60-61,
4 4.D.1 (Mar. 2018), available at https://media.defense.gov/
2018/Apr/06/200 1900284/- 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 4 5.A.
5! DEp’T OF THE AIR FORCE, Air Force Instruction ( AFT") 51-201,
at 35 2. 18.3 (Dec. 8, 2017), available at http://static.e-publishi
ng.af. mil/production/1/af_ja/publication/afid 1 -20 1/afid1-201.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, rega-
rdless 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 courts-
martial 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).
‘4 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.” 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.
This Court noted that “the overriding purpose
of the Petite Policy is to protect the individual from
any unfairness associated with needless multiple
prosecutions.”5’? 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 high-
level approval before a successive prosecution.
The Petite Policy constrains almost all federal
“charging decisions” after a state prosecution.™ 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.
5 USAM, supra note 9, § 9-2.031.
% 434 U.S. 22, 24 n.5, 24-25 (1977).
5? 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.5°9 Jeopardy attaches in civil-
ian courts when the “jury is empaneled and sworn,” or
after “the first witness is sworn” in a bench trial.
Substantively, the Petite Policy first requires a
showing that the criminal “matter ...involves a
substantial federal interest.”' 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.”® This must overcome a “presumption” that
the “prior prosecution, regardless of result, has
vindicated the relevant federal interest.”
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.
5 USAM § 9-2.031(B)-(C).
® Crist v. Bretz, 437 U.S. 28, 37 n.15, 38 (1978).
6! USAM, supra note 9, § 9-2.031(A).
62 Id. § 9-2.031(D).
83 Id. § 9-2.031(A).
Id. § 9-2.031(D).
® Id. § 9-2.031(D) (iting 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.”)).
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.”™
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.”
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.“ Also, the Army only
applies this policy to state trials where jeopardy
attached “within the meaning of UCMJ, Art. 44."
® AFI 51-201, supra note 51, at 35, 4 2.18.3.
®’ Even after recent Congressional amendments, the advice from
judge advocate prosecutors to the convening authorities who
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)).
® See AR 27-10, supra note 48, at Ch. 4 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”).
® Jd. 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,”
making the Army rule less protective of a military
accused than the civilian protection in Crist v. Bretz.”'
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.”’? 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.””*
One author has observed that “[tjhis last
category” in the Navy successive courts-martial
instruction seems to swallow the rule” because
“virtually every crime reflects adversely upon the
military.”’* 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
United States v. Easton, 71 M.J. 168, 170 (C_A.A.F. 2012).
" 437 U.S. at 37 0.15.
™ JAGMAN, supra note 18, §§ 0124(a).
™ Id. § (b) (Referral for trial . . . within the terms of this policy
shall be limited to cases that meet one or more .. . criteria{.}").
™ Major Charles L. Prichard, Jr., The Pit and the Pendulum: Why
Military 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,””® it “does
not detail what the justification should include or
what types of cases or circumstances might justify a
successive prosecution.””6
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””’ 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.” Staff Sergeant
Tillery went from no criminal conviction, to serving a
life sentence after his successive court-martial.”
In the case of Chief Williams, the Navy appears
™® COMDTINST M5810. 1F, supra note 50, at 60-61 4 4.D.1.
™ 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/ 10521 4/.
™ Prichard, supra note 74, at 18 n. 202 (citation omitted).
™ Tillery v. Shartle, No. CV 16-0204-TUC-CKJ (LAB), 2016 WL
7229139, at *2 (D. Ariz. Dec. 14, 2016).
to have based its decision to successively court-
martial him, at least in part on his choice of wardrobe
during his state trial: his Navy uniform. This
sounds more like petty revenge, than of a substantial,
unvindicated federal interest that would have been
required under the Petite Policy.
The DOJ, in Rinaldi and in many other cases,*'
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,™ 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.”*
™ 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’).
%! E.g.. Thompson v. United States, 444 U.S. 248, 249 (1980) (per
® United States v. Snell, 592 F.2d 1083, 1088 (9th Cir. 1979)
(noting a “defendant cannot invoke the Petite Policy as a bar’).
= 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
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 court-
martial conviction where a convening authority fails
to comply with a departmental regulation. There are
numerous examples of convening authorities simply
disregarding departmental regulations,“ with no
remedial action by the government. 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 Ce Court
should overrule the separate-sovereigns exception
which enables this arbitrary government action.
Il. 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,
™ Eg. Kohut, 44 MJ. 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 (AF. 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).
* 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.
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,*®’
and (2) a monthly pension. In Hennis, the Army
convened a successive court-martial twenty-one years
after acquittal by a state court, and two years after his
retirement.“ As one author asked: “[wjhat 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?’
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
* 10 U.S.C. § 802 (2012).
*7 10 U.S.C. § 688 (2012) (allowing retiree recall in emergency).
% See generally Barker v. Kansas, 503 U.S. 594, 605 (1992)
(holding that “[flor purposes of [taxation], military retirement
benefits” are “considered deferred pay for past services’).
* 75 MJ. at 802.
® Prichard, supra note 74, at 16.
23
final accounting of pay; and (3) complete the ‘clearing’
process required under service regulations.°'
Each department has regulations authorizing
commands to stop the discharge of a member,®? if they
take an “action with a view to trial”—apprehension,
imprisonment, “preferral of charges,”®* or even just a
“[c]riminal investigation[.]”" 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.”
While on a legal hold, a member does not
receive pay if placed in pretrial detention pending
court-martial (unless later acquitted by court-
martial). 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.%
*! See United States v. Christensen, 78 M.J. 1, 5 (C_.A.A.F. 2018)
(citing 10 U.S.C. § 1168 (2012)).
*@ E.g.. DEP’T OF THE NAVY, MILITARY PERSONNEL MANUAL
(MILPERSMAN) § 1160-050, at 6, 8-9 (2007) (authorizing both
“[ijnvoluntary extension{sf of an enlistment “due to criminal
proceedings,” and “extension|s} for completion of U.S. civilian
iminal :
% RCM. 202(¢)(2), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016).
™ 67 M.J. 765, 766 (AF. Ct. Crim. App. 2009).
* 10 U.S.C. § 802(a) (2012).
% United States v. Fischer, 61 M.J. 415, 421-22 (C_A.A.F. 2005).
* Webb, 67 M.J. at 766.
24
“ven 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.
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.
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.” After four mistrials between
2007-2011, the State gave up.’ Sergeant Burke’s
“enlistment [had] ended while he was in the custody
of civilian authorities.”'°' However, because of the
Army’s ability to place Sergeant Burke on legal hold:
Burke was never processed out of the
% Id. at 768-69, 772.
® United States v. Burke, No. 20120448, 2015 WL 5472729, at *1
(A. Ct. Crim. App. Feb. 26, 2015), affd, 75 M.Jd. 26 (CAAF.
2015).
100 Jd.
10! Charles Gazaway, Military panel finds murder suspect Brent
Burke guilty on all charges, WAVE 3 NEWS (May 8, 2012),
http://www.wave3.com/story/181464922/military-panel-reaches-
finding -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... [jjail while awaiting
general court-martial.”'
The Army charged and convicted Sergeant
Burke for double murder, among other charges, long
after his enlistment had expired.'™
In United States v. Christensen, Private First
Class Christensen’s command had mailed his
discharge paperwork and processed him out of the
Army.'* 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.”'!®
After civilian authorities discussed allowing
Private First Class Christensen to plead to a lesser
charge, the Army court-martialed him.'° Though the
CAAF vacated the conviction for lack of jurisdiction, '”
the senior prosecutor's testimony exemplifies how the
military uses the separate-sovereigns exception and
102 Jd.
103 Burke, 2015 WL 5472729, at *1.
14 78 M.J. at 2-3.
106 Jd. at 3, n.2.
106 Jd. at 3.
107 Td. at 6.
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. After his enlistment expired and while
Virginia’s proceedings continued, military authorities
involuntarily “extended [him] on active-duty[.]”'©
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.”''"° 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.”!!!
108 Greening, 2018 WL 154779, at *1.
108 Jd. 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. /d.
110 Jd. at *5 (citing Kohut, 44 M.J. at 250).
') Jd. at *1.
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. !!?
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.”!'3 Being involuntarily
retained i 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.
Ill. THE FACTUAL PREMISE FOR TRIAL BY
COURT-MARTIAL UNDER THE SEPARATE-
SOVEREIGNS 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.
13 Bartkus v. Illinois, 349 U.S. 121, 127 (1959).
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.”''4
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.”!'5
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.”''® These Articles,
enacted by the Continental Congress and used
through passage of the Constitution and Bill of
Rights''’ 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.''®
'4 354 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).
''6 Reid, 354 U.S. at 28.
16 Solorio, 483 U.S. at 444.
''T 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)).
This Court noted in Reid that “ijt 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.”!'9
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.”!”°
Colonel Winthrop, referred to by this Court as the
“Blackstone of Military Law,”!?' 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:!22
[A] soldier convicted by a general court-
martial, under Art. 21 or 22,o0f 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
19 354 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).
'21 Ortiz, 138 S. Ct. at 2175.
'2 W. WINTHROP, supra note 118, at 259-65.
30
criminal courts, (as for example, the
crimes cognizable by courts-martial
under Art. 58,'23 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. '24
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,'* only
punishable by court-martial in wartime under the
Fifty-Eighth Article of War. Unfortunately, by the
time this Court fully embraced the separate-
sovereigns exception in the 1950s,'26 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 Td. at 264-65 (emphasis added).
126 Td. at 671.
1% See Reply Brief, supra note 22, at 12 (‘The [separate-
sovereigns] 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.” '?’
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.”'?8 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.”'” 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.”).
‘2? Brief for Petitioner at 42 (citing Planned Parenthood of Se.
Penn. v. Casey, 505 U.S. 833, 855 (1992)).
1% Ortiz, 1388. Ct. at 2174.
'® Brief for Petitioner at 43 (citing Edwin Meese III, Big
Brother on the Beat: The Expanding Federalization of Crime, |
Tex. Rev. L. & Pow. 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 non-
capital violation of state or federal law.'*
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.”'!
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.”'*2 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.”'* 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]
'® 10 U.S.C. § 934 (2012).
*! Prichard, supra note 74, at 16.
' 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 federal-
state cooperation in enforcing criminal! laws”)).
'S 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? '*4
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,'* do not need to successively court-martial
these military members under the separate-
sovereigns exception. This exception only serves to
cause a “continuing state of anxiety and insecurity”'”
amongst those who, whatever their other failings may
be, bravely volunteered to serve our country.
CONCLUSION
This Court should find that the separate-
sovereigns exception, which permits the disfavored
treatment of servicemembers at successive courts-
'™ Prichard, supra note 74, at 16-187.
8 See, eg., DEPT OF THE NAVY, MILPERSMAN, §§ 1900-1999
OF THE NAVY, Secretary of the Navy Instruction 1920.6C (Sept.
20, 2011) (authorizing administrative separations of naval
officers).
‘8 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.
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
JANE E. BOOMER
Col, USAF, Counsel
Chief, Appellate Defense
Diviai
SHANE A. MCCAMMON
Maj, USAF, Counsel
Deputy Chief, Appellate
Def Diviai
1500 W. Perimeter Road
Suite 1100
JB Andrews, MD 20762
(240) 612-4770
jane.e.boomer.mil@mail mil
shane.a.mccammon?2.mil
@mail mil
Respectfully submitted,
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/
2703 Martin Luther King Jr.
Ave, SE,
Washington, D.C. 20593
202-685-7389
202-372-3750
salomee.g.briggs@uscg. mi!
john.c. reardon@uscg. 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@
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