Appendix — Ragard v. United States (No. 05-1549)

APPENDIX A

439 F.3d 1378

United States Court of Appeals,

Federal Circuit.

Lawrence R. RAGARD, Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

No. 05-5127.

March 6, 2006.

Before MICHEL, Chief Circuit Judge, FRIEDMAN, Senior

Circuit Judge, and LINN, Circuit Judge.

OPINION OF THE COURT

FRIEDMAN, Senior Circuit Judge.

Under a pre-trial diversion agreement, the District of

Columbia Corporation Counsel agreed that, if the criminal

defendant performed specified community service, pending

charges against him, a captain in the United States Army

(“Army”), would be dismissed. Both sides performed the

agreement, and the criminal charges were dismissed. The

ultimate question in this appeal is whether that agreement

barred the Army from subsequently court martialling the

defendant for a different offense arising from the same

conduct as the District of Columbia charge. We hold that

la

the agreement did not bar the court martial. We therefore

affirm the Court of Federal Claim's dismissal of the present

case challenging the court martial, but on a different ground

than that court gave.

The basic facts are undisputed. Following the arrest

of the appellant Lawrence R. Ragard, then a Captain in the

Army, by the United States Park Police for engaging in

lewd acts in violation of D.C.Code § 22-1312(a) (formerly

D.C.Code § 22-1112(a)), an Assistant District of Columbia

Corporation Counsel charged him in a District of Columbia

court with indecent exposure, also in violation of D.C.Code

§ 22-1312(a). (On May 26, 2004, the Office of the

Corporation Counsel for the District of Columbia was

renamed the Office of the Attorney General for the District

of Columbia. See Mayor's Order 2004-92, 51 D.C.Reg.

6052 (2004).) Ragard then entered into a pre-trial diversion

agreement with the District */380 of Columbia, under

which he agreed to perform 40 hours of community service

and the Corporation Counsel agreed to dismiss the pending

indecent exposure charge. (This is a procedure under which

certain defendants are “diverted” from the criminal justice

system into an alternative rehabilitation program.) Ragard

performed his community service and the Assistant

Corporation Counsel nolle prossed the criminal charge.

In the interim, the Army instituted court martial

proceedings against Ragard, based on the same conduct. It

charged him with sodomy, conduct unbecoming an officer,

and commission of an indecent act. Ragard moved to

dismiss the charges as constituting double jeopardy and

barred by the diversion agreement. The court martial denied

the motion, ruling that the military prosecution would not

constitute double jeopardy and that the District of Columbia

Corporation Counsel could not bind the Army.

2a

Ragard pled guilty to the sodomy charge, and was

sentenced to be dismissed from the Army, fined $5,000.00,

and reprimanded. He appealed his conviction and sentence

through the military appellate courts, which rejected his

contentions of double jeopardy and breach of contract.

United States v. Ragard, 56 M.J. 852, 854 (CCA 2002),

summarily aff'd,57_M.J. 468 (CAAF 2002), motion for

rehearing denied, 58 M.J. 130 (CAAF 2003).

He then filed the present case in the United States

Court of Federal Claims, challenging his court martial

conviction and sentence, and seeking reinstatement and

backpay. (The Court’of Federal Claims has jurisdiction to

collaterally review a court martial “if the action is otherwise

within [its] jurisdiction, as it is -- for back pay and

reinstatement.” Bowling y. United States, 713 F.2d 1558,

1560 (Fed.Cir.1983). See Matias v. United States 923 F.2d

821 (Fed.Cir.1990).) That court dismissed the suit for lack

of jurisdiction. It first held that Ragard had not been

subjected to double jeopardy. It then ruled that the question

of whether the diversion agreement barred the court martial

was a factual issue that the military courts had resolved

against Ragard, and that the court had no jurisdiction to re-

examine that factual determination.

Ragard did not raise the double jeopardy point before

us either in his brief or in his oral argument. We therefore

view that argument as abandoned before this court and shall

not discuss it further.

I

Without reaching the merits, the Court of Federal

Claims dismissed the suit for want of jurisdiction, on the

ground that the military courts' interpretation of the

diversion agreement as not barring the Army court martial

was a factual determination that it did not have jurisdiction

3a

to review. The interpretation of a contract, however, is a

question of law, not of fact, see Cienega Gardens v. United

States, 194 F.3d 1231, 1239 (Fed.Cir.1998), which the

Court of Federal Claims had jurisdiction to decide, see

Longval_yv. United States, 41 Fed.Cl. 291 (1998). The

answer to that legal question is clear, however: the

agreement did not bar the court martial. Accordingly, rather

than remanding the case to the Court of Federal Claims to

decide the question initially, we affirm the Court of Federal

Claim's dismissal of the complaint or: the alternative ground

that Ragard failed to state a claim upon which relief could

be granted.

The record on appeal does not contain any document

identified as the “diversion agreement” and we do not know

whether such a document exists. Other documents in the

record and the parties' presentations, however, leave no

doubt what that agreement states. It provides that if Ragard

performed 40 hours of community */38/ service, the

District of Columbia Corporation Counsel would dismiss

the pending criminal charges against him for violation of

the District of Columbia Code.

Nothing in the diversion agreement even suggests,

let alone provides, that performance of the agreement will

bar the Army from court martialling Ragard for conduct that

violates the Uniform Code of Military Justice. The

agreement purports to deal only with the pending District of

Columbia criminal proceeding, not with other criminal

proceedings that might be brought by some other entity.

Indeed, there is no basis here upon which the District ©

of Columbia Corporation Counsel would have authority to

prohibit the Army from court martialling Ragard. Ragard

cites cases stating that, in other contexts, the District of

Columbia is a federal entity. He points out that the Army

also is a federal entity, and then argues that the agreement

4a

by the first entity to dismiss the District of Columbia

criminal case should somehow be extended to bar the

military entity fram court martialling him for the same

conduct on which the District of Columbia criminal

prosecution was bised.

Although tle District of Columbia is a federal entity,

it is also an indejendent one. It has its own laws, its own

government, and its own elected and appointed officials.

The District of Columbia Corporation Counsel (now the

Attorney General of the District of Columbia), appointed by

the Mayor, is the District of Columbia's chief legal officer.

The Unitel States Attorney for the District of

Columbia generaly is in charge of “conduct[ing] in the

name of the United States” “criminal prosecutions” for

offenses under the District of Columbia Code. D.C.Code §

23-101(c). That statute contains exceptions, however, under

which prosecution for certain minor offenses “shall be

conducted in the name of the District of Columbia by the

Corporation Counsel for the District of Columbia or his

Assistants ---” One of the categories of offenses that the

Corporation Coussel is to prosecute in the name of the

District of Colurrbia is “lewd, indecent, or obscene acts.”

D.C.Code § 23-1€1(b). ,

When the Assistant Corporation Counsel filed

charges of indecent. exposure against Ragard and then

agreed in the diversion agreement to dismiss those charges

if Ragard perforned specified community service, he was

acting solely for the District of Columbia pursuant to the

foregoing statutory authority. The United States Attorney

for the District cf Columbia had no involvement in Mr.

Ragard's prosecution or the execution and performance of

the diversion agreement. Only the District of Columbia, not

the United State, was a party to and bound by that

agreement. The Corporation Counsel had no authority in the

5a

diversion agreement to bind the Army not to court martial

Ragard, and the agreement did not do so.

CONCLUSION

The judgment of the Court of Federal Claims

dismissing Ragard's suit is

AFFIRMED

APPENDIX B

In the United States Court of Federal Claims

No. 04-267C

Filed: March 31, 2005

NOT TO BE PUBLISHED

LAWRENCE R. RAGARD, * Jurisdiction;

. Motion to Dismiss;

Plaintiff, + RCFC 12(b)(1);

° RCFC 12(b)(6);

v. * Tucker Act, 28 U.S.C.

*

*

*

*

a

§ 1491(a)(1).

THE UNITED STATES,

Defendant.

*

MEMORANDUM OPINION

BRADEN, Judge.

FACTUAL BACKGROUND’

' The relevant facts recited herein were derived from: the February 27,

2004 Complaint (“Compl.”) and Exhibits thereto; May 11, 2004

Defendant’s Motion to Dismiss (“Gov’t Mot. To Dismiss”) and

Appendix; August 6, 2004 Plaintiff's Opposition (“Pl. Opp.”); and

September 22, 2004 Defendant’s Reply (“Def. Reply”).

Ib

On October 14, 1997, a United States Park Police

Officer arrested Plaintiff, a Captain in the United States

Army, in Rock Creek Park, located in the District of

Columbia (“D.C.”). See Compl. 4 5. Plaintiff was arrested

for engaging in lewd acts, in violation of D.C. Code § 22-

1312(a). Jd.“ Thereafter, an Assistant Corporation Counsel

in the Office of the D.C. Corporation Counsel,’ changed the

charge to indecent exposure in violation of D.C. Code § 22-

1312(a). See Gov’t Mot. to Dismiss Appendix at 4. On

October 30, 1997, Plaintiff was arraigned in the Superior

Court in the District of Columbia on the indecent exposure

charge. See Compl. { 6.

On November 3, 1997, Plaintiff entered into an

agreement with the D.C. Corporation Counsel to participate

in a Pretrial Diversion Program and perform forty hours of

community service in exchange for dismissal of the indecent

exposure charges (“the Agreement”). Jd. at 7. Thereafter,

Plaintiff completed community service under the supervision

of the D.C. Superior Court Social Services Division, Special

Services Branch in December 1997. Id. at JJ 8-9. On March

18, 1998, pursuant to the Agreement, the D.C. Corporation

? D.C. Code § 22-1312(a) provides: “It shall not be lawful for any person

or persons to make 2 any obscene or indecent exposure of his or her

person, or to make any lewd, obscene, or indecent sexual proposal, or to

commit any other lewd, obscene, or indecent act in the District of

Columbia, under penalty of not more than $300 fine, or imprisonment of

not more than 90 days, or both, for each and every such offense.”

3 The D.C. Corporation Counsel is responsible for prosecuting violations

of the D.C. Code, on behalf of the District of Columbia. See D.C. Code §

23-101(a) (“Prosecutions for violations of all police or municipal

ordinances or regulations and for violations of all penal statutes in the

nature of police or municipal regulations, where the maximum

punishment is a fine only, or imprisonment not exceeding one year, shall

be conducted in the name of the District of Columbia by the Corporation

Counsel for the District of Columbia or his assistants[.]’’).

2b

opined

Counsel dismissed the indecent exposure charge by nolle

prosequi’. Id. at J 12; see also United States v. Ragard, 56

M.J. 852, 854 (C.C.A. 4 2002).

oe

PROCEDURAL HISTORY

On December 19, 1997, the United States Army

(“Army”) initiated court-martial proceedings against

Plaintiff. See Compl. 4 13; see also Ragard, 56 M.J. at 854.

On March 2, 1998, the following charges were referred to

the Army’s Convening Authority’: sodomy (Article 125,

Uniform Code of Military Justice (““UCMJ”), 10 U.S.C. §

925); conduct unbecoming an officer (Article 133, UCMJ,

10 U.S.C. § 933); and commission of an indecent act (Article

134, UCMJ, 10 U.S.C. § 934). See Compl. § 13. The court-

martial charges were based on Plaintiff's October 14, 1997

arrest in Rock Creek Park. Jd.

Plaintiff moved to dismiss the court-martial charges

on two grounds. First, on August 25, 1998, Plaintiff filed a

Motion to Dismiss, claiming that he was placed in jeopardy

for being charged twice for unlawful conduct that occurred

once. See Ragard, 56 M.J. at 854; see also Compl. { 14.

Second, on September 18, 1998, Plaintiff filed a second

Motion to Dismiss, claiming that the Army was bound by the

terms of the Agreement once Plaintiff completed the

* Nolle prosequi is a “formal entry on the record by the prosecuting

officer by which he declares that he will not prosecute the case further.”

BLACK’S LAW DICTIONARY 1070 (7th ed. 1999) (quoting 22A

C.J.S. Criminal Law § 419 at t (1989)).

oA unique aspect of the military justice system is the post-trial review by

the Convening Authority. In a general court-martial ruling, which

includes a punitive discharge, the Convening Authority reviews the trial

record and may “suspend all or part of the sentence, disapprove a finding

or conviction or lower the sentence.” Military Courts-Martial: An

Overview at 5-6; see also RCM 1107

3b

required community service. On October 13, 1998, the

military trial court denied Plaintiff's motions and ruled that

the Fifth Amendment of the United States Constitution’s

proscription against double jeopardy did not apply, as a

matter of law. See Ragard, 56 M.J. at 854. In addition, the

military trial court held that the D.C. Corporation Counsel

Office could not represent the United States and therefore the

Agreement did not bind the Army. /d. Accordingly,

Plaintiff's Motion to Dismiss was denied and subsequently

Plaintiff pled guilty to sodomy. Jd. at 854; see also Compl.

14.° The military trial court, however, recommended that the

Convening Authority suspend dismissal from the Army

because Plaintiff “suffered from several debilitating diseases,

which were incurred while on active duty, relating to his

HIV status.” Compl. § 15.

Notwithstanding this recommendation, _ the

Convening Authority’ approved the adjudged sentence of a

dismissal from the Army, forfeiture of $1,000 pay per month

for five months, and a reprimand. See Ragard, 56 M.J. at

853; see also Compl. ¥ 16.

On August 23, 2000, Plaintiff appealed the military

trial court’s October .13, 1998 decision to the United States

Army Court of Criminal Appeals.* See Compl. § 17. In that

° The military trial court entered findings of not guilty regarding charges

of conduct unbecoming an officer and indecent acts with another. See

Ragard, 56 M.J. at 853 n.1.

TA Convening Authority generally consists of at least a Commissioned

Officer in command of the accused’s unit. See Rules for Courts-Martial

(“RCM”) 103(6); see also Estela I. Velez Pollack, Military Courts-

Martial: An Overview 3, Congressional Research Service, May 26, 2004,

available at http://www. fas.org/man/crs/RS2 1850.pdf.

8 if a commissioned officer is sentenced to dismissal under a general

court-martial that decision is subject to an automatic appeal to a service

4b

tribunal, Plaintiff again argued that he was placed in double

jeopardy by the Army because the District of Columbia

dismissed the charge of indecent exposure after Plaintiff

fulfilled the terms of the Agreement. SeeRagard, 56 M.J. at

853. Plaintiff also claimed. that the Army breached the

Agreement by conducting court-martial proceedings. Jd. In

addition, Plaintiff challenged the appropriateness of his

dismissal from the Army. /d. Although the United States

Army Court of Criminal Appeals held that the case raised

questions of first impression, the conviction below was

affirmed. Id. at 853-54.

es On October 28, 2002, Plaintiff appealed to the United

States Court of Appeals for the Armed Forces (““CAAF”).

See Compl. { 19; see also United States v. Ragard, 57 M.J.

468 (CAAF 2002). The CAAF summarily denied the

petition. See Ragard, 57 M.J. at 468. On January 7, 2003,

Plaintiff filed a motion to reconsider that subsequently was

denied. See United States v. Ragard, 58 M.J. 130 (CAAF

2003).

On February 27, 2004, Plaintiff filed a Complaint in

the United States Court of Federal Claims to: set aside the

Army court-martial conviction; restore Plaintiff to active

duty, with all pay and allowances retroactive to the date of

discharge; and request reasonable attorneys fees and other

relief. See Compl. at Prayer.

DISCUSSION

United States Court of Criminal Appeals. SeeRCM 1110; see also 10

U.S.C. § 866. If a military trial court affirms the conviction, plaintiff may

request discretionary review first .. . by the United States Court of

Appeals for the Armed Services and then by United States Supreme

Court. See 10 U.S.C. § 867; 28 U.S.C. § 1259; see also MilitaryCourts-

Martial: An Overview at 6.

Sb

A. Jurisdiction.

Judgments by courts-martial generally are not subject

to direct review by federal civil courts. See Matias v. United

States, 923 F.2d 821, 823 (Fed. Cir. 1990) (“{J]udgments by

courts-martial [are] not subject to direct review by federal

civil courts[.]”). Jd. The United States Court of Federal

Claims, however, may exercise jurisdiction to hear collateral

attacks on court-martial convictions but only where a

constitutional challenge is serious enough to warrant an

exception to the rule of finality, i.e., within the court-martial

proceeding there was “such a deprivation of fundamental

fairness as to impair due process.” Bowling v. United States,

713 F.2d 1558, 1560, 1561 (Fed. Cir. 1983). Questions of

fact, however, cannot be collaterally attacked. See Matias,

923 F.2d at 823 (quoting Flute v. United States, 535 F.2d

624, 626 (Ct. Cl. 1976)). Therefore, the United States Court

of Federal Claims may only review whether the military

gave “fair consideration” to each of Plaintiff's claims. See

Matias, 923 F.2d at 826.

B. Standard of Review.

The United States Supreme Court narrowly defined

the scope of review regarding a courtmartial in Burns v.

Wilson, 346 U.S. 137 (1953):

{I]t is not the duty of the civil courts simply to...

reexamine and reweigh each item of evidence of the

occurrence of events which tend to prove or disprove

one of the allegations . . . It is the limited function of

the civil courts to determine whether the military

have given fair consideration to each of these claims.

Id. at 144.

6b

C. The United States Court Of Federal Claims Does

Not Have Jurisdiction To Adjudicate Plaintiff's

Claims.

1. Plaintiff Was Not Subjected To Double

Jeopardy.

The Double Jeopardy Clause of the Fifth Amendment

of the United States Constitution provides that no person

shall “be subject for the same offence to be twice put in

jeopardy of life or limb.” U.S. CONST. amend. V. The

purpose of prohibiting double jeopardy is to protect

individuals from being subjected to trial and possible

conviction for the same criminal offense on more than one

occasion. See, e.g., Brown v. Ohio, 432 U.S. 161, 165 (1977)

(quoting North Carolina v. Pearce, 395 U.S. 711, 717

(1969) (“The Double Jeopardy Clause protects against a

second prosecution for the same offense after acquittal. It

protects against a second prosecution for the same offense

after conviction. And it protects against multiple

punishments for the same offense.”); Serfass v. United

States, 420 U.S. 377, 387-88 (1975) (“[T]he State with all its

resources and power should not be allowed to make repeated

attempts to convict an individual for an alleged offense.”).

The United States Supreme Court has held that in a nonjury

trial, “jeopardy attaches when the court begins to hear

evidence.” Jd. at 388 (quoting McCarthy v. Zerbst, 85 F.2d

640, 642 (10th Cir. 1936)). The Court, therefore, consistently

has held that “[Jjeopardy does not attach, and_ the

constitutional prohibition can have no application, until a

defendant is ‘put to trial before the trier of the facts, whether

the trier be a jury or a judge.’” /d. (quoting United States v.

_ Jorn, 400 U.S. 470, 479 (1971).

The D.C. Corporation Counsel never prosecuted

Plaintiff for the indecent exposure charge. Therefore,

Plaintiff was never “put to trial before a trier of the facts.” Jd.

The Agreement was not an acquittal because it was not an

adjudication. Moreover, an entry of nolle prosequi does not

bar prosecution for the same offense by the military because

such terminations are not acquittals. See Dortch v. United

States, 203 F.2d 709, 710 (6th Cir. 1953).

Assuming arguendo, that community service is

considered punishment, double jeopardy does not apply

because Plaintiff was punished for two separate offenses. A

person may be punished twice for the same conduct only if

two offenses arise out of the conduct and are sufficiently

distinguishable. In Blockburger v. United States, 284 U.S.

299 (1932), the Court stated that:

The applicable rule is that where the same act or

transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to

determine whether there are two offenses or only one

is whether each provision requires proof of an

additional fact which the other does not.

Id. at 304.

The United States Supreme Court also has held that

the Fifth Amendment forbids “successive prosecution and

cumulative punishment for a greater and lesser included

offense.” Brown v. Ohio, 432 U.S. 161, 169 (1977)..

Generally, a lesser offense requires no proof beyond which is

required for the greater offense. /d. at 168. The elements of

the offense of sodomy and indecent exposure are not the

same. The offense of indecent exposure requires a

“disturbance of the public peace,” thus the act must be done

8b

in public. See D.C. Code § 22-1312(a).? Sodomy requires

that the offender engage in “unnatural carnal copulation with

another person.” Art. 125, UCMJ, 10 U.S.C. § 925."°

Neither offense is a lesser included offense of the other.

Since sodomy and indecent exposure are two separate

offenses, punishment for each does not violate the double

jeopardy clause. SeeBlockburger, 284 U.S. at 304.

2. The Interpretation Of The Agreement Is A

Question Of Fact For The MilitaryCourt.

Plaintiff argues that the Agreement was a contract

that the United States violated by subjecting Plaintiff to a

court-martial conviction of sodomy. See Compl Count II; see

also P|. Opp. at 8-9.

The United States Army Court of Criminal Appeals

analyzed the evidence surrounding the pretrial agreement

and held:

At no time during the negotiations between [Plaintiff]

and the D.C. Corporation Counsel Office did any

representative of that office indicate to the appellant

any intention to bind any other agency but the D.C.

Corporation Counsel Office . . . [Moreover, Plaintiff]

states that it was his understanding that the agreement

applied to all potential charges stemming from the

* “It shall ‘not be lawful for any person or persons to make any obscene or

indecent exposure of his or her person, or to make any lewd, ob. ne, or

indecent sexual proposal, or to commit any other lewd, obscene, or

indecent act in the District of Columbia, under penalty of not more than

$300 fine, or imprisonment of not more than 90 days, or both, for each

and every such offense.” D.C. Code § 22-1312(a).

'0 “Any person . . . who engages in unnatural carnal copulation with

another person of the same or opposite sex or with an animal is guilty of

sodomy.” 10 U.S.C. § 925.

9b

incident. We find no evidence to support such an

understanding. On the contrary, a reasonable reading

and interpretation of the agreement under the facts of

this case do not leave a reasonable person to conclude

that successful completion of the District of

Columbia’s pretrial diversion program would forever

bar prosecution under the UCMJ as a result of the

incident.

Ragard, 56 M.J. at 856.

The United States Court of Federal Claims does not

have jurisdiction to re-examine questions of fact resolved by

military courts. See Bowling, 713 F.2d at 1561 (“{QJuestions

of fact resolved by military courts cannot be collaterally

attacked.”). Accordingly, the decision of the United States

Army Court of Criminal Appeals that the Agreement applied

only to the District of Columbia is binding as a matter of

law.

CONCLUSION

Plaintiff has failed to demonstrate the existence of a

constitutional violation that impaired the court-martial and

military appellate proceedings. The record evidences that the

military trial court gave fair consideration to each of

Plaintiff's arguments. Therefore, Plaintiff's claims in this

court are dismissed for lack of subject matter jurisdiction.

The Clerk is hereby directed to dismiss the February 27,

2004 Complaint.

IT IS SO ORDERED.

SUSAN G. BRADEN

Judge

10b

APPENDIX C

56 M.J. 852

U.S. Army Court of Criminal Appeals.

UNITED STATES, Appellee,

v.

Captain Lawrence R. RAGARD, United States Army,

Appellant.

ARMY 9801508.

29 March 2002.

Before CAIRNS, Senior Judge, CHAPMAN, and BROWN,

Appellate Military Judges.

OPINION OF THE COURT

CHAPNMAN, Judge:

A military judge, sitting as a general court-martial,

convicted the appellant, in accordance with his pleas, of

sodomy, in violation of Article 125, Uniform Code of

Military Justice, 10 U.S.C. § 925 [hereinafter UCMJ].' The

convening authority approved the adjudged sentence of a

dismissal, forfeiture of $1000.00 pay per month for five

The appellant also was charged with conduct unbecoming an officer

and gentleman and indecent acts with another, in violation of Articles

133 and 134, UCMJ. The military judge entered findings of not guilty to

both charges and their specifications.

Ic

months, and a reprimand.” This case is before this court for

review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

The appellant asserts in his first assignment of error

that the double jeopardy clause of the Fifth Amendment’

barred his prosecution by court-martial. He maintains that he

was twice placed in jeopardy for the same conduct because

the District of Columbia (D.C.), which initially charged him

with indecent exposure in violation of the District of

Columbia Code (D.C.Code), dismissed that charge after the

appellant fulfilled the terms of a pretrial diversion

agreement. In a second assignment of error, the appellant

questions the appropriateness of his sentence to a dismissal.

After carefully examining the record of trial, reviewing the

appellant's and the government's briefs, and hearing oral

argument, we find no merit in either assignment of error.

BACKGROUND

The facts leading to the appellant's court-martial are

not in dispute. On 14 October 1997, a park police officer,

while patrolling a section of Rock Creek Park, a national

public park located in Washington, D.C., observed a group

of four or five men rubbing their groin areas while watching

two other men engaged in oral sex a short disiance away.

One of the two men engaged in oral sex was the appellant.

The appellant admitted at his court-martial during the

providence inquiry’ that he placed the other individual's

penis into his mouth, thereby committing the offense of

sodomy.

2 The military judge also recommended that the convening authority

suspend the dismissal.

> U.S. Const. amend. V.

*United States v. Care, 18 U.S.C.M.A, 535, 40 C.M.R. 247, 1969 WL

6059 (1969).

2c

After tht appellant's arrest, the District of Columbia

charged him wth commission of a lewd act in violation of

D.C.Code Am, § 22-1112(a) (1981). An Assistant

Corporation Counsel, Office of the D.C. Corporation

Counsel (D.C. Corporation Counsel Office), later changed

the charge to itdecent exposure, also in violation of § 22-

1112(a) of the D.C.Code.*® On 30 October 1997, the

appellant*854 vas arraigned in the Superior Court of the

District of Colunbia on the indecent exposure charge, and a

trial date was se for 19 February 1998.

Prior to his trial date, on or about 3 November 1997,

the appellant was voluntarily placed in a pretrial diversion

program.’ Purstant to this program, the appellant agreed to

maintain contact with a community service worker and to

complete forty hours of community service. In return, the

D.C. Corporaticn Counsel Office would dismiss the charge

against the apjellant upon successful completion of the

* The Corporation Counsel, or his assistants, conduct prosecutions for

violations of this ssction of the D.C.Code in the name of the District of

Columbia. § 23-10 (a), D.C.Code.

* It is unclear as t why the initial charge of lewd acts was changed to

indecent exposure.|n his pleadings on a motion to dismiss made at trial,

the appellant relat that the charge was changed to accommodate his

placement in a prerjal diversion program. The trial counsel believed the

change was due toa prior ruling that the offense of lewd acts under the

D.C.Code was uncynstitutional. Whatever the reason for the change, it is

not crucial to our d:cision in this case.

: Although pretriq diversion programs may vary from jurisdiction to

jurisdiction, all are ajternatives to the traditional process of prosecution

of crimina] defendints. Each seeks to divert certain offenders from the

traditional crimini{ justice system, substituting supervision by a

probation officer o other official and community service, instead of trial

and punishment.

3c

appellant's community service. The appellant completed his

required community service on 5 December 1997. The D.C.

Corporation Counsel Office dismissed the indecent exposure

charge by nolle prosequi’ on 18 March 1998.

On 19 December 1997, the appellant's command

preferred court-martial charges stemming from _ the

appellant's conduct on 14 October 1997. On 2 March 1998,

the convening authority referred charges of sodomy (Article

125, UCM3J), conduct unbecoming an officer by performing

fellatio on another in a public area (Article 133, UCMJ, 10

U.S.C. § 933), and commission of an indecent act by

performing fellatio on another in a public area (Article 134,

UCMJ, 10 U.S.C. § 934) to a general court-martial.

Prior to his pleas, the appellant unsuccessfully moved to

dismiss all charges and their specifications, arguing that the

United States Army (Army) was precluded from prosecuting

him because: (1) he was twice placed in jeopardy for the

same conduct; and (2) that the Army was bound by the terms

of the pretrial diversion agreement once the appellant

satisfied his obligations under the agreement. The military

judge disagreed and ruled that because jeopardy never

attached in the District of Columbia case, the Fifth

Amendment's proscription against double jeopardy did not

apply. She further found that the D.C. Corporation Counsel

Office did not represent the United States and that the

appellant's agreement with the D.C. Corporation Counsel

Office did not bind the Army. After the military judge denied

his motion to dismiss, the appellant pled guilty to sodomy.

DISCUSSION

® Nolle prosequi is defined as “a formal entry on the record by the

prosecuting officer by which he declares that he will not prosecute the

case further.” Black's Law Dictionary 1070 (7th ed.1999) (quoting 22A

JS. Criminal 419, at 1 (1989)).

4c

I. DOUBLE JEOPARDY

_ This case presents a situation peculiar to the District

of Columbia and its unique relationship with other federal!

entities. The issues raised by the appellant and the facts of

this case present questions of first impression for this court.

There are no military cases that speak directly to the ultimate

issues at hand. Similarly, there are no other federal or

District of Columbia decisions that provide definitive.

answers. With this in mind, we begin our analysis with the

appellant's assertion that the Fifth Amendment's prohibition

against double jeopardy bars his trial by court-martial.’

In order to address whether double jeopardy exists

under the facts of this case, we must first decide whether

jeopardy attached when the D.C. Corporation Counsel Office

*855 dismissed the indecent exposure charge, as a result of ©

the appellant's successful completion of a pretrial diversion

program. The appellant argues that he was “prosecuted” by

the District of Columbia for his conduct on 14 October 1997

when he entered into and successfully completed a pretrial

diversion agreement. He maintains that jeopardy attached

when the D.C. Corporation Counsel Office entered a nolle

? Under the facts of this case, we decline to hold that the appellant

waived his claim of double jeopardy by pleading guilty. Prior to his plea,

the appellant moved to dismiss all charges and their specifications on

double jeopardy grounds. Thus, because the issue could be resolved on

the existing record, the appellant's guilty plea does not bar his claim. See

Menna v. New York, 423 US. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975);

United States v. Collins, 41 M.J. 428 (1995). We do not hold, however,

that a double jeopardy claim may never be waived. See Rule for Courts-

Martial 907(b)(2)(C); United States v. Broce, 488 U.S. 563, 109 S.Ct.

757, 102 L.Ed.2d 927 (1989).

Sc

prosequi decision in regard to his case. We find no case law

to support the appellant's assertions, and hold that the

appellant's double jeopardy claim fails because jeopardy had

not attached.

The double jeopardy clause of the Fifth Amendment

“protects against a second prosecution for the same offense

after acquittal. It protects against a second prosecution for

the same offense after conviction. And it protects against

multiple punishments for the same offense.” Brown v. Ohio, ‘

432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)

(quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89

S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted)). It

also is clear that the constitutional guarantee against double

jeopardy does not apply before jeopardy attaches. Serfass _v.

United States, 420 U.S. 377, 390-91, 95 S.Ct. 1055, 43

L.Ed.2d 265 (1975). The Supreme Court and military courts

have consistently held that jeopardy does not attach until an

accused is “put to trial. before the trier of the facts, whether

the trier be a jury or a judge.” Jd at 388, 95 S.Ct. 1055

(quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct.

547, 27 L.Ed.2d 543 (1971)). In the case of a jury or

members trial, jeopardy attaches when a jury or court-martial

panel is empanelled and sworn. Crist v. Bretz, 437 U.S. 28,

98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Downum_v. United

States, 372 U.S. 734, 83 $.Ct. 1033, 10 L.Ed.2d 100 (1963);

United States v. Hutchinson, 49 M.J. 6 (1998); United States

v. Cook, 12 M.J. 448 (C.M.A.1982). In a nonjury or judge

alone trial, jeopardy attaches when the court begins to hear

evidence. Serfass, 420 U.S. at 388, 95 S.Ct. 1055; Cook, 12

M.J. at.453; United States v. Chavez, 6 M.J. 615, 620

(A.C.M.R.1978).

In the appellant's case, the facts before this court

clearly demonstrate that the appellant was never “subjected

to the hazards of trial and possible conviction.” See Green v.

6c

United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d

199 (1957). Despite the appellant's statements to the

contrary, he was never “prosecuted” by the District of

Columbia's court system.’° Pretrial diversion programs do

not make a final determination of guilt or innocence. No

evidence was ever presented to a trier of fact. There was no

adjudicative process. A resulting nolle prosequi decision,

unlike an acquittal or conviction, does not bar a second

prosecution for the same offense. See Dortch v. United

States, 203 F.2d 709 (6th Cir.), cert. denied, 346 U.S. 814,

74 S$.Ct. 25, 98 L.Ed. 342 (1953); United States v. Foster,

226 A.2d 164 (D.C.1967); Newman vy. United States, 410

F.2d 259 (D.C.Cir. 1969); Hensley v. United States, 160 F.2d

257 (D.C.Cir.1947).

The double jeopardy clause also has been interpreted

to bar the imposition of multiple punishments for the same

offense. Albernaz v. United States, 450 U.S. 333, 101 S.Ct.

1137, 67 L.Ed.2d 275 (1981); North Carolina y. Pearce, 395

U.S. at 717-18, 89 S.Ct. 2072. The appellant's voluntary

community service, with no restrictions on freedom or

deprivations of liberty interests, does not amount to the

imposition of punishment triggering a double jeopardy

inquiry.

Assuming, arguendo, that the appellant was punished

by the District of Columbia, the double jeopardy bar does not

apply because the appellant was punished for two different

offenses. The double jeopardy clause is only implicated if

the legislature intended that the crimes be treated as the same

offense. To determine Congress’ intent, we apply the “same-

elements” test of Blockburger v. United States, 284 U.S, 299,

'° The same civilian defense counsel represented the appellant both at

trial and on appeal. In contrast to his assertions on appeal, counsel

conceded at trial that jeopardy had not attached. He admitted that “[t]his

isn't a double jeopardy case.”

7c

52 S.Ct. 180, 76 L.Ed. 306 (1932). Under Blockburger, the

test for whether the double jeopardy clause permits multiple

punishments or multiple prosecutions arising out of the same

conduct is “whether each [distinct *856 statutory] provision

requires proof of a fact which the other does not.” Jd. at 304

52_ S.Ct. 180. Utilizing the Blockburger analysis in the

present case, we conclude that the crimes are different

offenses. The sodomy charge requires a finding that the

appellant engaged in unnatural carnal copulation; indecent

exposure does not.'' Indecent exposure requires that the act

be done in public or viewed by a third party; sodomy does

not. One is not a lesser included offense of the other.

Therefore, even if there were multiple punishments in this

case, the appellant's crimes are separate offenses under the

Blockburger test and, thus, the punishments did not violate

the double jeopardy clause.

For the reasons stated above, we hold that the

appellant had not been put in prior jeopardy, nor subjected to

multiple punishment for the same offense, as a result of his

placement in and his completion of the District of

Columbia's pretrial diversion program. There was no

violation of the Fifth Amendment's double jeopardy clause.’

Il. BREACH OF CONTRACT

We assume, but need not decide, that the District of Columbia must

have charged the appellant with indecent exposure under the law of

principals.’

* Corrected

' Because jeopardy had not attached, we need not consider the question

of whether the District of Columbia and the Army are separate and

distinct sovereigns for double jeopardy purposes.

8c

it eights +4

The appellant also alleges that fulfillment of his

obligation under the terms of the pretrial diversion

agreement with the D.C. Corporation Counsel Office

precludes the Army from prosecuting him for any offenses

stemming from the events of 14 October 1997. He maintains

that the Army was a party to the agreement and, thus, bound

by its terms. On brief and in oral argument, the appellant

blurs. this allegation with double jeopardy and sovereignty

issues. Nevertheless, as the appellant frames the issue as a

breach of contract, we look at ordinary principles of contract

law to determine if the Army is bound by the terms of the

agreement.

A pretrial diversion agreement is a contract. See

United States v. Hicks, 693 F.2d 32 (Sth Cir.1982). As a

general rule, examination of the written instrument

determines the identity of the parties to a contract. Seel7A

C.J.S. Contracts § 363 (1999). The explicit terms of the

agreement in this case are not ambiguous and, clearly, do not

purport to bind the Army. As stated in the “Notice of

Eligibility” given to the appellant, the D.C. Corporation

Counsel Office agreed to dismiss the charge of indecent

exposure in the D.C. Superior Court if the appellant

successfully completed forty hours of community service. At

no time during the negotiations between the appellant and

the D.C. Corporation Counsel Office did any representative

of that office indicate to the appellant any intention to bind

any other agency but the D.C. Corporation Counsel Office.

“A person [or agency] who is not named in a contract and

who has not signed or executed it ordinarily is not bound by

its terms.” Id. at 411. See also Int'l Customs Assocs., Inc. v.

Ford Motor Co., 893 F.Supp. 1251 (S.D.N.Y.1995).

The appellant states that it was his understanding that the

agreement applied to all potential charges stemming from the

incident. We find no evidence to support such an

understanding. On the contrary, a reasonable reading and

9c

interpretation of the agreement under the facts of this case do

not leave a reasonable person to conclude that successful

completion of the District of Columbia's pretrial diversion

program would forever bar a prosecution under the UCMJ as

a result of the incident.

Thus, we find that the pretrial diversion agreement,

by its own explicit terms, only applies to the appellant and

the D.C. Corporation Counsel Office. As a matter of law, we

hold that the agreement is unambiguous, and should be

‘interpreted and enforced accordingly. In doing so, we hold

that the Army was not a party to the pretrial diversion

agreement and, thus, not bound by its terms.

Ill. SENTENCE APPROPRIATENESS

The appellant argues that his sentence to a dismissal

is inappropriately severe. He requests that this court reassess

the sentence *857 and provide meaningful sentence relief by

disapproving his dismissal. We disagree that the sentence is

inappropriate and decline to grant relief.

In determining sentence appropriateness, we must

give “ ‘individualized consideration’ of the particular

accused ‘on the basis of the nature and seriousness of the

offense and the character of the offender.’ ” United States v.

Snelling, 14 M.J. 267, 268 (C.M.A.1982) (quoting United

States v. Mamaluy, 10 U.S.C.M.A. 102, 106-07, 27 C.M.R.

176, 180-81, 1959 WL 3587 (C.M.A.1959)). The appellant

contends that because he is afflicted with Acquired Immune

Deficiency Syndrome (AIDS), a dismissal would harm his

ability to obtain treatment for that disease and endanger his

life. He urges that this court give “substantial weight” to his

medical condition in determining an appropriate sentence.

“Sentence appropriateness involves the judicial function of

assuring that justice is done and that the accused gets the

10c

punishment he deserves.” United States y. Healy, 26 M.J.

394, 395 (C.M.A.1988). Clemency, on the other hand,

“involves bestowing mercy.” Jd. However, Congress did not

give this court the power to bestow clemency on a deserving

accused when it enacted Article 66, UCMJ. See id. at 395-

96. Regardless of how sympathetic we may be to the

collateral consequences of the appellant's dismissal, we are

powerless to grant clemency.

Considering the record as a whole and the nature and

seriousness of the appellant's misconduct, as well as his

military character and his medical circumstances, we hold

that the sentence approved by the convening authority is both

just and appropriate. The appellant's misconduct merits

separation under conditions of dishonor.

Accordingly, the finding of guilty and the sentence

affirmed.

Senior Judge CAIRNS and Judge BROWN concur.

llc

APPENDIX D

57 M.J. 468

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

Daily Journal

Monday, October 28, 2002

03-018

PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0570/AR. U.S. v. Lawrence R. Ragard. CCA 98-

01508.

' SULLIVAN, Senior Judge (dissenting)*:

I would grant review of Issues I and II raised by appellant:

I. DO DOUBLE JEOPARDY PRINCIPLES UNDER THE FIFTH

AMENDMENT BAR THE COURT-MARTIAL OF A SOLDIER WHO

HAS (1) ENTERED INTO A PRETRIAL DIVERSION AGREEMENT

WITH THE DISTRICT OF COLUMBIA, A FEDERAL ENTITY FOR

THE SAME MISCONDUCT, AND (2) SATISFIED THE TERMS OF

THAT AGREEMENT?

II. DO PRINCIPLES OF CONTRACT LAW PREVENT A

SOVEREIGN FROM PROSECUTING APPELLANT AFTER HE

SUCCESSFULLY COMPLETES A PRETRIAL DIVERSION

AGREEMENT ENTERED INTO BY REPRESENTATIVES OF THAT

SAME SOVEREIGN FOR THE SAME CONDUCT? |

* Senior Judge Eugene R. Sullivan took final action in this case prior to

October |, 2002.

ld

APPENDIX E

58 M.J. 130, 58 M.J. 129

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

Daily Journal

Tuesday, January 7, 2003

03-062

PETITIONS FOR RECONSIDERATION DENIED

No. 02-0570/AR. United States, appellee, v. Lawrence R.

Ragard, appellant. CCA 98-01508. Appellant's petition for

reconsideration of the order of the Court issued on October

28, 2002, is denied.

le

APPENDIX F

NOTICE OF ELIGIBILITY FOR INCLUSION

IN THE PRE-TRIAL DIVERSION PROGRAM

Date:

Defendant’s Name:

Date of Arraignment:

The Office of the Corporation Counsel has

determined that you may be eligible for enrollment in its Pre-

Trial Diversion Program, for persons charged with Indecent

Exposure. If you wish to be interviewed and screened for

the Program, you should report to the Probation

Department located at 409 E Street, N.W., Room 312.

Report no later than five working days from today,

between the hours of 10:00 A.M and 12:00 P.M or 2:00

P.M. and 4:00 P.M., Monday through Thursday. Bring

with you, (1) this form, (2) your notice to return to Superior

Court.

If you do enroll in the Program, sign an agreement to

perform 40 hours of Community Service and: abide by the

conditions of that agreement, the Office of the Corporation

Counsel will dismiss the charge against you at the conclusion

of the agreed upon community service. If you do not abide

by the terms of the agreement, the charge presently against

you will be prosecuted in regular fashion.

Mary Ann Rodgers

Chief, General Crimes Section

Criminal Division

If